Usha Chhabra vs Krishan Lal Dutta
1997 Latest Caselaw 891 Del

JUDGMENT

Anil Dev Singh, J.

1. By the instant application under Order 39, Rules 1 and 2 of the Code of Civil Procedure, filed in Suit No. 1930/88, the plaintiffs seek an adinterim injunction against the defendants restraining them from disturbing the possession of the plaintiffs in respect of property No. A-47, Virender Nagar, New Delhi. This application was dismissed by a learned Single Judge of this Court on September 15, 1988. The plaintiffs preferred an appeal being FAO(OS)-132/88. The Division Bench remitted the matter to the Single Judge for consideration of a document namely Exchange Deed dated April 28, 1964. This is how this application has come up before me. The relevant facts which are necessary for the disposal of the application are as follows:

2. The plaintiffs instituted the above said suit on 10th August, 1988, inter alia, for declaration to the effect that the plaintiff No. 1 is the absolute owner of property bearing No. A-47, Virender Nagar, New Delhi and she is not liable to be dispossessed from the same in execution of a decree dated February 13, 1975 in Suit No. 492/73 passed by Sub-Judge, First Class, Delhi, in favour of the defendant No. 1 and against defendant No. 2 and late Mr. Goverdhan Dass and in execution of a decree dated 28th March, 1981 in Suit No. 409/80 passed by Sub-Judge, Ist Class, Delhi, in favour of defendant No.1 and against plaintiff No. 2. The plaintiff No. 1 claims to be the absolute owner of the above said suit property measuring 200 sq. yds., Virender Nager, New Delhi, the particulars whereof are as under:

East (street) 15' wide

West Road 20' wide

North House No. WZ-213 on plot No. A-46

South House No. WZ-218

3. How the plaintiff No.1 bases her claim to the suit property has some history behind it. One Dewan Ram Gopal, father of defendant No. 6, was the original owner of a large tract of land comprised in Khasra No.777, Mauza Tihar, including plot No. A-47, Mauza Tihar, now known as Virender Nagar, within the limits of Municipal Corporation of Delhi. On March 12, 1958 Ram Gopal sold a plot of land bearing No. VB-27, measuring 200 sq. yds. out of Khasra No. 777 situated at Virender Nagar to Smt. Shanti Devi, defendant No.4. The sale-deed was registered on September 17, 1958 in the Office of Sub-Registrar, Kashmere Gate, Delhi. On July 30, 1959 Smt. Shanti Devi, defendant No.4 sold the above said plot in favour of Smt. Mohan Devi, defendant No. 5 for a consideration of Rs. 950/-, vide sale deed registered in the Office of the Sub-Registrar, Delhi on July 31, 1959. On April 28, 1964 Smt. Mohan Devi, defendant No. 5 and Dewan Ram Gopal, the original owner, executed a document of exchange whereby plot No. VB-27 was exchanged with plot No. A-47 measuring 200 sq. yds. situated in the above said Khasra number, namely, 777 in Virender Nagar, New Delhi. This Exchange Deed was registered on May 6, 1964. The description of the plots given in the Exchange Deed is as under:

Plot No. VB-27 Plot 7 No. A-47 East Gali (street) East - Gali 15' wide West Sarak (Road) West - Sarak Road 20' wide North VB/26 North - Plot No. 26, H.No. WZ-213 owned by Sh. Ram Nath

s/o Hushnak Rai.

South - House No. WZ-218

4. The plaintiff No. 2 (husband of plaintiff No. 1) was interested in the purchase of plot No. A-47. The plot was said to be In the occupation of a tenant namely, Hem Raj. On July 4, 1979, plaintiff No. 2 allegedly paid a sum of Rs. 7,500/- to Shri Hem Raj, against a registered receipt, for the purpose of securing the occupancy/tenancy rights in respect of the said plot, namely, A-47, Virender Nagar. Thereafter, Smt. Mohan Devi is stated to have executed a Will on July 7, 1979 bequeathing plot No. A-47 including superstructure thereon to plaintiff No.2. This Will was registered with the Sub Registrar on July 9, 1979. That apart she executed an irrevocable general power of attorney in favour of one K.L. Dhall authorising him to execute the sale-deed if and when necessary. Finally, Smt. Mohan Devi, defendant No. 5, allegedly sold the above said plot on March 19, 1982 to plaintiff No.1 by means of a sale-deed registered with the Sub-Registrar on June 23, 1982. The plan attached with the sale-deed dated March 19, 1982 described the plot as follows:

