[Cites 16, Cited by 0]
Bombay High Court
M.S.Dhillon vs Naresh R.Dhoot on 16 December, 2025
2025:BHC-AS:56126
FA-715-2004 J-C3.doc
Digitally signed
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
by
HUSENBASHA
HUSENBASHA RAHAMAN
CIVIL APPELLATE JURISDICTION
RAHAMAN NADAF
NADAF
Date:
FIRST APPEAL NO. 715 OF 2004
2025.12.18
21:02:41 +0530 WITH
CIVIL APPLICATION NO. 966 OF 2010
WITH
INTERIM APPLICATION NO. 1146 OF 2023
WITH
COURT RECEIVER REPORT NO. 10 OF 2023
WITH
COURT RECEIVER REPORT NO. 13 OF 2023
WITH
COURT RECEIVER REPORT NO. 21 OF 2023
Mr. M. S. Dhillon
22, Hina Apartment,
Yari Road, Andheri (W),
Mumbai- 400061 ...Appellant/Applicant
(Ori. Defendant)
Versus
Naresh R. Dhoot
204, Wildwood Park,
Yari Road, Versova, Andheri (W),
Mumbai- 400 061 ...Respondent
(Ori. Plaintiff)
WITH
CIVIL APPLICATION NO. 1669 OF 2003
IN
FIRST APPEAL NO. 715 OF 2004
Naresh R. Dhoot ...Applicant/Respondent
In the matter between
Mr. M. S. Dhillon ...Appellant
Versus
Naresh R. Dhoot ...Respondent
****
Mr. Ravindra Bhat a/w Ms. Lata Wadhwani for the Appellant.
Mr. Naresh R. Dhoot, Respondent-in-person present.
Mr. Shyam Chopda, O.S.D., from Court Receiver office present.
****
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FA-715-2004 J-C3.doc
CORAM : M.M. SATHAYE, J.
RESERVED ON : 20th SEPTEMBER, 2025
PRONOUNCED ON : 16th DECEMBER, 2025
JUDGMENT :
1. This first appeal is filed challenging judgment and decree dated
20.08.2002 passed by the City Civil Court at Mumbai in Short Case
Suit No.116 of 1998. By the impugned judgment and decree, the suit
is decreed, thereby restraining the Appellant / Defendant, his
servants, agents, hirelings or any other person claiming through him
permanently from disturbing and dispossessing or interfering with
peaceful use, occupation and possession of suit flat, without
following due process of law. The Appellant is Defendant and
Respondent is Plaintiff. Flat No.1/204, Wildwood Park, Yari Road,
Versova, Andheri (W), Mumbai - 400 061 is subject matter of the suit
('the suit flat' for short).
2. The Case of the Plaintiff is as under :
2/1) On 04.11.1991, an agreement was executed and duly
registered for suit property in the name of Plaintiff and his wife for
which he made part payment of Rs. 25,000/- by cheque. Plaintiff
took Housing loan from Life Insurance Corporation of India ('LIC' for
short) for sum of Rs. 1,25,000/- for which the said flat was
mortgaged with LIC. Plaintiff paid all dues and charges payable to the
Flat owners Association in respect of suit flat. The said Flat owners
Association have formed a Co-operative Housing Society Ltd. ('CHS'
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for short) viz. Narendra Gupta CHS Ltd.
2/2) Plaintiff received ration card at that time. Plaintiff also
installed electric meter in the suit flat and paid bills regularly. Also,
he installed telephone in the suit flat and paid bills thereof.
2/3) Defendant was dealing with purchase of shares through
the Dhoot Capital Analyst Private Limited ('Dhoot Capital' for short)
which is a share broker Ltd. company. During course of the
transactions, the Defendant incurred heavy loss in shares. The
Defendant has to pay a substantial amount to the directors of the
above said company i.e. Plaintiff's wife-Mrs. Rajani Dhoot and his
father.
2/4) When the Plaintiff's wife demanded the money due from
the Defendant, he avoided to pay and adopted high-handed and
criminal methods. Defendant is giving threats since 06.01.1998 and
visiting the suit flat along with his hirelings continuously.
2/5) On 07.01.1998, Defendant's hirelings visited the suit flat
at about 6:00 pm., and tried to dispossess the Plaintiff and his family
members. At that time Plaintiff and his neighbors resisted and
immediately visited police station to lodge complaint but the
concerned police station refused to register the complaint saying the
said action is of civil nature and therefore, this suit is filed seeking
perpetual injunction against the Defendant not to disturb Plaintiff's
possession of the suit flat.
3. The Appellant / Defendant filed written statement contending
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inter alia as under:
3/1) That suit is filed on 08.01.1998 and Plaintiff was not in
possession on the date of suit. That the Defendant was in exclusive
possession of the suit flat and Plaintiff dispossessed him armed with
an injunction order of the Court. That according to him, actual events
are as follows.
3/2) On 06.01.1996, eight cheques were given by Defendant
and his son amounting to Rs. 14,15,000/- to Plaintiff for purchase of
suit flat and acknowledgment receipts were handed over to his wife.
3/3) Subsequently, Plaintiff handed over peaceful and vacant
possession to the Defendant and there was an understanding that
sale deed will be executed later on, as the relationship between the
parties were cordial. Understanding was also that, Plaintiff would pay
all the outgoings till the sale deed is executed.
3/4) The supposed creditors of the Plaintiff visited the suit flat
asking for his whereabouts as they had to recover the amounts.
3/5) That 07.12.1996, 26.12.1996 and 30.12.1996, letters
were addressed to the Defendant by the Plaintiff.
3/6) From January 1997, the Plaintiff started threatening the
Defendant for possession of suit premises. On 12.01.1997, Plaintiff
sent some persons and threatened the wife of the Defendant, after
which N.C. Complaint Nos. 149 of 1997 and 165 of 1997 were
lodged with D.N. Nagar Police Station ('Police station' for short).
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Defendant initiated proceedings under Sec. 145 of Code of Criminal
Procedure,1973 ('Cr.PC' for short) vide C.C. No. 13/N of 1997 in 44 th
Metropolitan Magistrate Court, Andheri ('44th MM Court' for short).
3/7) On 20.02.1997, Plaintiffs' wife and mother attempted to
enter suit flat forcefully resulting in N.C. Complaint No. 801 of 1997.
On same day, Plaintiff was arrested upon Complaint under section
138 of Negotiable Instruments Act, 1881 ('NI Act' for short) r/w 420
of Indian Penal Code, 1860 ('IPC' for short) filed by Mr. D'cruz, one of
the creditors of Plaintiff.
3/8) On 21.02.1997, several other people filed complaint
against Plaintiff and his wife for cheating.
3/9) On 25.02.1997, Plaintiff applied for police panchnama of
suit flat at 44th MM Court.
3/10) On 17.03.1997, Plaintiff was granted bail with
conditions that he would clear all dues.
3/11) On 17.04.1997, Plaintiff gave PoA to Defendant's wife
for settling all matters, with respect to Plaintiff and Defendant.
3/12) On 23.04.1997, Plaintiff lodged complaint against 14
persons (alleged creditors) to settle scores.
3/13) On 12.06.1997, he was again arrested and released on
26.06.1997.
3/14) On 20.08.1997, Plaintiff filed Suit No. 3205 of 1997 in
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High Court under Section 6 of the Specific Relief Act,1963 to get back
possession of suit flat from Defendant.
3/15) On 06.08.1997, reply was submitted by Plaintiff in
complaint under Section 145 of Cr.PC.
3/16) On 10.09.1997, wife of the Defendant gave undertaking
that she will return all the articles of Plaintiff in suit flat. Accordingly
on 23.09.1997, the Police of the concerned Police Station took back
the articles.
3/17) The Plaintiff filed present suit on 08.01.1998, and moved
the evening Judge, suppressing all material facts. The Plaintiff then
armed with an injunction order, with the help of his wife and
three/four ladies, dispossessed the Defendant and took possession
from the son of the Defendant at 10:00 pm on same day. Defendant
rushed to Police station and filed complaint. Panchnama of suit
premises was drawn at 02.30 am.
3/18) Notice of Motion was made returnable on 15.01.1998.
After hearing the Defendant, he was put back in possession, by
appointing him as agent of the court receiver.
3/19) Aggrieved by the same, Plaintiff approached this Court
by filing Appeal from Order No. 67 of 1998, but this Court refused to
interfere. Plaintiff approached the Hon'ble Supreme Court by filing
Special Leave Petition No. 2914 of 1998, which was dismissed.
3/20) Plaintiff lodged Complaint No. 1666 of 1998 on
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02.10.1998 against Defendant, his wife and son. Plaintiff tried to
implicate the wife of the Defendant in C.R. No. 272 of 2000 accusing
her of offence under section 354 of IPC.
4. Plaintiff amended the suit on 29.09.2001 and contended as
under :
4/1) Plaintiff's Motor car, computers, and other office
equipments were hypothecated to New India Co-operative Bank
Limited ('New India Bank' for short) in 1994-95 for term loan for M/s
N. R. Dhoot & Co. Chartered Accountants ('Dhoot & Co.' for short).
Plaintiff's wife and father are directors of Dhoot Capital and Plaintiff's
wife was also a proprietor of Dhoot Investments, carrying on business
as portfolio manager and Investment Consultant and sub-broker
dealing in securities and shares. The said Dhoot Capital, Dhoot
Investments, Dhoot & Co. and Dhoot Exports Private Limited have
their office in suit flat and also one Sigma Minerals Limited of which
Plaintiff was auditor have their head office at suit premises since
1992 till March 1997 and registered office at Jodhpur.
4/2) Defendant as well as various other persons used to deal
with said companies and used to invest money with said companies
for various purchase and sales in securities and shares. On
30.04.1992, there is an agreement executed between Defendant and
Dhoot Investments. On 12.01.1995, agreement is executed between
Dhoot Capital and Defendant about share dealings. Plaintiff was also
a tax and finance consultant of Defendant and his entire family.
4/3) Defendant was due for payment of Rs. 6,55,986/- to
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Dhoot Capital in regular course of business and also to pay
Rs.6,700/- to Plaintiff towards personal temporary loan.
4/4) On 07.12.1996, Plaintiff had to travel to Chennai for his
audit work and therefore he wrote a letter as a matter of practice to
inform his schedule to Defendant.
4/5) On 26.12.1996, after arriving at Bombay, Plaintiff visited
Pune for audit work and from Pune also he wrote a letter to
Defendant like various other clients. Plaintiff went from Pune to
Solapur and Hyderabad for audit work and thereafter to Jodhpur
( being his native place) for audit work and personal purpose with his
family. Besides this, there was no other letter issued by Plaintiff to the
Defendant.
4/6) His signature on letter dated 30.12.1996 and on writing
dated 06.01.1996 is forged by Defendant. At no point of time Plaintiff
or his family sold the said flat to the Defendant and nor was there
any intention to sell, nor was the possession of suit flat ever handed
over to Defendant.
4/7) Due to two deaths in Plaintiff's family, he had to extend
the stay in Jodhpur.
4/8) Plaintiff came to Mumbai on 20.02.1997 at around 6:30
p.m. and on that day after dropping his family at the gate of society,
Plaintiff went to ISKCON Mandir to attend Sandhya Aarti. Plaintiff's
wife and mother could not enter the suit flat as Defendants wife had
put up another lock on door. Within few minutes of his wife, mother
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and children going to suit flat, Defendant's wife arrived there and
Plaintiff's mother was taken to Police station. When Plaintiff got
knowledge about incidence from his wife, he went to Police station,
where he was taken for interrogation and then immediately Plaintiff
was arrested in a complaint lodged by one Mrs. Yvonee D'cruz u/s
420 of IPC and another complaint by Defendant's wife that Plaintiff
was trying to dispossess her from suit flat and that was likely to cause
breach of peace. That on 13.01.1997, the Plaintiff was at Jodhpur
and suit flat was in his Possession under his lock and key and
therefore there was no question of any threat by Plaintiff to anyone.
