Smt. Shashi Kanta And Others vs Smt. Sadhna Midha And Others
2001 Latest Caselaw 1216 Del

ORDER

A.K. Sikri, J.

1. Two cases involve identical facts and question of law. Therefore, these were heard together and are being disposed of by this common judgment. For the sake of convenience, facts of Suit no. 937/2000 are stated. The plaintiff claims herself to be the bonafide purchaser of built up property bearing no. 27/20 in Khasra no. 3630/3096/637 (min) situated at Village Chandawali alias Shahdara in the abadi of Gali no. 9, Vishwas Nagar, Shahdara, Delhi-110032 ad-measuring 100 sq. yds (hereinafter referred to as the Suit property, for short). The Suit is filed by her for declaration and perpetual injunction. She is seeking declaration to the effect that she is the lawful owner of the aforesaid property and that the defendants particularly defendants 1 and 2 have no right, title or interest of any kind whatsoever with respect to these property. Consequentially perpetual injunction is sought restraining the defendants 1 and 2 from interfering with the peaceful and physical possession of the plaintiff. The factual background which forced the plaintiff to file Suit of this nature is as follows.

2. One Shri Roshan Lal Chaudhary was the original owner of the Suit property in question, which was a plot of land admeasuring 200 sq. yds. He had one son-Shri Bhupinder Kumar Chaudhary, Shri Roshan Lal Chaudhary died on 1st September, 1968, the defendants 1 and 2 are the daughters of Shri Bhupinder Kumar Chaudhary. Shri Bhupinder Kumar Chaudhary executed a Power of Attorney in respect of this plot in favor of Smt. Santosh Mehta to deal with this plot in any manner she might like. Smt. Santosh Mehta, executed a General Power of Attorney to Shri Tilak Raj Aggarwal (the defendant no. 3 herein) on 2nd April, 1973. In fact by executing such General Power of Attorney the property was sought to be transferred. However, the defendants 1 and 2 challenged the execution of General Power of Attorney by Shri Bhupinder Kumar Chaudhary in favor of the aforesaid persons. In the said Suit which was filed through their mother, Smt. Champa Chaudhary, in addition to Shri Bhupinder Kumar Chaudhary, Smt. Santosh Mehta and Shri Tilak Raj Aggarwal were also imp leaded as defendants 7 and 8 respectively. The Suit was later on amended to incorporate the relief of possession as well. Smt. Santosh Mehta filed written statement. She alleged that while executing the Power of Attorney in her favor, Shri Bhupinder Kumar Chaudhary did not disclose any such Will dated 29th August, 1968 and he claimed title to the said plot being successor in interest to late Shri R.L. Chaudhary. She also stated that she was pressurised to execute the General Power of Attorney in favor of Shri Tilak Raj Aggarwal as he had come into illegal possession of the said plot. Although Shri Tilak Raj Aggarwal appeared through advocate but he did not file any written statement. After taking few dates for this purpose, he started absenting himself and was proceeded ex-parte. It may be mentioned that Suit was filed in the High Court. After the enhancement of the pecuniary jurisdiction of the District Court it was transferred to District Court. Notice were again directed to be issued to all the defendants. Shri Tilak Raj Aggarwal received the summons but did not appeal. Father of the defendants 1 and 2 (petitioners in the said Suit) also remained absent. Ex-parte evidence was led and ultimately judgment and decree dated 14th August, 1986 was passed by the Court of Shri P.R. Thakur, Additional District Judge, Delhi to the effect that petitioners are the owners in possession of the said suit plot and the proportionate land there under, as also joint owners of the portion and further declaring that any transfer or sale made in favor of defendant no. 7 (Smt. Santosh Mehta) and/or defendant no. 8 (Shri Tilak Raj Aggarwal) was illegal, unenforceable and not binding on the petitioners. Decree of possession was also passed in favor of the defendants 1 and 2 herein and against the defendant no. 7 and 8 in the said Suit. On the basis of this possession dated 23rd September, 1986 was issued. When the bailiff of the Court went to execute the warrants of possession, Shri Tilak Raj Aggarwal and his wife resisted the execution and at this stage Shri Tilak Raj Aggarwal - defendant no. 7 in the Suit moved application under Order IX Rule 13 of the Code of Civil Procedure along with application under Section 5 of the Limitation Act for setting aside the ex-parte decree dated 14th August, 1986. During the pendency of this application on 8th October, 1986 Shri Tilak Raj Aggarwal gave undertaking to the executing Court whereby he undertook to handover possession of the Suit property to the Decree Holders in the event his application under Order IX Rule 13 of the Code of Civil Procedure is dismissed. He also undertook not to part with the possession of the property in any manner without prior permission of the Court. He also undertook that any breach of the undertaking would tantamount to contempt of the Court. He, however, reserved the liberty to exercise his right pertaining to get decree set aside including all rights of appeal, revision, etc. By Order dated 4th June, 1997 application of Shri Tilak Raj Aggarwal filed under Order IX Rule 13 of the Code of Civil Procedure was dismissed. It may be pertinent to mention that this application was decided after evidence was led by both the parties. Shri Tilak Raj Aggarwal preferred appeal (being FAO No. 210/97) against the aforesaid Order which was also dismissed by Order dated 6th August, 1997. Mr. Tilak Raj Aggarwal, filed application dated 22nd April, 1998 seeking direction for supplying him copy of the amended plaint and all other documents filed by the petitioners along with the plaint. He also filed objections to the decree by filing application dated 17th February, 1997 under Section 47 read with Section 151 of the Code of Civil Procedure on the ground that decree was null, void and inexecutable. These applications were dismissed by Order dated 8th March, 1999.