      East       :       Gali 15' wide 
     West       :       Lane/Road 20' wide 
     North      :       House No. WZ-213 on plot No. A-46 
     South      :       House No. WZ-218 
 

5. After the sale of plot No. A-47 in her favour, plaintiff No. 1 is stated to have constructed a single storeyed house thereon as per the sanctioned plan. The construction was completed on August 21, 1982 and a completion certificate therefore was granted by the Municipal Corporation of Delhi on August 31, 1982. Subsequently, the plaintiff claims to have raised further construction on the property. This property has been subject-matter of two decrees in two suits, namely Suit No. 492/73 and Suit No. 409/80. Though number of the property mentioned in both the plaints was V/B-64/B, the fact remains that description of the property given in the plaints was similar to the description of property mentioned by the plaintiffs in the instant suit.

Facts of first Suit No. 492/73:

6. On April 7, 1979, defendant No. 1 herein purchased plot No. V/B-64/B from Ram Gopal. On August 27, 1973, defendant No. 1 Krishan Lal Dutta, filed a suit against Jagan Nath, defendant No. 2, and the above said Goverdhan Dass seeking possession of plot No. V/B-64/B measuring 200 sq. yds. at Virender Nagar and for damages on the ground that the said persons had trespassed on the plot in question. On February 13, 1975 the suit was decreed by Shri Ravi Kumar, Sub-Judge 1st Class, Delhi. On December 4, 1979 Krishan Lal, defendant No.1 took possession of the plot in execution of the decree and the execution filed by the said defendant was dismissed as satisfied. On December 8, 1979 defendant No. 1 filed an FIR with Police Post Virender Nagar stating that plaintiff No. 2 Behari Lal Chhabra had forcibly dispossessed him from the plot No. V/B-64/B of which he had obtained the possession on December 4, 1979 in execution of his decree in Suit No.492/73.

Facts of second Suit No. 409/80:

7. On January 16/18, 1980, defendant No. 1 herein instituted a suit, being Suit No.409/80, under Section 6 of the Specific Relief Act for possession on the ground that upto December 8, 1979 plot No. V/B-64/B, Virender Nagar, Delhi, measuring 200 square yards was in his possession, but on that date he was dispossessed by plaintiff No. 2 herein, Behari Lal Chhabra, and his cousin Vinay Kumar. The description of the plot was given in the plaint as follows:

      East       :       Service Lane
     West       :       Road 
     North      :       House No. WZ-213 
     South       :      House No. WZ-218 
 

8. Plaintiff No.2 in his written statement, inter alia, stated that defendant No.1 was never in possession of the premises described in the plaint. He further averred that the description of the plot as given in the plaint was wrong and it did not tally with or correspond to the plot in his possession. Plaintiff No. 2 categorically stated that he was in possession of the suit premises as its legal owner and defendant No.1 did not have any title or interest herein. It needs to be pointed out that in the written statement plaintiff No. 2 failed to specifically give the description of the plot. He also did not dispute the fact that the number of the plot was V/B-64/B. After filing of the written statement plaintiff No. 2 filed an application under Order 6, Rule 17 for amendment of the written statement on the ground that he had not pleaded in the written statement that the plot in his possession bears a different number i.e. A-47, Virender Nagar, New Delhi. On October 17, 1980 the application of the plaintiff No.2 was dismissed and the prayer for amendment was rejected by the Sub-Judge First Class, Delhi. Plaintiff No.2 did not agitate against this order rejecting his application under Order 6, Rule 17. Subsequently, on March 28, 1981 the suit instituted by defendant No.1 was decreed and the bailiff of the Court was directed to deliver to defendant No.1 possession of the plot V/B-64/B. At this stage, it will be convenient to extract the relevant part of the order of the Sub-Judge decreeing the suit:

"There is nothing in the deposition of DW 3 that when Hem Raj handed over the possession. It is the admitted case of the defendant that he got the possession through Hem Raj. No evidence has been brought on the record to show that Hem Raj was actually in possession of the suit premises. There was every opportunity at the hands of DW 2 Hem Raj to prove that he remained in the possession of the suit premises and also the defendant has failed to place on the record any documentary evidence to show that he entered the suit premises or the possession was handed over to him in August, 1979. Reading the evidence brought on the record by the defendant together with the evidence of the plaintiff and the report of the plaintiff, l am satisfied that the defendant was not in possession of the suit property on 4.12.79, when the possession was delivered to the plaintiff by the bailiff."

xx xx xx

Thus, the possessory rights of the plaintiff in the suit premises are to be protected by the Court under Section 6 of Specific Act as the possession was duly delivered by the bailiff to the plaintiff on 4.12.1979. The plaintiff is thus entitled for relief as prayed by him in the suit. A decree for restoration of possession of plot No. V/B-64, Verinder Nagar, New Delhi, is passed in favour of plaintiff and against the defendant, together with costs of the suit and fee as per the rules. Decree-sheet be prepared accordingly and file be consigned to the Record Room."

9. Apart from the above two suits, details of other litigation concerning the plot in question require to be mentioned. (1) The plaintiff No.2 on April 28, 1980, instituted Suit No.334/80 in the Court of Senior Sub-Judge, Delhi, for declaration to the effect that the decree obtained by defendant No.1 on February 13, 1975 in Suit No. 492/73 is void and not binding upon plaintiff No. 2 being obtained by misrepresentation and fraud. In this suit plaintiff No.2 claimed that he was the owner of the house built on plot No. A-47 measuring 200 sq. yards and forming part of Khasra No.777 situated in Abadi known as Virender Nagar, Village Tihar, Delhi, bounded as under;

      East       :       Gali 15 feet
     North      :       House built on Plot No. A-46 (House No. WZ-213) 

     West       :       Gali 15 feet 
 

10.  On July 5, 1983, the plaintiffs withdrew the suit and accordingly  the suit was dismissed as withdrawn. 
  

(2) While Suit No.334/80 was still pending, plaintiff No.2 instituted another suit on October 21, 1982, being Suit No.60/84, seeking a declaration that the actual number of the property in question was A-47, Virender Nagar, New Delhi, and not V/B-64B, Virender Nagar, New Delhi, and as such the decree dated March 28, 1981 in Suit No.409/80 passed by the Sub-Judge, First Class, Delhi, was not executable against plaintiff No. 2. Plaintiff No. 2 also claimed a permanent injunction for restraining defendant No. 2 from executing the decree dated March 28, 1981 in Suit No. 409/80. Plaintiff No. 2 in the suit asserted that he entered into a contract for purchase of plot No. A-47, Virender Nagar, New Delhi, with Smt. Mohan Devi on April 7, 1979 for a consideration of Rs. 21,000/- and received possession of the said plot after paying premium to the occupier Shri Hem Raj for surrendering his possessory rights. On July 4, 1983 plaintiff No. 2 sought withdrawal of the suit and the same was dismissed as withdrawn.

(3) A Civil Misc. (Main) 96/81 was filed by plaintiff No. 2 on July 14, 1981 under Article 227 of the Constitution challenging the decree dated March 28, 1981 in Suit No. 409/80. Even this petition was withdrawn by plaintiff No. 2 and accordingly the same was dismissed as withdrawn.

(4) Yet another attempt was made for stalling the execution of the decree in Suit No. 409/80 by institution of a Suit No. 30/82 on January 16, 1982 by Mohan Devi through her attorney K.L. Dhall seeking a declaration that the plot, measuring 200 sq. yds. in Khasra No. 777 situated in Abadi of Virender Nagar and bounded by East: Gali 15'; Noth: House WZ 213 built on Plot No. A-46(AVB46); South: House No.WZ-218; West: Gali 15', was owned and possessed by her and the judgment and decree passed in Suit No.409 of 1980 is not executable. On August 28, 1985 the suit was dismissed for default. It needs to be pointed out that the description of the plot given in the above said suit tallies with description of plot given in Suit No. 409/80.