4/9) On 24.02.1997, members of Society had lodged a
complaint with Police station for house break of suit flat.
4/10) On 21.03.1997, Plaintiff was released on conditional bail
to settle all complaints filed u/s 138 of NI Act.
4/11) During Plaintiff's arrest and custody between 21.02.1997
to 21.03.1997, his wife and family learnt that Defendant with his
wife and children along with other persons forcibly obtained
possession of suit flat.
4/12) On 23.02.1997, Plaintiff's Advocate informed 44th MM
Court about housebreak.
4/13) On 17.03.1997, anticipating Plaintiff's release on bail,
Defendant's wife prepared a Power of Attorney ('PoA' for short).
4/14) After release, on 21.03.1997, when Plaintiff went to suit
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flat he found that he had been dispossessed by way of breaking open
suit flat by Defendant and his family members along with Narayan
Patel, Chetan Patel, Kader Sandrewala and Rais Bichhu.
4/15) On 27.03.1997, New India Bank filed complaint with
Police station against Defendant's wife for removing hypothecated
articles from suit flat.
4/16) On 07.04.1997, when the Plaintiff went to attend 44th
MM Court in complaint filed by Defendant's wife, he was made to
sign the said PoA under coercion and threat of arrest and defamation
by publishing article in newspaper by Defendant's wife and other
persons. Plaintiff inserted name of his brother in law -Suresh Birla in
the PoA quickly to avoid its misuse. The Plaintiff was made to make a
payment of Rs. One lakh to Mrs. D'cruz and the receipt of said
payment was signed as a witness by Defendant's wife. The PoA is not
signed by Plaintiff's wife.
4/16) On 22.04.1997, Plaintiff filed complaint u/s 380 and 114
of IPC at 44th MM Court for Order and Inquiry u/s 156(3) of Cr.PC
being complaint No.10/I & R. of 1997 against Defendant's wife &
other persons for House breaking and theft in suit flat. Inspite of the
complaint no step was taken by Police station.
4/17) On 23.04.1997, when Plaintiff learnt that the
Defendant's wife was trying to sell the suit flat using PoA, by
Advocate's notice the said PoA was revoked by Plaintiff.
4/18) On 27.04.1997, immediately the Defendant's wife got
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the said PoA identified by Advocate Pandey and notarized by one Mr.
Krishnakant S. Kambat at Bandra in absence of Plaintiff. Although the
PoA was made to be submitted in complaint No.13/N/97, it was
never submitted.
4/19) On 12.06.1997, once again Plaintiff was arrested for
about 14 days.
4/20) On 26.06.1997, the Plaintiff was granted permanent bail.
4/21) On 20.08.1997, Plaintiff filed suit u/s 6 of Specific Relief
Act - Suit No. 3205/1997 in Hon'ble High Court seeking possession of
suit flat.
4/22) After Plaintiff approached the Commissioner of Police, an
FIR was lodged on 09.09.1997 at Police station and police arrested all
accused.
4/23) On 10.09.1997, in complaint No.13/N/97 and 10/I/R of
1997, Defendant's wife admitted the offence of House breaking and
theft, and also agreed to give back the articles and possession of suit
flat. Accordingly, affidavit was made and duly identified by her
Advocate Suhas Ghag.
4/24) On 17.09.1997, New India Bank addressed letter to
Defendant to return the hypothecated articles.
4/25) On 23.09.1997, Defendant's wife returned some articles
and promised to return remaining articles on next day. Defendant's
wife applied for Anticipatory Bail.
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4/26) On 25.09.1997, by showing forged letters dated
06.01.1996 and 30.12.1996 and PoA, Defendant's wife secured bail.
Also, undertaking was given by her that she will return remaining
articles; however, she did not return any articles thereafter.
4/27) Plaintiff wrote various letters to Police station and
applied to 44th MM Court, for cancellation of bail.
4/28) Defendant started alteration in the suit flat in December,
1997. On 08.12.1997, The Society filed complaint with Police station
that the Defendant was illegally occupying the suit flat and was
carrying illegally alterations.
4/29) On 10.12.1997, Defendant's wife approached Plaintiff for
overall settlement and accordingly affidavit was signed by
Defendant's wife. Also there is paper with said Affidavit on which
amount agreed to be paid by Defendant's wife as per settlement was
noted with name and signatures of Narayan Patel, Chetan Patel, Rais
Bicchu, Mr. Kader Sandrewala and Mr. Kimatkar and Mrs. B. R.
Dholika. Notary attested true copy of said document was handed over
to Plaintiff and he was assured by Defendant's wife that she will
submit the said document in 44th MM Court but neither Defendant
nor his wife submitted the same to the Court. On said day
Defendant's wife, Plaintiff and Suresh Birla went to the suit flat and
Defendant's wife handed over keys and quiet, vacant and peaceful
possession of the suit flat to the Plaintiff. Thereafter, Plaintiff made
one telephone call to his wife from domestic telephone No.6314259.
Thereafter he instructed his wife to take back papers and brief from
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his Advocate.
4/30) On 05.01.1998, Defendant and his family again started
threatening the Plaintiff of physical assault. Hence, Plaintiff visited
another Advocate for joining the Society as party Defendant in High
Court Suit No.3205/1997 and accordingly Chamber Summons and
Affidavit in support thereof were prepared.
4/31) On 06.01.1998, Plaintiff started residing with his family
in the suit flat.
4/32) On 07.01.1998, Plaintiff sent letter to Advocate to
withdraw the said Suit No. 3205/1997. Plaintiff's Advocate had
already served Chamber summons and Affidavit upon Society by
then.
4/33) Defendant once again started harassing Plaintiff and his
family when Plaintiff's wife approached the Defendant to pay money
which is due and payable to Dhoot Capital. That time, Defendant
threatened the Plaintiff that he will face dire consequences if money
invested with Dhoot Capital was not returned.
4/34) That Defendant had put the money in the said company
for buying and selling the shares and securities in stock market and
incurred losses. There is no question of sale of suit flat.
4/35) On 08.01.1998, present suit was filed asserting
possession and apprehension of disturbance.
4/36) That after injunction was granted to him in above suit on
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08.01.1998, the Defendant took out Notice of Motion, wherein forged
letters dated 06.01.1996 and 30.12.1996 and PoA dated 17.03.1997
were relied upon.
4/37) Thereafter, Plaintiff filed Criminal Complaint against
Defendant, his wife and son being Complaint No.1666/S/98 and the
said complaint was expedited by Hon'ble 44 th MM Court. On
23.01.1998, chargesheet was filed in 44th MM Court. On 03.08.1999,
Charge was framed u/s 380 and 114 of IPC.
4/38) In the meantime, On 23.09.1997, 25.11.1997 and
09.01.1998, panchnama was carried out of suit flat.
5. The Appellant / Defendant filed additional written statement
in response to amended plaint contending inter alia as under:
5/1) Defendant denied that agreement dated 30.04.1992 and
12.01.1995 were executed (about investments) and also denied that
Plaintiff was his consultant. Defendant denied that amount of Rs.
6,55,986/- or 6,700/- were to be paid.
5/2) He contended that Plaintiff had issued a letter dated
06.01.1996 acknowledging the receipt of Rs. 14,15,000/- by various
cheques (eight in number). That Plaintiff had given exclusive and
peaceful possession of suit flat on 06.01.1996, after receipt of sale
proceed. That therefore there is no question of him taking forcible
possession in January 1997, as he was already in possession.
5/3) He contended that Plaintiff had signed PoA dated
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07.04.1997 voluntarily in favour of Defendant's wife to settle the
dues. He denies any admission made with regards to house breaking.
However, he admitted that his wife only agreed to return back
whatever goods, if lying in suit flat.
5/4) He denied signing of affidavit dated 10.12.1997. He
claimed it to be forged. He contended that Plaintiff has not
mentioned that he is in possession, in any of the criminal proceedings
until the year 2000.
5/5) That on 03.11.1997, Defendant wrote to the society to
enroll him as member. That on 02.12.1997, grievance was made by
Defendant's son to post office that no mails are received at the suit
flat. That on 09.12.1997, he has applied for ration card. That these
actions would not have been made, if he intended to return back the
possession of the suit premises.
SUBMISSIONS OF THE APPELLANT
6. Mr. Bhat, learned counsel for the Appellant made elaborate
submissions, taking the Court through various documents on record.
A brief summary of his submissions, as filed by him, is as under :
6/1) It is the case of the Defendant that upon execution of the
document at Exh. 5 being letter dated 06.01.1996, and upon making
the entire payment towards the sale consideration of Rs.14,15,000/-
and the same being admitted by the Plaintiff as received by him, the
Plaintiff says that the said amount is towards the sale and purchase of
shares.
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6/2) That the Plaintiff had handed over the possession of the suit
premises to the Defendant in January 1996. The Defendant continued
to remain in possession of the suit premises after getting possession
since January 1996 uptill 08.01.1998 when they were forcibly
dispossessed from the suit flat in the midnight of 08.01.1998 and
early morning of 09.01.1998.
6/3) That after filing of the suit, the Plaintiff has come out with a
totally new version by way of amendment of the Plaint, wherein for
the first time, it is stated by him that he was dispossessed from the
suit premises on 20.02.1997 and was put back in possession of the
suit premises on 10.12.1997 upon execution of an Affidavit filed by
wife of Defendant Mrs. Dhillon pursuant to the amicable settlement
between the two.
6/4) That the Plaintiff's case after the amendment of the Plaint in
the year 2001, has split of factum of possession into three parts from
(i) January 1996 until 20.02.1997 (Plaintiff alleges to be in
possession); (ii) 21.02.1997 until 10.12.1997 (Defendant is in
possession); and (iii) 11.12.1997 until 08.01.1998 (Plaintiff alleges
to be in possession).
6/5) That the case as put up by the Plaintiff about the fact of he
being in possession of the suit premises on 08.01.1998 cannot be
believed nor can the alleged Affidavit dated 10.12.1997 be believed
because:
6/5/i) The Plaintiff has not examined anybody (except PW-2
who is a bank official) to show that the Affidavit dated 10.12.1997
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was in fact executed by Mrs. Dhillon nor could the Plaintiff prove by
examining witnesses that he was put in possession of the suit flat on
10.12.1997;
6/5/ii) The Plaintiff did not examine any witness to show that
after 10.12.1997 and on 08.01.1998, he was factually in possession
of the suit flat. The Plaintiff could not call upon a single witness
including his immediate neighbour or any member of the Society to
prove that he was in possession;
6/5/iii) The Plaintiff could not falsify the panchnama's dated
01.10.1997 and also the panchnama dated 8th midnight and
09.01.1998. In particular, the panchnama dated 8th midnight and 9th
morning of January 1998 shows that there were articles entirely
belonging to the Defendant were lying in the suit flat.
6/5/iv) That the Plaintiff did not cross examine the Defendant on
vital issues;
6/5/v) The Plaintiff could not produce even a single document to
show that there was in fact transaction of sale and purchase of shares
between the Plaintiff and the Defendant by examining material
witnesses;
6/5/vi) The Plaintiff has not even challenged the preliminary order
passed in proceedings under Section 145 of the Cr. PC. filed by the
wife of the Defendant and hence, the same remains unchallenged
that the Defendant was in possession on the date of filing of the
complaint i.e. 13.01.1997.
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6/5/vii) Even in the proceedings filed by the Plaintiff for theft
and housebreaking and under Section 156 of the Cr.PC. against the
Defendant and others, the cause title of the Complaint shows that the
Plaintiff has no place of residence.
6/5/viii) The Plaintiff has not been able to disprove the case of the
Defendant that the Defendant had purchased the suit flat and had
paid the entire sale consideration for the same and thereupon the
Defendant was put in possession of the suit flat in January 1996
pursuant to the document at Exh. 5 being letter dated 06.01.1996;
6/5/ix) That the fact that upon receipt of the entire
consideration and upon being put in physical possession of the suit
flat towards part performance and under Section 53A of the Transfer
of Property Act and what remained to be done was execution of the
proper sale deed as per mutual understanding between the parties;
6/5/x) That the Trial Court overlooked all the material and
overwhelming evidence including the court proceedings to show that
the Defendant was in fact in possession of the suit flat. That the Trial
Court did not even mention about High Court Suit No.3205 of 1997
being filed on 20.08.1997 under Section 6 of Specific Relief Act by
the very Plaintiff against the same Defendant wherein he had asked
for possession of the same suit flat and which was pending. The
Plaintiff withdrew the same only in October 2001. In fact, the
desperation of the Plaintiff could be seen when he admits in his cross
examination that his wife Mrs. Dhoot also filed a Suit for possession
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of the very suit flat against the Defendant which finally was
dismissed.
6/5/xi) That Trial Court also overlooked the fact that there was a
general PoA executed by the Plaintiff in favour of the Defendant on
04.04.1997;
6/5/xii) That Trial Court also did not consider the Chamber
Summons and the Affidavit in Support thereof which was affirmed by
the Plaintiff on 05.01.1998 and that there was a notice of the
Advocate of the Plaintiff dated 07.01.1998 addressed to the
Defendant and her family members mentioning therein that they
would be moving High Court on 09.01.1998.
6/5/xiii) That Trial Court also overlooked the fact that telegram
addressed to the Defendant about the Plaintiff moving the Hon'ble
Court on 09.01.1998.
6/5/xiv) That Trial Court also overlooked the panchnama of 8 th
midnight and morning of 09.01.1998 which showed that the
belongings of the Defendant were lying in the suit premises and
which proves that the Plaintiff was not in possession of the suit flat as
on 08.01.1998 when the suit was filed.
6/5/xv) That Trial Court accepted the contention of the Plaintiff
about the execution of the affidavit dated 10.12.1997 when the
original was not placed on record. That Trial Court got carried away
by an imaginary telephone call to come to a conclusion that the
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Defendant had put the Plaintiff in possession of the suit flat on
10.12.1997.
6/5/xvi) That Trial Court also did not appreciate that when the
suit was initially filed, proceeded on the apprehension that the
Defendant was threatening the Plaintiff from dispossessing him from
the suit flat. That Trial Court overlooked the fact that the Defendant
and her husband was not in India on the relevant dates. That
Defendant had proved the said fact by producing the passports on the
record.
6/5/xvii) That Trial Court had overlooked all the evidence which
otherwise proved that the Plaintiff had sold the suit flat to the
Defendant by virtue of Exh.5 and that put the Defendant in
possession of the same.
6/5/xviii) That the document dated 06.01.1996 was duly executed
by the Plaintiff and pursuance thereto the Defendant was put in
possession of the suit flat by the Plaintiff.
6/6) So far as the Issue about Affidavit dated 10.12.1997 is
concerned, it is submitted that the Defendant has proved the same to
be fabricated and forged document and which is not signed by the
Defendant.
6/7) So far as the question of Society maintenance, it is
submitted that the Defendant has documentary evidence to show that
they have been paying the Society maintenance all throughout and
have paid maintenance charges till September 2025. The Society also
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endorsed the case of the Defendant that there are no dues payable by
the Defendant. In fact, whatever payments were due towards
maintenance with interest thereon were in fact amounts due and
payable prior to 1996. The Plaintiff has relied upon bills and that too
of 1996 alone without showing payment receipts. The only payment
alleged to have been paid towards the society maintenance of
Rs.40,000/- which the Society denies having received.
6/8) That Plaintiff has filed a false suit with
different/contradictory versions about possession. That Plaintiff
cannot be rewarded for his own wrong.
6/9) It is prayed that the Plaintiff be directed to pay the
Society maintenance and other charges including the charge of the
Court Receiver, and the department of the City Civil Court, and the
office of the Court Receiver be directed to refund the deposits with
interest and the said amounts deposited by the Defendant on various
occasions including the security and royalty (with interest) to the
office of the Court Receiver and also the office of the Hon'ble City
Civil Court at Bombay.
6/10) Lastly, it is prayed that the First Appeal filed by the
Appellant be allowed with exemplary costs against the Respondent.
7. Mr. Dhoot, party-in-person Respondent has made submissions
in support of the impugned Judgment and Decree. He submitted as
under:
7/1) He has shown various documents from the evidence in
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support of his case. His submissions, in short, are that the document
dated 06.01.1996 is forged document and the Defendant was never
put in possession under that document. That in the midnight between
20.02.1997 & 21.02.1997, when the Plaintiff had returned from
Jodhpur with his family, his family could not gain access to the suit
flat as they were obstructed by another lock illegally put on suit flat.
That when the parties approached the police station, the Plaintiff was
arrested in connection with one complaint filed by third person Mrs.
D'cruz and also on complaint of the Defendant's wife. That he was in
custody for about a month time and after he was released on bail he
learnt that during the time when he was in custody, the Defendant
had illegally taken possession of the suit flat.
7/2) That he filed suit under Section 6 of the Specific Relief
Act, 1963 in the High Court for recovery of the possession from
Defendant. That during pendency of the High Court suit, the dispute
between the parties came to a stage where the Defendant executed
an affidavit dated 10.12.1997 accepting that possession would be
handed over and pursuant thereto the keys of the suit flat were
handed over to the Plaintiff in presence of his brother-in-law - Mr.
Suresh Birla. That thereafter the Plaintiff and his family started
residing in the suit flat. Since the Plaintiff had received back
possession, he instructed his advocate to withdraw the High Court
suit on 07.01.1998. However, by that time, the Chamber Summons to
implead the Society was already served on the Defendant.
Nevertheless, the High Court suit was instructed to be withdrawn as
possession was received back. That the case papers and balance fees
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were also returned back to his advocate.
7/3) However, on 08.01.1998 the Defendant and his family
members again threatened the Plaintiff and there was an
apprehension about disturbance of possession. Therefore, the suit
was filed for seeking perpetual inunction simplicitor. The Plaintiff
had moved a Notice of Motion seeking interim injunction for
restraining Defendant from disturbing possession, in which ad-
interim injunction order was passed on 08.01.1998. That its
returnable date was 15.01.1998, when the Defendant appeared and
filed a Notice of Motion for appointment of Court Receiver, in which,
the Defendant relied upon a forged document dated 06.01.1996 and
PoA dated 07.04.1997 and misled the Court which resulted into an
order being passed putting the suit flat in custody of the Court
Receiver and subsequently, Defendant was put in possession as agent
of the Court receiver.
7/4) That the letter dated 06.01.1996 is a fabricated
document and Defendant was never put in possession of suit flat
under the said letter. That the Defendant misused the cordial
relationship between the parties and illegally dispossessed the
Plaintiff. That the Trial Court has considered the evidence on record
in proper perspective and the suit has been decreed on finding that
the Plaintiff was in possession on the date of filing of suit.
7/5) That the Defendant has tried to misled the Court at
various stages and the fact of parties being engaged for investment
transactions in share market has been falsely denied.
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7/6) That various panchnamas drawn on suit flat (three
times) during the pendency of the proceedings, clearly indicates that
the Plaintiff was initially dispossessed in February 1997 and was put
back in possession in December 1997 and on 08.01.1998 the Plaintiff
was threatened again. Therefore, present suit was necessitated.
7/7) The Respondent party-in-person has made various
prayers to put him back in possession by terminating Agency
Agreement of the Appellant with the Court Receiver. He has prayed to
punish the Appellant for openly flaunting orders of the Court and for
violating the undertakings singed while acting as agent of Court
Receiver. He has further prayed to punish the Appellant for illegal
internal alteration made in the suit flat and for not restoring the
same. He further prayed to punish the Appellant for changing name
plates. He has further prayed to release the amount lying with
Registry towards society dues. He has prayed for heavy cost to be
imposed upon the Appellant for wasting time of the Court and for
playing fraud on the judiciary.
8. From the aforesaid submissions, following POINTS arise for my
determination :
1. Whether the Plaintiff/Respondent proves that he was in
possession of suit flat on date of filing of suit and is therefore
entitled to Injunction? YES
2. Whether the Plaintiff/Respondent proves that letter dated
06.01.1996 is a fabricated document insufficient to prove case of
sale of suit flat? YES
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3. Whether Defendant/Appellant proves that the
Plaintiff/Respondent by his letter dated 06.01.1996 put
Defendant/Appellant in possession of the suit flat? NO
4. Whether Defendant/Appellant proves that affidavit dated
10.12.1997 is fabricated with forged signature of
Defendant/Appellant? NO
5. What order and reliefs? Appeal is dismissed.
REASONS AND CONCLUSIONS
9. Both sides have taken the Court through various documents on
record in support of their rival cases, which will be referred to at
appropriate places in the paragraphs to follow.
10. Let us consider the oral evidence of the Plaintiff. The Plaintiff
has entered the witness box as PW-1 and stated on oath as under :
10/1) In Paragraph No. 10, he stated that there was a written
agreement executed between the two investment companies (which
are owned and run by Plaintiff) and Defendant for sale/purchase of
shares from stock-market on 30.04.1992 and 12.01.1995. That the
said original agreements were kept in suit flat but in February/March,
1997, they were stolen from the suit flat during house-breaking and
theft committed by the Defendant and four other persons.
10/2) In Paragraph No.13, he further stated that, on
20.02.1997, he got arrested in one complaint by Mrs. D'cruz which
was made at the instance of the Defendant and his wife.
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10/3) In Paragraph No. 35, he further stated that, when
Defendant's son- Aditya Dhillon submitted an un-dated application
and fabricated PoA and fabricated alleged possession letter dated
06.01.1996 to the Society for becoming member, the chairman
informed him about the said letter and when he inspected the records
of the said Society then he came to know about the alleged
documents. He has stated that he has never signed the document
dated 06.01.1996. He further stated that, during the hearing of the
Notice of Motion and while inspecting the documents of the Society
at that time, he saw the letter dated 06.01.1996 for the first time.
10/4) In Paragraph No. 41A, he has further stated that when
on 29.03.1997, his Advocate Mr. Gandhi filed complaint to Police
Station on his instructions, the police failed to initiate action and
therefore, he filed complaint in 44 th MM Court for investigation u/s
156(3) of Cr.PC., accordingly, an order was passed, but despite the
order, Police did not initiate action. Despite frequent reminders,
investigation was not carried out. Hence, on 09.09.1997, he
personally contacted the Commissioner of Police, Mumbai on whose
intervention, FIR was filed.
10/5) In Paragraph No. 45, he has denied any knowledge of
letter dated 30.12.1996 and claimed it to be forged.
10/6) In Paragraph No. 47, he further stated that, all the
original telephone bills as well as electricity bills were kept in suit flat
but were stolen by the Defendant during housebreak. That all
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payments of the said bills were made by way of cheques for which
entries are reflected in the record.
10/7) In Paragraph No. 49, he further stated that, he signed
General PoA in favour of Mrs. Dhillon and Mr. Suresh Birla in respect
of suit flat on 07.04.1997 in the 44th MM Court and one xerox copy of
the said PoA was handed over by Mrs. Dhillon which did not bear the
seal of notary nor the sign of any identifying Advocate. Also he did
not attend any office of notary whose seal is appearing on PoA relied
upon by the Defendant.
10/8) In Paragraph No. 50, he has further stated that, the PoA
was not signed by his wife because there was a condition at the time
of settlement that Mrs. D'cruz and also Mrs. Dhillon will withdraw all
the cases against the Plaintiff. He has further stated about the seal
and sign of identifying Advocate on said PoA that on his enquiry, Adv.
Pandey informed that he has not identified his (Plaintiff's) sign but
he has identified the sign of Mrs. Dhillon on 27.04.1997.