11. Having noticed the details of the litigation concerning the property A-47, Virender Nagar, and property No. V/B-64/B, Virender Nagar, it is time to turn to the facts relating to the question of execution of the decree passed in Suit No. 409/80. Defendant No.1 on April 3, 1981, filed an execution in the Court of Senior Sub-Judge, 1st Class, Delhi, seeking possession of the premises V/B-64/B in terms of decree dated March 28, 1981. Plaintiff No.2 filed objections to the execution, inter alia, on the ground that decree in the suit was obtained in respect of plot No.V/B-64/B, a non-

existent plot and the same could not be executed against VB-47 owned by plaintiff No.2. This objection was dismissed by the Executing Court on December 23, 1981. Plaintiff No. 2 aggrieved by the order of dismissal of the objections filed a Civil Revision No. 630/82. The revision petition came to be dismissed on August 9, 1982 by Justice N.N. Goswamy. While dismissing the revision it was observed that the plaint of Suit No. 409/80 as also the decree specified the boundaries of the property and the same could be identified. The plaintiff No. 2 filed another set of objections on January 14, 1983 which came to be dismissed by the Executing Court on August 8, 1983. Despite these orders there was no outcome of the execution petition and the decree remained unexecuted. On October 22, 1982, the defendant No.1 filed an application under Order21, Rule 35 and Section 151 in the execution matter for seeking an order for delivery of possession of plot No. V/B-64/B, Virender Nagar, with a direction to pull down and demolish the construction on the plot and to remove the malba therefrom. On June 9, 1984 the Sub-Judge,1st Class, Delhi, dealing with the matter dismissed the application holding that building is not standing on the plot subject matter of the suit from which the execution arose. Having held that he consequently dismissed the execution petition on August 10, 1984.

12. Aggrieved by the order of the Executing Court, defendant No.1 moved a civil revision petition being C.R. No. 104/85. On July 22, 1988 P.K. Bahri, J., allowed the revision petition and set aside the orders of the Executing Court dated June 9, 1984 and August 10, 1984. While disposing of the revi-sion it was noted that on May 29, 1981 the Executing Court recorded the statement of the Counsel for defendant No.1/decree-holder in which it was mentioned that the decree-holder had nothing to do with property No. A-47 and the decree-holder would take possession only of the plot No. V/B-64-B.

The Court also noticed that the statement of the Counsel for plaintiff No. 2/Judgment-debtor was also recorded by the Executing Court in which he mentioned that the judgment-debtor had no objection to the decree-holder getting possession of plot No. V/B-64/B. The Court also focussed its attention to the fact that plaintiff No.2 in his statement described the property A-47 as having the following boundaries:

      East       :       Service Lane 
     West       :       Road 
     North      :       House No. WZ-213 or 213-A 
     South      :       House No. WZ-218-B
 

13. While passing the order, the Court referred to Para 1 of the plaint of Suit No.409/80 filed by defendant No.1 herein in which it was mentioned that the plot subject-matter of that suit bears No. V/B-64/B bounded as follows:

      East       :       Lane 
     West       :       Road 
     North      :       House No. WZ-213 
     South      :       House No. WZ-218-B 
 

14. Thus, the Court came to the conclusion that plaintiff No.2 had given the same boundaries of property No. A-47 as that of V/B-64/B. The Court also took into account that the plan of the plot, Ext.P2, which was proved in Suit No.409/80 by defendant No.1, also depicted the same boundaries. It was emphasised in the judgment that the boundaries of plot in dispute were given in the plaint (Suit No. 409/80) in clear terms and the plot was also delineated with complete boundaries in the plan filed alongwith the plaint, which was also proved, and since the suit of defendant No. 1 was decreed for possession under Section 6 of the Specific Relief Act in respect of the said plot, the Executing Court had no jurisdiction whatsoever to go into the question whether the suit plot bears Municipal number A-47 or not, and it could not reopen the issue and come to a different conclusion. The Court also took into consideration that the two suits filed by plaintiff No. 2 had been withdrawn by him.

15. At this stage, the direction passed by P.K. Bahri, J., in the civil revision may be set out:

"I hence allow this civil revision petition and set aside the impugned orders and direct that the execution petition of the decree-holder be restored to its original number and warrants of possession be issued and possession be delivered with the aid of the police, after demolishing the structure existing at the spot and the respondent/judgment-debtor would be entitled to remove "malba". The petitioner/decree-holder shall have costs in this civil revision petition. Counsel fee is fixed at Rs. 1,000/-."