10/9) In Paragraph No. 55, he has stated that, the keys of the
suit flat was handed over by the wife of the Defendant by fixing an
appointment at 44th MM Court at around 1:00 or 1:30 pm,
accordingly, Plaintiff, Mrs. Dhillon and Mr. Suresh Birla met at 44 th
MM Court. Mrs. Dhillon handed over the keys of the suit flat and
from there they went to the suit flat and in presence of Mr. Suresh
Birla, Mrs. Dhillon gave possession on 10.12.1997. That pursuant to
overall settlement arrived at, one affidavit was executed by Mrs.
Dhillon with letters promising to pay the creditors of the Plaintiff.
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Also she agreed that the liabilities of companies, of Plaintiff's wife
and Plaintiff's father would be paid by her. That since, the wife of the
Defendant was under fear of arrest, and also New India bank and
Society had filed complaint against her, she arrived at such
settlement.
10/10) In Paragraph No. 59, he has further stated that, the PoA
dated 07.04.1997 was signed under threat and coercion as Mrs.
D'cruz had made an application for cancellation of his bail. When
Plaintiff came to know that Mrs. Dhillon is likely to sell his flat by
using PoA, he revoked it by an advocate's notice, .
10/11) In Paragraph No. 60, he has further stated that, in last
meeting held with the Defendant on 28.12.1997, Mr. and Mrs.
Dhillon informed the Plaintiff and his wife that they are not going to
make any payment to the creditors and they threatened to dispossess
them from suit flat.
10/12) In Paragraph No. 62, he has further stated that, on
07.01.1998, the threat of dispossession was received from son of
Defendant Abhitabh Dhillon and his hirelings. That on 08.01.1998, at
around 11 am, one rationing officer, Mrs. Mane, visited suit flat in
respect of application made by Aditya Dhillon for issuance of Ration
card, she enquired with the neighbours to find out who was residing
in the suit flat and also asked Plaintiff's wife to produce her ration
card. That accordingly, Mrs. Dhoot handed over xerox copy of ration
card with covering letter to the officer who put stamp and sign as
received.
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10/13) In Paragraph No. 64, he has further stated that, on
07.01.1998, at around 6:30 pm, son of Defendant- Abhitabh
alongwith his hirelings attempted to dispossess Plaintiff and his wife.
Therefore, around the said time, Plaintiff visited Police Station for
lodging the complaint. That since his complaint was not registered,
he immediately went to the office of Adv. A.A.Mirza which is situated
adjacent to Police Station and after consultation, gave letter to
withdraw the High Court Suit. That said advocate informed the
Plaintiff that he has already sent notice to the Society in respect of
Chamber Summons which was served on the society in the morning
on same day.
10/14) In Paragraph No. 65, he has further stated that, on
08.01.1998, when he went to Adv. Mirza for filing the present suit, he
was not available hence, he contacted Mr. Singh who prepared the
plaint and necessary applications and at around 11:30 am, this
present suit was filed. That at around 2:00 pm, he went to serve
notice of injunction upon the Defendant at his residence at that time,
Defendant was not available but his son Abhitabh was there, who
accepted the papers but did not sign for acknowledgment. That when
he received the certified copy of the injunction order, he addressed a
letter to Police Station alongwith the copy of the injunction order and
handed over the copy of the injunction order to the chairman of the
society.
10/15) In Paragraph No. 69, he has further stated that, after
receiving an advice from advocate from the Supreme Court, he began
the search for the document dated 10.12.1997 and approached the
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notary Mr. Shaikh and Adv. Nandlal Dave, after which he obtained
the certificate and affidavit dated 15.06.1998 from both of them and
confirmed that they had identified the deponent of Affidavit dated
10.12.1997, in reference of settlement arrived between parties in
their presence.
10/16) In Paragraph No. 77, he has disclosed about the
transactions made in respect of sale/purchase of shares on behalf of
the Defendant. He stated that concerned company used to raise bill
as well as contract note, which were handed over to the Defendant by
respective companies. Since these documents are stolen, he does not
have copies, but he produced two statements signed by his wife.
11. Now let us consider the Cross-examination of Plaintiff.
11/1) In Paragraph No. 80, he admitted that, on date of filing
of suit, he was having a copy of PoA executed on 07.04.1997 but had
not shown to his Advocate. That when Defendant took out notice of
motion, at that time, he had seen the xerox copy of the application
filed by son of Defendant Mr. Aditya to the society for becoming
member. That Chairman Mr. Johri orally informed him that Mr.
Aditya had annexed one PoA dated 17.03.1997 and possession letter
dated 06.01.1996. That he orally demanded copy of the application
to Mr. Johri but it was not furnished. That he demanded inspection
of application and annexures thereon but no inspection was given by
the Chairman. That therefore he came to know about the contents of
letter dated 06.01.1996, only in first week of December 1997.
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11/2) In Paragraph No. 81, he has stated that, the letter dated
06.01.1996 was not on his own letterhead. That references given in
said letter about cheques except one of Rs. 11,000/- and another two
cheques of Rs. 1,00,000/-, remaining all cheques were received by
respective companies as deposed by him in examination-in-chief. He
further stated that he will be able to tell the details of date and
amount of giving loan to the Defendant and advances by said
companies to Defendant after perusal of statements and records
submitted in the Trial court.
11/3) In Paragraph No. 86, he stated that, his brother-in-law -
Mr. Suresh Birla and his wife Rajani were present when he signed the
PoA. Name of his wife was shown but she has not signed the same
because she did not agree. That he paid amount to Mrs. D'cruz
because she applied for the cancellation of his bail. That he executed
the PoA under threat.
11/4) In Paragraph No. 90, he stated that, the application for
cancellation of bail was fixed for hearing on 07.04.1997 and he
wanted to settle the matter with Mrs. D'cruz. He denied suggestion
that he agreed to sell the suit flat to Mrs. Dhillon and agreed to pay
interest till execution of conveyance deed. He also denied having
signed the letter dated 06.01.1996. He clearly denied that the
cheques referred in the said letter were issued for purchase of suit
flat.
11/5) In Paragraph No. 96, he further clarified about nature of
the settlement that Mrs. Dhillon will handover key of suit flat to
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Plaintiff and will make payment to company of Plaintiff after
deducting the amount settled with various persons (creditors) who
were involved in housebreaking and theft.
11/6) In Paragraph No. 100, he admitted withdrawal of High
Court suit in October 2001. He further deposed that the key of suit
flat was received by him but it was difficult for him to reside in suit
flat at that time, therefore, society was made party to suit.
11/7) In Paragraph No.103, he stated that, he cannot assign
any reason as to why a reference of the Affidavit of Mrs. Dhillon
dated 10.12.1997 is missing in his affidavit in support of Chamber
Summons.
11/8) In Paragraph No. 104, he has deposed that the telegram
was not sent to Defendant by him or his Advocate.
11/9) In Paragraph No. 105, he stood by his case about
affidavit dated 10.12.1997.
11/10) In Paragraph No. 106, he denied having written the
letter dated 30.12.1996.
11/11) He has remained firm on his statement about the
purchase of shares and adjusted losses of amounts mentioned in
letter dated 06.01.1996 and some personal loans advanced to the
Defendant. He further stood firm on his statements about being in
possession on 08.01.1998 i.e. date of filing of present suit. He denied
the story of Defendant about their dispossession on 08.01.1998.
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11/12) In Paragraph No. 111, he denied suggestion about there
being no transaction of buying and selling of shares by Dhoot
investments and Dhoot Capital with the Defendant and his family
members.
11/13) In Paragraph No. 113, he remained firm on his statement
about threats received by him from 06.01.1998 by Defendant and his
hirelings.
12. Now let us consider the arguments advanced on behalf of the
Appellant.
12/1) So far as the argument of the Appellant that the Plaintiff
has pleaded totally new version by way of amendment where for the
first time, dispossession on 20.02.1997 and repossession on
10.12.1997 is concerned, it is settled position of law that at the time
of final hearing of the suit, the plaint as it stands (duly amended) has
to be considered. A case put forth by the party and the pleadings
added by way of amendment, cannot be held against the party. The
Plaintiff has not pleaded case contrary to one another. The
unamended plaint proceeded on the footing of attempt of
obstruction/dispossession by the Defendant, as on the date of filing of
the suit, however, the amended plaint pleaded case about events in
the past. Therefore, the said argument has no merit.
12/2) It is argued that the Plaintiff has not examined witnesses
from any of the neighbours about possession on the date of the suit.
It has come on record that during night between 08.01.1998 and
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09.01.1998, the police had come to suit flat and statements of the
neighbours were recorded and panchnama was drawn.
12/3) The statements made by the witnesses during oral
evidence, by the Plaintiff and wife of Defendant, are nothing but
word against word. Therefore, this Court, being First Appellate Court
will be required to consider the documentary evidence produced
before the Court to ascertain the aspect of possession on the date of
suit.
12/4) It is argued on behalf of the Appellant, that Plaintiff has
not proved that there were transaction of sale/purchase of shares
between the Plaintiff and Defendant. In this respect, the
documentary evidence in the form of ledger accounts (Statement of
Accounts) produced at Exh.-BBBB will have to be considered. In this
Respect, it is material to note that the Plaintiff has produced
statement of Accounts, which are kept during the course of business,
having presumption under Section 34 of the Indian Evidence Act,
1872.
12/5) It is further argued on behalf of the Appellant that
because the Plaintiff has not challenged the proceeding filed by the
Defendant under Section 145 of Cr.PC., it shows that the Defendant
was in possession on the date of filing of complaint i.e. 13.01.1997.
This argument has no merit, in as much as, the complaint under
Section 145 is based on likelihood of breach of peace arising out of
dispute concerning land or water. In any case, such complaint being
filed, only indicates that the Defendant perceived some dispute which
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is likely to give rise to breach of peace. That complaint, per se,
cannot be considered as conclusive proof of Defendant's possession
on a particular date. It is seen from Exh.7 that an order was passed
by the 44th MM Court dated 16.01.1997 in the proceedings under
Section 145 of Cr.PC. Perusal of the said order shows that it is based
on the 'assertion of possession' by wife of Defendant which 'she
claimed to have come in possession of suit flat' and it is recorded by
the Magistrate that he was satisfied that there exists dispute between
the parties, which would lead to breach of peace. This order, per se,
does not give any finding about possession. In any case, the aspect of
possession for the purpose of perpetual injunction is within the
exclusive domain of the Civil Court and the order under Section 145
of Cr.PC. cannot be held as conclusive proof of possession.
12/6) The next argument of the Appellant is that in the
proceedings under Section 156(3) of Cr.PC. filed by the Plaintiff
against the Defendant, the cause title of the complaint shows that the
Plaintiff has no place of residence. Record shows that the complaint
filed by the Plaintiff is dated 22.04.1997, which is admittedly after
20.02.1997 when according to the Plaintiff, he was dispossessed by
the Defendant and he had suffered almost a month of custody and
was released on bail thereafter. The said complaint is filed after he
was released on bail. In that view of the matter, non-mention of
address is in line with his case. Non-mention of residence can hardly
be called as a proof of possession or dispossession.
12/7) Next argument of Appellant is based on Part Performance
under Section 53A of the Transfer of Property Act, 1882. It cannot be
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considered for protection of possession or otherwise, because
admittedly the Appellant/Defendant has not filed any counter-claim
seeking specific performance of alleged contract. There are no
averments of readiness and willingness as are required for such
consideration. If a suit is filed for recovery of possession from a party
which is put in possession of a property as part performance of an
agreement to sale, then it calls for consideration, only then, the
aspect regarding readiness and willingness under reciprocal promises,
is taken up for consideration. From the issues framed, which is the
mirror of case understood by parties, it is seen that no such issue
about part performance or readiness and willingness was framed or
considered by the Trial Court. Therefore, the said argument has no
merit.
12/8) The next argument is that the Plaintiff withdrew the
High Court suit under Section 6 of the Specific Relief Act only in
October 2001 when according to him, he was put back in possession
in December 1997. In this respect, it is material to note that the
Plaintiff had instructed his Advocate in High Court on 07.01.1998
itself to withdraw the High Court suit. The Plaintiff's case is that
since he had received possession from Defendant on 10.12.1997, he
had instructed his Advocate to withdraw the suit. It means that
decision to withdraw the suit was taken before filing of the present
suit on 08.01.1998, when the threat of obstruction/dispossession was
perceived by the Plaintiff. In that view of the matter, the actual
withdrawal of High Court suit, even if taken place in October 2001,
will not have any material bearing on the issue at hand. Plaintiff's
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letter Exh. TTT dated 07.01.1998, (which is acknowledged by the
Advocate on 07.01.1998) prior to filing of present suit, is on record.
12/9) The argument about desperation of Plaintiff, is based on
his admission in Cross-examination that the Plaintiff's wife had also
filed the suit for possession of suit flat against the Defendant. This
argument also has no merit, as the fact of Plaintiff's wife filing the
suit and its withdrawal, in itself has no bearing on the suit and does
not establish anything.
12/10) The next argument is that, the Plaintiff had filed
Chamber Summons and affidavit in support of the same was affirmed
on 05.01.1998 and advocate's notice was addressed to the Defendant
mentioning that the matter will be moved before the High Court on
09.01.1998, indicates that Defendant was not in possession on date
of suit. The explanation given by the Plaintiff in this respect is that
though he had received possession in December, 1997, the suit flat
was not in a condition to occupy immediately and it was difficult to
trust the Defendant about the compromise and therefore, instructions
were given to the Advocate to make the Society party, and for that
purpose, the Chamber Summons was filed and affidavit was affirmed.
Considering that the parties had suffered series of criminal
complaints against each other during period from February 1997 till
December 1997 and there was palpable environment of distrust
among them, it is most probable that the Plaintiff instructed his
lawyer to make Society party, to err on safer side, even if he was put
in possession pursuant to the compromise of December, 1997.
FA-715-2004 J-C3.doc
12/11) So far as the telegram sent to the Defendant is
concerned, perusal of the said telegram Exh. 12 (Y-2) does not show
date of sending or name of sender. Assuming that it was sent on
behalf of the Plaintiff, it was about High Court suit, which was
instructed to be withdrawn as per Plaintiff's letter Exh. TTT dated
07.01.1998, which is acknowledged by the Advocate on 07.01.1998,
prior to filing of present suit.
12/12) So far as the argument about Defendant and his wife
being not in India on the date of alleged threatening, is concerned, it
is material to note that DW-1 Sarabjit Dhillon has stated in her
examination-in-chief that they left Mumbai on 23.12.1997, left Delhi
on 29.12.1997 for Hong Kong and reached home on 07.01.1998 at
8.30 p.m. Therefore, it is clear that on the date of filing of suit
(08.01.1998) the Defendant and his wife were very much in Mumbai.
In the teeth of these admissions, by Defendant's wife, there is no
merit in argument that the Defendant and his wife were not in India
at the relevant time.
12/13) The argument that the Trial Court has overlooked
evidence proving sale of flat by the Plaintiff to Defendant, especially
under letter Exh.5, has no merit, in as much as the said letter is not a
registered document of sale, which is requirement under the law for
sale of immovable property. The letter Exh- 5 dated 06.01.1996 can
hardly be called a document of sale, transferring title. The burden of
proving the case of the Defendant that he was put in possession
under letter dated 06.01.1996 is squarely upon the Defendant and
the said burden has not been discharged.
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13. Since the parties have made contrary statements in the form of
word against word about possession as on the date of filing of the
suit, the documentary evidence assumes importance and the
panchnama drawn on the date of filing of the suit between midnight
of 08.01.1998 and morning of 09.01.1998 is really important, copy of
which is at Exh. JJJ. On the said day, a panchnama was drawn, which
indicates that panchas had visited in the midnight between
08.01.1998 and 09.01.1998 at 2.40 a.m. when the said flat was
found closed and when police officer rang the door bell, the flat was
opened by the Plaintiff - Naresh Dhoot and his wife who were inside
the suit flat.
14. The argument of the Defendant that in the said Panchnama
certain notebooks / registers were found showing names of Aditya
Singh and Abhitabh and therefore it shows that Defendant was in
possession earlier, has no merit, because names on the notebooks
were S. S. Chaudhary, Aditya Singh, Abhitabh, M. S. Punia, Bhushan
Varke, Deep Sahit, Prem Anand. None of the these persons have been
examined. Names on the notebooks that too without any surname,
does not prove anything as contended by the Defendant.
15. The submission of the Defendant that at the door of the suit
flat, there existed mark of removal of 'kadi', per se, does not prove
that the 'Plaintiff' forcibly entered the suit flat. The marks do not
prove that Plaintiff did it.
16. In respect of utensils found in the suit flat at the time of
panchnama, as well as names on notebook/register, the Plaintiff has
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withstood the Cross-examination by answering that the letters on the
utensils 'MSD' refers to Manish Shanti Dhoot and names on the
notebook/register, referred are of his Son's friends. From the Cross-
examination of the Plaintiff, it seems that the Defendant tried to
suggest that 'MSD' stands for M. S. Dhillon while according to the
Plaintiff 'MSD' stands for Manish Shanti Dhoot. These petty
suggestions and efforts about the names on the utensils and names
appearing on the notebook/register found in the suit flat, can hardly
be called a substantive piece of evidence in a suit for permanent
injunction.
17. It will not be out of place to mention that these parties have
been quarreling with each other and fighting litigation including
criminal complaints, tooth and nail and there is no wonder that such
insignificant and petty suggestions were made in the Cross-
examination. However, the Court cannot get carried away by the
same.
18. The statement of Zarina Hassan Sheikh recorded by the police
indicates that she stated that on 06.01.1998, the Plaintiff's wife Mrs.
Rajani Dhoot came to her and asked her to accompany to the suit flat
and at that time, Plaintiff - Naresh Dhoot was also present, who used
'the key available with him' to open the door of the suit flat. This
statement directly supports the case of the Plaintiff that after he
received keys of the suit flat under settlement dated 10.12.1997
thereafter, he started residing in the suit flat with his family from
06.01.1998. Same statement is also recorded by another neighbour-
Shweta Shekhar Sen who has stated that in her presence, Plaintiff
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and his wife entered the suit flat on 06.01.1998 at 6:30 p.m. by
opening the door of the suit flat 'with key available with them.'
19. So far as the statements of both Plaintiff and Son of Defendant-
Aditya Dhillon recorded by the police, are concerned, the same being
interested witnesses, their statements are of no use.
20. Let us now consider the case of the Defendant, on the
touchstone of preponderance of probabilities.
20/1) The story of the Defendant starts with letter dated
06.01.1996, which is the basis of his case that he was put in
possession of the suit flat, because he had paid full consideration
thereof amounting to Rs.14,15,000/-. Admittedly, the suit flat was
purchased on 04.11.1991 by the Plaintiff under a registered
document in the name of himself and his wife by raising housing loan
of Rs.1,25,000/- from LIC, by mortgaging the suit flat. There is no
much dispute about the fact that the suit flat was purchased by the
Plaintiff for Rs.3,78,000/-. If that be so, there is nothing on record to
show that in a span of about 4 years and 2 months, in January 1996,
the price of the flat had multiplied to Rs.14,15,000/- and it was the
market price. The Plaintiff has produced ledger accounts (statement
of accounts) maintained by his investment company showing entries
in the name of the Defendant about the sale/purchase of shares. DW-
1 has admitted in her Cross-examination that she came to know
about the suit flat available for sale through one broker called Mr.
Nagpal. She has admitted that said broker was the middleman who
knew the terms and Conditions of the deal. She has also admitted
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that she has made payments to the Plaintiff's company after
04.01.1996. She has also admitted that the entries of earlier dates
and other entries from March, 1996 to November, 1997 of various
amounts received by her, which are admitted to be dividends received
from those companies. These admissions are sufficient to indicate the
fact that the Defendant and his wife were investing in the shares and
were receiving dividends. Admittedly, Mr. Nagpal is not examined in
support of the case of the purchase of the suit flat.
20/2) In the ordinary course of business and going by the
natural human conduct, any person of ordinary prudence who invests
over Rs.14,15,000/- in January 1996, will not remain silent about
getting the sale deed executed. Admittedly, the Defendant never filed
any suit for specific performance seeking sale deed from the Plaintiff.
The Defendant all along had a dispute with Plaintiff, only over
possession and nothing else. This is coupled with the fact that
admittedly the Plaintiff was facing criminal complaints from other
investors. In such circumstances, it is highly improbable that
Defendant will keep the dispute just about possession and will not
make any effort to get sale deed executed.
21. Now turning to the documentary evidence on record. Exh.-X3
on record shows that on 24.02.1997, members of the concerned
Society filed a complaint before the Senior Police Inspector of the
Police station complaining that on the 20.02.1997, the Defendant had
forcibly and illegally occupied the suit flat which legally belongs to
the Plaintiff. It is stated in the complaint that the Defendant claims to
have purchased the suit flat from Plaintiff, but he is unable to
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produce the documentary proof for the same. The complaint goes on
to record that the society has not received any intimation regarding
sale of suit flat from the owner i.e. Plaintiff. The complaint further
records that the society is aware of the dispute between the Plaintiff
and Defendant and an apprehension is expressed that Plaintiff's
belongings may be removed or have been removed by the Defendant,
which amounts to theft. A collective request is made to investigate
the matter and take necessary action.
22. Exh.ZZ is the complaint filed by the Plaintiff dated 29.03.1997
to the Inspector of Police station recording that the Plaintiff's father
and his wife had company by name Dhoot Capital, which was dealing
with buying and selling of shares on behalf of various parties and due
to financial crisis in the stock market, the company suffered losses
and as such could not clear the dues of the creditors, who had started
creating disturbance and threatening to the Plaintiff and his family
warning of dire consequences. The complaint further records that due
to such threats, the Plaintiff and his family had left to their native
place at Jodhpur in the month of December, 1996 after locking the
suit flat with all their belongings inside. The complaint further
recorded that in order to settle the dispute, Plaintiff alongwith his
wife and mother came to Mumbai on 20.02.1997 and on arriving at
the suit flat, they were confronted by wife of Defendant and her
hirelings insisting that before entering the flat they must accompany
the Defendant's wife to the police station. The complaint further
records that after reaching the police station, Plaintiff was arrested in
connection with complaint filed by third person Mrs. D'cruz. It further
records that the Plaintiff has never given possession of the suit flat to
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Defendant. It further records that the suit flat is mortgaged with LIC
Housing Finance from which loan is taken. It further records that
after Plaintiff was released on bail on 21.03.1997, when Plaintiff
went to suit flat, he was surprised to see the name plate on the suit
flat changed and also to find that the lock on the main door of the
suit flat was also changed. The complaint goes on to record that, at
the time of release on bail, the Plaintiff was directed to settle all the
disputes with creditors. That after release on bail, it had come to the
knowledge of the Plaintiff that Defendant's wife alongwith her
associates, have committed act of housebreaking and disposed of
certain household and office articles. Names of Defendant's wife and
nine other persons are stated in the complaint. List of articles in the
flat is also mentioned. The complaint records that therefore he was
dispossessed on 20.02.1997, which fact is verified by Plaintiff on
21.03.1997 after release on bail. The complaint recorded that certain
articles in the house have been stolen. A request is made to take
action against Defendant's wife for taking law in her hand and for
offence of house breaking and theft.
23. It is the case of the Plaintiff that since no cognizance was
taken, he had filed proceeding under section 156(3) of the Cr.PC.
However, despite of order therein, cognizance was not taken and the
Petitioner was required to approach the Commissioner of Police, on
whose intervention ultimately, the FIR has been filed.