16. The instant suit filed by Smt. Usha Chhabra plaintiff No.1, and Shri Behari Lal Chhabra plaintiff No. 2, is again a suit, as already seen, for resisting the execution of the decrees passed in Suit No. 409/80 and Suit No. 492/73 mainly on the ground that plaintiff No.1 is the absolute owner of property No.A-47 and the decree obtained in Suit No. 492/73 is a collusive decree and is null and void. As already pointed out, the instant application, which is for restraining defendant No. 1 from disturbing the possession of the plaintiff over property No. A-47, Virender Nagar, was dismissed on September 15, 1988 by Y.K. Sabharwal, J. In the appeal filed by the plaintiffs against the above said order of Sabharwal, J., the Division Bench vide its order dated April 3, 1989 remitted the case for consideration of the Exchange Deed dated April 28, 1964 and its effect. The relevant portion of the order of the Division Bench is as follows:

"Since no other question arises in this appeal, we remand the case to the learned Single Judge to consider the Exchange Deed dated 28th April, 1964 between Mohan Devi and Ram Gopal and its effect."

17. Thereafter the matter was listed before Sabharwal, J. On February 16, 1990 the matter was released from part heard as Sabharwal, J. was not sitting on the original side. This is how the application has now come up for disposal before me.

18. As per the order of the Division Bench dated April 28, 1964 I am required to consider only the effect of Exchange Deed dated April 28, 1964 executed between Smt. Mohan Devi and Ram Gopal. The Exchange Deed, a copy whereof is at page 59/11A of Part II of the suit file, recites that plot No. VB-27 measuring 200 sq. yds. out of Khasra No. 777 situated at village Tihar, Delhi State, Delhi abadi known as Virender Nagar Colony, Delhi State bounded as under was purchased by Smt. Mohan Devi from Smt. Shanti Devi through registered sale-deed dated July 31, 1959:

      East      :    Gali 
     West      :    Road
     South     :    Plot No. VB-28 
     North     :    Plot No. VB-26 
 

19. The Exchange Deed also recites that Dewan Ram Gopal is the owner of plot No. A-47, measuring 200 sq. yds. comprised in Khasra No. 777 situated at Village Tihar, Delhi State known as Virender Nagar Colony, Delhi State bounded as under:

      East      :    Gali 15'
     West      :    Road 20'
     South     :    House No. WZ-218
     North     :    Plot No. 46 House No. WZ-213
 

20. It further recites that the parties i.e. Mohan Devi and Dewan Ram Gopal have exchanged the above said plots with each other, i.e. to say that as a result of the exchange Mohan Devi acquired plot No. A-47, while Dewan Ram Gopal acquired plot No. VB-27. Subsequently Mohan Devi vide sale-deed dated 19th March, 1982 sold the plot No. A-47 to the plaintiff No. 1. It may be recalled that before execution of the sale-deed in favour of plaintiff No. 1, Mohan Devi had entered into an agreement to sell with plaintiff No.2, husband of plaintiff No.1. She also executed a Will dated July 17, 1979 bequeathing plot No. A-47 including superstructure thereon to plaintiff No.2. Besides, she had executed an irrevocable general power of attorney in favour of one Mr. K.L. Dhall authorising him to execute the saledeed. A perusal of the description of the property mentioned in the Exchange Deed coincides with the description of the property No. V/B-64/B given in Suit No.409/80. This suit was instituted by defendant No.1 under Section 6 of the Specific Relief Act for possession on the ground that up to December 8, 1979 plot No. V/B-64/B, Virender Nagar was in his possession but on that date he was dispossessed by plaintiff No.2, Behari Lal Chhabra and his cousin. This suit was decreed on March 28, 1981. Since in that suit the Court came to the conclusion that defendant No. 1 was dispossessed otherwise in accordance with law, the possession of the defendant No.1 must be restored. The mere fact that suit for title has been filed by the plaintiffs on the basis of Exchange Deed, will not disentitled the defendant from enjoying the fruits of the decree which was under Section 6 of the Specific Relief Act. In case the plaintiffs in the instant suit establish title over the plot, in that event they will be entitled to a decree for declaration and for possession. Learned Counsel for the plaintiffs submitted that the decree passed in Suit No. 409/80 will not bind plaintiff No. 1 as she was not a party in that suit. Sabharwal, J. considered this aspect of the matter in his order dated September 15, 1988. In this regard it was observed as follows:

"Learned Counsel vehemently urged that, in any case, the withdrawals of the earlier suits or the pleadings of the said suits cannot effect right, title or interest of plaintiff No.1. He submits that relationship of plaintiff Nos.1 and 2 of wife and husband is of no consequence insofar as right of wife are concerned. This argument can be appreciated only after enumerating as to how the wife is claiming the right to the property. She claims title to the property on the basis of the sale-deed executed in her favour on 19th March 1982 which is much after the decree dated 28th March, 1981. The case as set up is, plaintiff No. 2 had entered into an agreement with Smt. Mohan Devi for purchase of the plot in question on 7th July, 1979. It is plaintiff No.2 who paid Rs.19,000/- out of sale consideration of Rs.21,000/- to said Smt. Mohan Devi. All documents executed by Smt. Mohan Devi on 7th July, 1979 were in favour of plaintiff No.2 including a Will bequeathing the property to him. Smt. Mohan Devi had also executed an irrevocable general power of attorney in favour of Mr. K.L. Dhall authorising him to execute sale-deed if and when necessary in favour of plaintiff No.2. Plaintiff No.2 says in the plaint that he got the propriety possession of the plot. It is further explained in the plaint that with a view to save the capital gain tax, it was decided by the plaintiffs that the plot should be sold to plaintiff No.1 alone and advance of Rs.19,000 /- be adjusted towards the sale consideration. In face of these averments in the plaint, prima facie it is not possible to accept the contention of learned Counsel that case of plaintiff No.1 is altogether independent from that of plaintiff No. 2. It is not the case of plaintiff No.1 that she had no knowledge of the earlier proceedings which were being hotly contested by her husband plaintiff No. 2. A vague averment had been made in the plaint about negligence of plaintiff No.2. The plaintiff No.2 is a witness to the sale-deed dated 19th March, 1982. He fully knew about the pending litigations and still it was stated in the sale-deed that the property was free from any dispute. Suit No. 60/84 was filed in October, 1982 but no reference was made to the sale-deed. In view of the facts and circumstances of the case, plaintiff No. 1 cannot claim any independent right in the suit property and she had to fall or stand with her husband plaintiff No. 2. It is no doubt true that decree in suit under Section 6 of the Specific Relief Act cannot operate as a bar to subsequent suit on the basis of the title. However, in this case suit for title had been filed by plaintiff No.2 and had been withdrawn unconditionally, and prima facie the present suit would be barred on principles of res-judicata and as also under the provisions of Order 23 of the Code of Civil Procedure in so far as plaintiff No. 2 is concerned."

21. Thus Sabharwal, J. came to the prima facie conclusion that plaintiff No.1 cannot claim any independent right in the suit and she must fall or stand with her husband plaintiff No.2. Sabharwal, J. was also of the opinion that the boundaries of plot No. 64/B as given in the plans tally with the boundaries given in the sale-deed dated April 7, 1979 executed in favour of defendant No.1. He also concluded that boundaries of plot No. V/B-64/B and boundaries of plot No. A-47 are the same. As already pointed out the matter has been remitted by the Division Bench only to determine the effect of the Exchange Deed, otherwise the reasoning of Sabharwal, J., in coming to the conclusion that "the plaintiff No. 1 cannot claim any independent right in the suit property and she has to fall or stand with her husband plaintiff No. 2", has not been interfered with. Even if I am required to take an independent view of the matter I will not hesitate to take the same view as taken by Sabharwal, J. and hold that plaintiff No. 1 cannot have an independent and a separate cause of action from plaintiff No. 2 who had already filed various suits to thwart the execution of the decree passed in Suit Nos. 409/80 and 492/93.

22. Bawa Shiv Charan Singh, learned Senior Counsel for the plaintiffs, cited some authorities on the question of grant or refusal of temporary injunction. The position in law is well settled and it is not necessary to refer to those authorities.

In view of the aforesaid discussions, the application of the plaintiffs seeking ad-interim injunction against the defendants restraining them from disturbing the possession of the plaintiffs in respect of property No. A-47, Virender Nagar, New Delhi, is dismissed. In order, however, to safeguard the interests of the plaintiffs it is directed that defendant No. 1 will preserve the property and will not make any additions or alterations therein, or raise construction thereon. Defendant No. 1 will also not sell, alienate or part with possession of the property in question till the disposal of the suit.