24. It is very important to note that though the members of the
society took a stand and filed a complaint with the police after
20.02.1997 incidence, no such complaint or action is taken by the
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society after 08.01.1998, when according to the Defendant, Plaintiff
allegedly dispossessed the Defendant.
25. The copy of complaint filed by DW-1 dated 20.02.1997 is
produced at Exh.20. It indicates that in the said complaint, address of
DW-1 is shown as Hina Apartment and it is filed against wife and
mother of the Plaintiff. In the said complaint, DW-1 has stated that
the suit flat is owned by the Plaintiff Dhoot and stands in his name. If
the flat was sold in January 1996 itself, there was no reason for the
DW-1 to state in the complaint of February 1997 that the flat is
owned by the Plaintiff Dhoot and stands in his name.
26. The Defendant's case about the instance of 20.02.1997 is as
under:
"9) On 20th February, 1997, at about 6:00 p.m. wife of Plaintiff
and mother of Plaintiff came to suit flat and they started breaking
lock of the flat.Some boys were playing in nearby Hina apartment,
they rushed to me and informed that Plaintiff's wife and Plaintiff's
mother trying to break the lock of the suit flat. I came to the suit
and. I requested them not break the lock. I requested them if you
have some problem, you may call police. Plaintiff's wife started
abusing me. I told my son Aditya to call police. When the police
came to spot Plaintiff's wife run away from the spot. I showed the
papers of 145 Cr.PC. case to the police. Police took me and
Plaintiff's mother to the DN Nagar police station. Police directed me
to lodge N.C. with them. Police gave warning to Plaintiff's mother,
there after I went to my house.
10) Mrs. D'cruz is one of the lady to whom Naresh Dhoot
cheated on the same day that is 20 th February, 1997 people told me
that Naresh Dhoot is at D.N. Nagar police station. I went to D.N.
Nagar police station. I came to know that Plaintiff was arrested by
D.N. Nagar police station on the complaint of Mrs. D'cruz. I did not
meet Plaintiff on 20 th February, 1997. I met the Plaintiff on 21 st
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February, 1997 in 44th Court Andheri. Plaintiff released on bail on
17th March, 1997. On 17 th March, 1997 I was present in the
Magistrate's Court. On that day 20 peoples were present in the
Magistrate's court and some of relative of Plaintiff were present.
Again says the 20 people's to whom the Plaintiff has cheated were
present in the court. I can recollect some of the names. 1)
Mrs.Dholakia, 2) Mr P.R. Diwan, 3) Mr and Mrs Kimatkar, 4) Mr and
Mrs Narayan Patel, 5) Mr and Mrs Sandrawala, 6) Mrs Patankar, 7)
Mr. Kumar. One of the lady was from Goa. I do not know her name.
One lady from Rajasthan. I do not know her name. One of the
relative of the Plaintiff i.e. his maternal uncle, the Plaintiff's wife
brother his sisters husband were present, the Plaintiff was arrested
in the case file by Mrs. D'cruz U/s 138 of Negotiable Instrument Act.
11) On 17th March, 1997 I had talk with the Plaintiff in respect of
settlement of my case U/s 145 Cr.PC. on the very day Plaintiff said
me he is ready to settle the matter with me, on the very day Plaintiff
and his relative said me, that Plaintiff gives me a power of attorney
until the agreement of suit flat is executed.
12) Naresh Dhoot told me to prepare the power of attorney.
Accordingly I instructed my advocate to prepare the power of
attorney. My advocate Mr. Ghag prepared the power of attorney.
For the power of attorney I purchased stamp paper. In view of the
power of attorney I was authorised to use the suit flat, to sale, to
pay outgoings of the suit flat. On 7 th April, 1997 the plantiff signed
the power of attorney in the premises of 44 th Court, Andheri. On 7 th
April, 1997 several people including the Plaintiff's relative were
present in the court. I showed power of attorney to Plaintiff. He had
gone through the power of attorney. He agreed with the contents of
the power of attorney. On the same time he agreed to pay Rs. One
Lakh to Mrs. D'cruz. The said power of attorney was notarized by
the Plaintiff. I also signed on the power of attorney. Mr. Suresh
Birla (Plaintiff's brother in law) signed the power of attorney. The
Plaintiff told me that I should give him the power of attorney for
getting it notarized. On the same day evening Plaintiff came with
the notarized power of attorney to Hina Apartment. He gave power
of attorney to me. At that time Mrs. D'cruz was present in Hina
Apartment in my flat. The plantiff gave Rs. 1 Lakh to Mrs. D'Cruz.
The Plantiff obtained a receipt in token of an acknowledgement of
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having received Rs. 1 Lakh by Mrs. D'cruz to which I have signed
on the receipt as witness. I am Shown Exh.-2. This is a same power
of attorney executed by Plaintiff in my favour."
27. It is therefore clear from the Defendant's own case that the
Plaintiff was facing creditors or persons who had complained against
the Plaintiff and they were present in the Court on 17.03.1997 and
the Plaintiff was already arrested in the case filed by Mrs. D'cruz u/s.
138 of the NI Act and Defendant's wife had gone to the Court. When
she spoke with the Plaintiff about settlement of the case, the Plaintiff
said that he is ready to settle the matter and that he will give PoA in
her favour until agreement of the said flat is executed. Defendant's
wife has herself stated that the Plaintiff gave PoA to Defendant's wife
and at that time Plaintiff gave Rs.1,00,000/- to Mrs D'cruz and
obtained a receipt. The Defendant's wife has herself stated that she
has signed the said receipt as witness. Therefore, it appears from the
Defendant's own case that the Plaintiff was facing trouble as well as
criminal cases from the creditors, including Mrs. D'cruz on whose
complaint, he was arrested. It appears that the Plaintiff was in
desperate situation and when talks of settlement started, Plaintiff
agreed to execute PoA in respect of the suit flat and paid
Rs.1,00,000/- to Mrs. D'cruz on receipt of which Defendant's wife
signed as a witness.
28. Exh.-2A is the copy of PoA executed by the Plaintiff. The stamp
paper seems to have been purchased on 17.03.1997, however, its
execution is of 07.04.1997. It is clear from these dates that the stamp
paper is purchased, when the Plaintiff was in custody as he was
arrested on 20.02.1997 itself. However, the date of its execution is
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after he was released on bail on 21.03.1997. The said copy also
indicates that it is not signed by the Plaintiff's wife. The said PoA is
apparently issued in favour of the Defendant's wife and one Mr.
Suresh Birla, who is Plaintiff's Brother-in-Law. It is material to note
that DW-1 has admitted in her Cross-examination that on
17.03.1997, she had visited the Court without her Court case being
listed on that date.
29. It is a Plaintiff's case that since the Plaintiff was to be released
on bail, Defendant's wife purchased the stamp paper on 17.03.1997
and got PoA typed and accordingly, the PoA was signed on
07.04.1997 but identified and notarised on 27.04.1997. It is material
to note that on 07.04.1997, there was date in the Criminal Court
about Section 145 Cr.PC proceedings filed by Defendant's Wife.
Considering the said document and dates mentioned above, it is clear
that on 07.04.1997, the Plaintiff had not appeared before the Notary,
and it is the Defendant who had got it notarized later on and
therefore the purpose stated in the PoA appears to be doubtful. This is
coupled with fact that the other owner of the suit flat being Plaintiff's
wife has not signed the PoA.
30. It is material to note that Exh.-RRR on the record is a copy of
an Advocate's notice sent on behalf of the Plaintiff to wife of the
Defendant revoking the PoA. This notice reiterated the case of the
Plaintiff that Defendant has taken illegal possession of the suit flat
and has committed theft of Plaintiff's belongings and by use of
influence, threat and coercion, Plaintiff was made to sign the PoA on
07.04.1997. The original PoA was demanded back, further reiterating
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that the PoA is not signed by the Plaintiff's wife. The PoA is notarized
apparently on 27.04.1997 by the wife of Defendant when according
to the certificate of notary, he had not identified the Plaintiff. It is the
case of the Plaintiff that after he came to know about the use of PoA
by the Defendant/his family members, in an attempt to sell the suit
flat, he contacted the notary Mr. A. N. Pandey, later in point in time,
who issued a certificate dated 01.06.1998, of which copy is produced
at Exh.-X1, in which the said Notary has certified that it is only
Defendant's wife, who has signed the document in presence of Notary
and said Notary has not identified Plaintiff, who is claimed to have
executed the PoA.
31. All these factual aspects clearly lend credence to the Plaintiff's
case that the PoA was executed under threat and coercion.
32. Perusal of Exh-WW shows that New India Bank had written to
the Defendant's wife on 17.09.1997 about return of articles of
Plaintiff. In this letter, bank has stated that it is not getting favourable
response from the Defendant's wife in returning hypothecated articles
of Plaintiff for which Plaintiff had taken loan. Letter makes a
reference to the Bank's understanding that Defendant's wife has
taken forcible possession of the suit flat for recovery of dues arising
out of business dealing with Plaintiff. The said letter also records that
bank had verified these facts from Senior Inspector of Police station
while lodging complaint. The bank ultimately requested Defendant's
wife to hand over the possession of the Plaintiff's hypothecated
articles. This documents also lends credence to the Plaintiff's case
that indeed there was Plaintiff's dispossession from the suit flat and
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there existed dispute about business dealings between the parties.
33. After perusing Chief and Cross-examination of DW-1, the
overall admitted position emerging is that, there existed business
transaction between the parties and Defendant had received
dividends over the investments made through the Plaintiff's
companies.
34. Now let us come to the case of the Plaintiff that on 10.12.1997,
the Defendant gave possession of the suit flat back to the Plaintiff,
pursuant to a settlement arrived between the parties.
35. Exh-KKK on record is the copy of affidavit executed by DW-1
on 10.12.1997. She has stated in this affidavit that she had promised
in the 44th MM Court on 10.09.1997 that she will handover keys and
possession of the suit flat to the Plaintiff and his wife. She has
declared in the said affidavit that herself and her family members
have no claim and/or no right, title and interest in the suit flat and
the account has been settled by mutual consent. It is stated that as
per undertaking given in the Court on affidavit dated 10.09.1997, she
has handed over the articles lying in the suit flat to the Police Station
on 23.09.1997.
36. Exh.-QQQ is a copy of letter issued by Advocate Memani to the
Plaintiff which shows that on same day i.e. 10.12.1997, the said
Advocate returned the case papers of the High Court's suit to the
Plaintiff and issued refund of Rs.10,000/- which was paid by the
Plaintiff.
37. Exh.-EE (colly) are copies of telephone bills standing in the
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name of Plaintiff's wife having address as suit flat. The bill issued for
a period from 01.12.1997 to 15.12.1997, during which according to
the Plaintiff, the possession of suit flat was handed over on
10.12.1997, is produced on record. This bill indicates only one call
being metered during the period of 15 days, which corroborates and
confirms the case of the Plaintiff, that on receiving possession of suit
flat from Defendant on 10.12.1997, he had called his wife from suit
flat informing about the receipt of possession.
38. The Plaintiff has also produced on record, a copy of affidavits
by Mr. A. G. Shaikh and Mr. Nandlal Dave at Exh-ZZZ (colly). Mr. A.
G. Shaikh is an identifier of affidavit dated 10.12.1997. He has stated
in the affidavit that Defendant's wife has signed the affidavit dated
10.12.1997 in his presence alongwith settlement papers with Plaintiff
and his wife and company and agreed to make payment to various
parties as full and final settlement on their behalf. This person has
identified the deponent (DW-1) who had explained and interpreted
the affidavit to DW-1. The affidavit dated 10.12.1997 is executed
before the Notary - Mr. Nandlal Dave, who had executed an affidavit
in support of Plaintiff. He has stated that Defendant's wife (DW-1)
has signed in his presence on affidavit dated 10.12.1997.
39. The Defendant's wife in her examination-in-chief has simply
denied having known the said Advocate A.G. Shaikh and said Notary
N.N. Dave.
40. Let us now consider admissions of DW1- Sarabjit Dhillon. She
has admitted in her Cross-examination that until November 1996, she
did not make payment of electricity bill and did not intimate the Ad-
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hoc committee of building about purchase of flat. She has admitted
that from January 1996 to October 1996, the suit flat was completely
closed and unoccupied. She has denied receipt of telephone bills at
Exh.- EE & FF of the suit flat. In her cross-examination, DW-1 has
volunteered in Paragraph No.22 of her examination-in-chief that
there was no telephone connection in the suit flat. She has shown
inability to confirm the telephone numbers of the Plaintiff and she
has stated that she did not obtain telephone connection in the suit
flat till December 1996. However, she has also admitted in her Cross-
examination that till January, 1998 there was no telephone in her
name and also that she did not apply for getting the electricity meter
transferred in her name.
41. So far as the incidence of 08.01.1998 is concerned, the Plaintiff
has produced on record a copy of the letter written by the Plaintiff's
wife to Rationing Officer dated 08.01.1998 at Exh-SSS. In the said
letter, the Plaintiffs' wife has clearly stated that Aditya Dhillon (son of
the Defendant) approached the Rationing Officer - Mrs Mane to
make bogus ration-card by mentioning the suit flat as his residential
address. In that respect, a copy of Plaintiff's ration card was enclosed
as required by Mrs. Mane. The Rationing Inspector visited the suit flat
on 08.01.1998 at 11.00 a.m. and found that wife of the Plaintiff was
in possession of the suit flat. The said letter was duly acknowledged
by the Rationing Officer with seal. The Plaintiff has also produced at
Exh-VVV a copy of letter issued by the Rationing Officer on
17.01.1998 to the Senior Police Inspector of the Police station during
investigation in connection with Aditya Dhillon's complaint. This
letter indicates that Rationing Officer had shown willingness to
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provide the information in the Court. This lends credence to case of
inspection of Rationing Inspector as well as the letter written by
Plaintiff's wife on 08.01.1998. From the documents on record, it
clearly appears that the Rationing Officer had visited the suit flat on
08.01.1998 who found the Plaintiff's wife in the suit flat, which
prompted Plaintiff's wife to issue letter on the same day by giving
details of Rationing Officer's name who had visited for inspection.
42. DW-1 has stated in Paragraph No.23 of her examination-in-
chief that on 06.01.1998 she was in possession of the suit flat. She
also submitted in the examination-in-chief that she was out of India
and had gone to Hong Kong and she returned to Mumbai on
07.01.1998 at about 7 p.m. However, in Cross-examination, she
stated that from February 1997 till 08.01.1998 her son Aditya was
residing in the suit flat. There is no clarity in the statement of DW-1
about relevant period as to who was present at suit flat. It is also not
clear as to who was in possession, as to whether Defendant, his wife
or their son was present. About the residence of their son Aditya, DW-
1 admitted in Paragraph No.50 that her son got married in December,
2000 and till then he was joint with the mother. She has stated that
in 1997-98 Aditya's passport disclosed address of Hina Apartment
(not of suit flat). She has further disclosed that in December 1997,
Aditya made application for having separate ration card and no other
family members of Defendant had applied to the Rationing Officer for
ration card from January 1996 to December, 1997 with the suit flat
as address. She has further admitted that in December, 1997 Aditya's
name was shown in her ration card and was not removed till then.
She has also admitted that Aditya had not made any application to
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Society for transfer of suit flat on his name and the suit flat was to
transfer in her name, however, she did not make any application to
the society for transfer of suit flat. She has further admitted that from
January 1996 to 1997, no one was residing in suit flat. All these
admissions indicate that there is no clarity about who was supposed
to purchase the flat, who was supposed to occupy the flat, who was
supposed to transfer flat and who was supposed to apply for ration
card.
43. The only conclusion that can be drawn with the said
admissions is that the application to society and application for
transfer of ration card was made with a motive to create evidence.
Sale of suit flat was never intention of the parties.
44. Now let's consider how the Trial Court has appreciated the
evidence on record.
45. In Paragraph No.36, the Trial Court has rightly considered that
the Defendant has not given details of the agreement that was agreed
to be executed. The Defendant has also not clarified as to what rate
of interest on amount of sale price was agreed between the parties till
the regular agreement is executed.
46. The Trial Court in Paragraph No.42 of the impugned Judgment
has rightly considered that as DW-1 made the statement that she is
ready to hand over the materials or belongings to the Plaintiff, it
means that Plaintiff's materials was lying in the suit flat. The Trial
Court has further rightly considered that if vacant possession of the
said flat was given by the Plaintiff to the Defendant as per
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Defendant's case pursuant to letter dated 06.01.1996, then the
Plaintiffs belongings should not have been lying in the suit flat.
47. In Paragraph No.44, the Trial Court has rightly considered that
since DW-1 was admittedly aware of the procedure for getting flat
transferred, Defendant was required to search for title as well as
necessary verification when she agreed to purchase the suit flat. DW-
1 has not made any efforts to ascertain whether the Plaintiff has clear
and marketable title. Admittedly, the suit flat was jointly purchased
by the Plaintiff and his wife, despite the same, claim is made on the
strength of the letter dated 06.01.1996 which is apparently signed by
only Plaintiff.
48. Trial Court in Paragraph Nos.50 & 51, has further rightly
considered that the letter dated 06.01.1996 (which is foundational
document for Defendant to assert his case for purchase of suit flat
and possession thereof) was not produced by the Defendant or his
wife when the proceedings under Section 145 of Cr.PC was initiated
in January 1997. The Trial Court has also on appreciation of the
evidence held correctly that there is nothing to show that Defendant
or DW-1 was in possession of the suit flat from January 1996 till
February 1997. The Plaintiff has denied his signature on both the
documents dated 06.01.1996 and 30.12.1996 (Exh-5 & 6). Both
these documents are typed documents and the document dated
30.12.1996 is not even on the letterhead. Assuming for the sake of
argument that this letter dated 30.12.1996 was indeed signed and
sent by the Plaintiff, the said letter itself mentioned that there is
unresolved matter about the suit flat and therefore, it does not
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support the case of the Defendant that flat was sold. Mere mention
that Defendant should not worry because keys are with the
Defendant, in the letter, in my view, cannot be taken as conclusive
piece of evidence in support of the Defendant's case of purchase of
suit flat and being put in possession thereof.
49. Trial Court in Paragraph No.52, has further rightly considered
the correspondence produced by the Plaintiff received by him at Exh.
Nos. AA (Letter dated 12.06.1996 & 09.05.1996), BB (Letter dated
11.05.1996 from New India Bank), CC (Letter dated 05.06.1996 from
Bank of India), DD (Letter dated 29.10.1996 from New India Bank),
P (LIC Policy), Q (Letter dated 13.06.1996 received from Mrs.
D'cruz), R (Letter addressed from LIC dated 13.03.1996) & S (colly.)
(Letter dated 14.05.1996) in order to support that the Plaintiff was in
possession of suit flat even after 06.01.1996. The case of the
Defendant that Plaintiff used to visit and use the suit flat for meeting
his clients even after sale of the suit flat, is highly improbable and
therefore this documentary evidence of receipt of correspondence
from LIC, letters received from New India Bank, and other letters
received, assumes importance.
50. The Plaintiff has also produced telephone bills at Exh.EE & FF
for the period from 01.06.1996 to 01.12.1997. The Defendant has
taken a stand that there was no telephone installation in the suit flat.
It is not even the case of the Defendant that those telephone bills are
of telephone installed at some other place. When the genuineness of
the bills are not in dispute, which are issued in ordinary course of
business received by the Plaintiff, assumes importance, clearly
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suggesting the possession of the Plaintiff during relevant period. The
telephone bills pertaining to later period from January 1997 till
January 1998 indicates very little use of telephone, which once again
supports the case of the Plaintiff that on 20.02.1997 he was
dispossessed by the Defendant and thereafter, suit flat was kept
closed. On 10.12.1997, when possession was handed back to the
Plaintiff, at that time, one telephone call to Plaintiff's wife is recorded
in the bill. This evidence is rightly considered by the Trial Court in
Paragraph No.53.
51. The Plaintiff has produced letter received from the registered
post at Exh. Nos. JJ (colly.) (Registered packet alongwith covering
letter dated 31.07.1996), KK (Letter dated 18.07.1996 from
Mangalam Cements) & LL ( Xerox copy of share certificate dated
31.08.1996 from BSR Computers). In Paragraph No.54 of the
Judgment, the Trial Court has rightly held that ordinarily postal
authorities do not deliver registered letters to any person other than
addressee as acknowledgment is to be obtained. Therefore, there is
presumption that if the letters are produced by the Plaintiff then they
were received by him on the suit flat. DW-1 failed to produce
contrary evidence in respect of such receipt of registered letters. It is
not her case that she was authorized to receive the registered letters
on behalf of the Plaintiff. It is also not her case that Defendant
obtained those letters from post office. These registered letters are
considered by the Trial Court in proper perspective.
52. It is important to note that according to the Plaintiff, he himself
went to Police station at night of 20.02.1997 after being informed by
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the wife about the incidence. If the Plaintiff had any apprehension of
arrest or fear of any illegal act, he would not have himself visited the
police station. It is material to note that the police did not make any
panchnama on receiving the complaint from DW-1 on 20.02.1997.
The sequence of events indicates that after the incidence of
20.02.1997, when the Plaintiff went to police station, he was arrested
in connection with complaint filed by Mrs. D'cruz and it gave
opportunity to the Defendant to take forcible possession of the suit
flat with the help of other accomplices. That is how the Plaintiff's
articles (which were hypothecated with the bank) were lying in the
suit flat, for which later on, Defendant received notices from the
concerned bank and she agreed to hand over the articles. This aspect
is rightly considered by the Trial Court in Paragraph Nos.58 & 60 of
the impugned Judgment.
53. The Defendant has not shown any effort made with the society
management for transfer of flat until December 1996 when the
Defendant's son made the application. If the suit flat was purchased
in January 1996, there would have been some attempts for change of
record, which is conspicuously absent.
54. The Plaintiff has brought on record the complaint filed by him
with the 44th MM Court for investigation into theft of articles
belonging to him from the suit flat by DW-1. After investigation, the
police found prima facie case and as such arrest of DW-1 was
eminent. The order of the Sessions Court shows that DW-1 was
directed to return the articles. When it was not possible for her to
return remaining articles, particularly articles which were
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hypothecated with the bank, DW-1 had to come to a settlement. This
aspect is rightly considered by the Trial Court in Paragraph No.62 of
the impugned judgment.
55. About the incidence of 08.01.1998, the averments of the
Defendant, in pleading and evidence have been inconsistent. In the
Written Statement, the Defendant has pleaded that armed with an
order of ad-interim injunction granted in the present suit, the
Plaintiff, his wife and three / four ladies came to the premises and
took forcible possession from Defendant's son Aditya at night at
about 10 p.m. It is important to note that according to pleading,
forcible possession was taken from Defendant's son Aditya. Aditya
however has not been examined. In examination-in-chief, DW-1
Sarabjit stated that at about 10.30 p.m. she and her husband had
gone for walk when their son Aditya came running and informed that
Plaintiff's wife and two / three others are abusing Aditya. When
Defendant and his wife went to the suit flat at that time Plaintiff's
wife and two / three ladies broke open the lock and they were sitting
in the suit flat. In the Cross-examination, she has stated that on
08.01.1998 herself and her husband visited the suit flat and on the
very day she called her son Aditya in the afternoon and thereafter she
and her husband did not go to the suit flat. She has admitted that
Aditya was not forced out of the suit flat. She has also stated that at
10.30 pm., Aditya locked the suit premises. She has stated in the
Cross-examination that at 11.30 p.m. she and her husband reached
the suit flat and found that the lock of the suit flat was broken. DW-1
has avoided to state anything about where they were taking walk.
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56. Different times are stated about reaching the flat. In this
respect, the statement recorded of Aditya Dhillon by police, copy of
which is produced on record at Exh. JJJ (colly) indicates that he has
stated that he was present in the suit flat on 08.01.1998 when at 9.30
p.m., the door bill rang and when he opened the door, Plaintiff's wife
and three/four ladies entered and sat on the chair and they started
abusing him. He has stated that he got frightened and therefore, 'he
pulled the door and went to contact his parents'. He has then stated
that when his parents came, they saw that the door was open.
Therefore, there is complete inconsistency in the case made by the
Defendant about the incident of 08.01.1998. The statements about as
to how the Plaintiff's wife allegedly entered the suit flat when the
door was locked, whether the lock was broken or whether door was
broken, everything appears absolute untrustworthy.
57. In this respect, it is also material to note that in the police
diary, the concerned police officer has recorded in the midnight
between 08.01.1998 & 09.01.1998 when the alleged incidence was
informed and he went to verify at the suit flat, that 'he found that
safety door/grill was closed by putting a lock from outside'. When he
rang the bell, 'the inside door was opened by the Plaintiff' who
requested the police officer to open the door from outside. Therefore,
there is also reason to believe that the possibility of the Defendant
himself putting a lock on the outside grill door and raising false alarm
of dispossession cannot be ruled out. As stated in the complaint filed
by the Defendant himself (Captain M. S. Dhillon) on the same date
i.e 08.01.1998 at 10.30. p.m. Plaintiff's wife came along with four
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five 'gundas' and three / four ladies and entered the suit flat by over-
powering them. In this complaint, there is no mention of Aditya
coming to tell them about incidence and then Defendant or his wife
coming to the suit flat. This complaint mentions 'gundas' however
there is no such case either in the pleadings or the evidence of DW-1
or statement of the Aditya recorded by the police. It is material to
note that this complaint of Defendant Captain M.S. Dhillon is shown
to have been received by the concerned police officer on 08.01.1998
at 11.50 p.m. However, in the police diary there is not even a whisper
about Defendant's complaint and the reference is only made to his
son Aditya. The police dairy indicates that Aditya Dhillon reached the
police station at 1.40 a.m. i.e. post midnight between 08.01.1998 and
09.01.1998.
58. All the aforesaid documentary evidence shows sufficient
contradictions, not to believe the case of the Defendant about being
in possession on 08.01.1998. The Defendant has not been able to
examine even one witness from the neighbors of the suit flat in
support of his case that from January 1996 till January 1998 he was
in possession.
59. In the aforesaid facts and circumstances, on over all
preponderance of probabilities, in my view, the case of the Defendant
that the flat was sold under document dated 06.01.1996 and
Defendant and his family was placed into possession and they were
dispossessed on 08.01.1998 appears to be completely unbelievable.
As against this, the case of the Plaintiff that on 20.02.1997 he was
dispossessed, for which he filed suit under Section 6 of the Specific
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Relief Act in this Court, that during pendency of that suit, the
settlement took place and Defendant handed over possession of the
suit flat on 10.12.1997 and the Plaintiff was in possession on
08.01.1998, who felt apprehended again and therefore, obtained ad-
interim injunction, appears to be much more probable and far more
believable.
60. The Defendant and his family are well educated persons with
Defendant being Captain working in an Aviation Industry and their
son Aditya also working with the same industry. DW-1 herself was an
experienced lady in the affairs of the society, as according to her own
examination-in-chief, she was Secretary of the Hina Apartment
Society (where she resided) from 1987 onwards. She has admitted in
Cross-examination that she is M.A. in Psychology and was working as
Secretary of Hina Apartment from 1987 to 2001 and looked after
affairs of the society. She admitted that she used to conduct the
meetings of the society and the matters regarding sale and purchase
of the flat used to be put up before the committee and decision used
to be taken for issuing NOC. She has further admitted that she used
to look into the matters regarding transfer of share certificates in
favour of prospective purchasers. She has admitted while issuing
NOC from prospective flat purchasers, she used to call copy of the
agreement and legality of the agreement was also looked into.
61. If that be so, then it is unbelievable that such educated and
experienced parties will agree for purchase of their own flat on the
basis of a mere letter signed by one of the co-owners and will not
take any action in furtherance for getting proper sale deed executed.
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62. She has further admitted that she did not take search of the
title of the suit flat and did not pay any attention as to who is shown
as purchaser in the agreement of the suit flat. She has further
admitted that in March 1997 she came to know that the suit flat is
jointly owned by the Plaintiff and his wife. Even then the Defendant
or DW-1 did not take any steps to file suit for specific performance or
raised any counter-claim.
63. Considering the aforesaid evidence, the overall picture
emerging on the basis of preponderance of probabilities, is that
parties had business relationship about sale/purchase of shares; the
Defendant and his family had invested money with the Plaintiff; the
Defendant suffered losses for which the Defendant as well as other
investors were after Plaintiff, criminal complaints were filed; to
secure such amount, the letter of 06.01.1996 was created. The
Plaintiff was dispossessed after the incidence of 20.02.1997, when he
was in custody in connection with one of the complaints. However,
after he was released on bail, when criminal counter cases were filed
by Plaintiff against DW-1 and others, and DW-1 felt apprehended
about prosecution against her. Admittedly she had filed two bail
applications and then she agreed to hand over articles from the suit
flat; then settlement was arrived at and possession was returned on
10.12.1997. It is then falsely claimed that on 08.01.1998 the Plaintiff
tried to dispossess the Defendant.
64. In the light of aforesaid re-appreciation of evidence, the finding
recorded by the Trial Court about letter dated 06.01.1996 and
affidavit dated 10.12.1997 as well as about Plaintiff being in
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possession on the date of filing of suit, are legal and proper and no
interference is required.
65. In the result, the appeal fails and the same is dismissed. There
shall be no order as to costs.
ABOUT COURT RECEIVER REPORT NOS. 10, 13 & 21 OF 2023
66. Defendant has submitted that, he was paying society
maintenance all throughout till September 2025 and Plaintiff must be
directed to pay the society maintenance and other charges including
the charges of Court Receiver. Respondent / Plaintiff has contended
that he is not liable to pay any amount, either to the Court Receiver
or to the Society as he has been out of possession since Court receiver
took possession.
67. In this respect, I have perused the order of the Trial Court
dated 05.08.1998, report of the Court Receiver dated 13.08.1998 and
final common order dated 19.01.1999 passed by Trial Court in Notice
of Motion No. 4229/1998 taken out by the Defendant alongwith
Notice of Motion No. 99 of 1998 taken out by Plaintiff. The
cumulative effect of these orders and report is that Court Receiver
was directed to break open the lock of the suit premises with the
assistance of police, seal it and then hand over the same to the
Appellant/Defendant as agent of Court Receiver. It appears that the
Respondent /Plaintiff requested the Court Receiver not to bring
police and showed willingness to hand over possession.
68. I have also perused the order dated 12.07.2004 passed by this
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Court in Civil Application No. 4595 of 2002 by which the Court
Receiver was appointed by this Court and the Appellant was
allowed/continued to occupy the suit flat as the agent of the Court
Receiver.
69. The case of the Appellant/Defendant has been found to be not
believable. Since the Defendant is occupying the suit flat from
20.08.1998 when he was put in possession as the agent of the Court
Receiver till today, and since the case of the Defendant has been
found as not proved, it is the Defendant who is liable to pay the
society maintenance dues and arrears during the period of
occupation from August 1998 till today. For the same reason,
Appellant/Defendant is also liable to pay the charges of the Court-
receiver till he hands over possession back to Court Receiver. Since
Plaintiff's case is found believable and he was out of possession from
20.08.1998 till date, he cannot be directed to pay the amount of
Society maintenance and Court Receiver charegs.
70. In view of the provision of royalty made in paragraph 7 of the
Order dated 12.07.2004, the amount of royalty lying deposited with
the office of the Court Receiver, shall be paid over to the
Respondent/Plaintiff along with accrued interest, if any, immediately
on upload of this order.
71. The Court Receiver has pointed out that the Court Receiver's
costs, charges and expenses are recovered from the Appellant up to
10.01.2023. The balance costs, charges and expenses from
11.01.2023 till handover of the possession including costs of pending
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Court Receiver's Reports, shall be drawn by the Court Receiver within
a period of 4 weeks from today. The amount of costs, charges and
expenses after 11.01.2023 till the date of handover shall be borne by
the Appellant.
72. It is further pointed out by the officer of the Court Receiver
that according to the records, the amount of royalty is paid up to end
of October 2025. Accordingly, the Appellant is also directed to pay
royalty from 01.11.2025 till the time he hands over the possession to
the Court Receiver. On receipt of royalty amount for period from
01.11.2025, the same shall also to paid over to Respondent /
Plaintiff.
73. Since the appeal has been dismissed, the possession of the
Appellant as agent of the Court Receiver cannot be continued and
accordingly the Court Receiver is directed to take possession of the
suit flat from the Appellant and hand over the same to the
Respondent/Plaintiff within a period of six weeks from upload of this
order.
74. The maintenance amount paid by the Appellant/ Defendant
shall be considered as maintenance paid towards occupation of the
flat.
75. In that view of the matter, CRR/10/2023, CRR/13/2023 &
CRR/21/2023 are disposed of by directing that the amount of
Rs.1,16,665/- claimed by the Society be released and paid over to the
concerned Society along with accrued interest, if any. Also, any other
amount lying with the Office of the Court Receiver in the form of
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fixed deposit pursuant to earlier orders towards maintenance
amount, shall be liquidated and paid over to the concerned Society
along with accrued interest, if any. Such amounts to be paid within a
period of six weeks from upload of this order.
76. It is clarified that this order shall not affect the right of the
concerned Society for recovery of the maintenance from
Appellant/Defendant, who shall be treated as a person liable to pay
maintenance from 20.08.1998 till the date he / his family members
hand over possession back to the Court Receiver.
77. The amount that will be paid over to the society, shall be
subject to final adjustment of the accounts in accordance with law by
the concerned Society.
78. The Court Receiver shall stand discharged on handover of the
possession by the Appellant, without passing accounts.
79. So far as the request of the Respondent-Plaintiff that the
Appellant has made alteration in the suit flat for which the Appellant
should be penalised and appropriate action should be taken,
considering that suit was only for injunction and the appeal is being
dismissed, the Respondent shall be at liberty to adopt appropriate
proceedings against Appellant for recovery of damages and/or other
appropriate reliefs, in accordance with law.
80. The Appellant was put in possession of the suit flat under the
order of the Court initially by the Trial Court and thereafter by this
Court as agent of the Court Receiver. Therefore compliance with this
order about return/hand over to Court Receiver has to be ensured.
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81. At this stage, learned counsel Mr. Bhat appearing for the
Appellant seeks 8 weeks' stay to this order. In view of facts and
circumstances narrated above and considering the bitter history of
litigation between the parties, as is evident from the discussion
above, the request is rejected.
82. However, subject to the Appellant and all adult members of
Appellant's family filing an undertaking on affidavit in this Court
within a period of 2 weeks (from upload of this order), stating that -
(i) They shall obtain necessary calculation about pending costs,
charges and expenses of the Court Receiver and pending Royalty
amount from the concerned office within a period of 4 weeks from
today and
(ii) They shall pay the pending costs, charges and expenses of the
Court Receiver and pending Royalty amount on or before hand over
of the possession to the Court Receiver and
(iii) Subject to order of the superior Court, they shall handover the
possession of the suit flat to the Court Receiver within a period of 6
weeks (from upload of this order),
time of 6 weeks (from upload of this order) is granted to vacate the
suit flat.
83. In view of dismissal of appeal, pending applications are also
disposed of.
84. All concerned to act on duly authenticated or digitally signed
copy of this order.
(M.M. SATHAYE, J.)