3. Before possession could be taken by the defendants 1 and 2 after police aid was provided present Suit is filed on 10th May, 2000 by Smt. Shashi Kanta. In the Suit she alleges that Shri Tilak Raj Aggarwal executed a sale Deed dated 18th November, 1998 in favor of Smt. Deendayal Garg and Smt. Parvesh Garg, defendants 4 and 5 herein. She further claims that the defendants 4 and 5 have executed a General Power of Attorney and Agreement to Sell in favor of the plaintiff on 5th May, 1999. It may be mentioned that the plot of land which consisted of 200 sq. yds., she claims to have purchased 100 sq. yds. Other 100 sq. yds is stated to have been purchased by Shri Jugmander Dass Jain in the same manner. He has also filed Suit No. 2545/99 claiming identical relief on identical facts. The only difference is that as per the averments made in his plaint, he alleges that Shri Tilak Raj Aggarwal executed an Agreement to Sell dated 7th September, 1978 in respect of half of the land in favor of Shri Ram Kewal, Shri Ram Naval, Shri Ram Gati, Shri Ram Davar and Shri Ram Avadh. He also executed a General Power of Attorney in their favor. After the purchase of the land, they constructed the entire ground floor. In 1979, Suit for partition was filed by Shri Ram Gati against this brother i.e. Ram Avadh etc. and by judgment dated 29th April, 1980 Shri Ram Nawal was held to be the exclusive owner of the property. Shri Ram Nawal sold the constructed floor to Smt. Roop Bati - the defendant no. 4 vide registered Sale Deed dated 8th October, 1997 and Smt. Roop Bati constructed one more floor and thereafter sold the property to the petitioner by Sale Deed 7th May, 1999.

4. Along with the plaint the plaintiff had filed IA. 4273/2000 under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure in which ex-parte injunction was granted. The defendants had filed IA. 9274/2000 under Order XXXIX Rule 4 of the code of Civil Procedure for vacation of the injunction. When these applications were argued, learned counsel for the defendant had submitted that in view of the provisions of Order VII Rule 11 of the Code of Civil Procedure even this was liable to be rejected/Suit dismissed as in view of the judgment and decree dated 14th August, 1986 holding that the defendants 1 and 2 to be the exclusive owner of the property and further holding that their father had to right to transfer the property, the sale in favor of the defendants 7 and 8 in the said Suit was null and void. Shri Tilak Raj Aggarwal could not make any further sale in the property inasmuch as when he was not the owner of the property he had no right to pass a better title in favor of any other person. Thus, the alleged sale on the basis of which the petitioners in both the Suits are claiming their ownership are of no consequence and therefore the Suits filed by them are not maintainable. Arguments on this question were also advanced by learned counsel for both the parties. In view of the commonality of the facts and legal issues involved both the applications were heard together and are being disposed of by this common Order.

5. Before recording and appreciating the contentions of the parties in support of their respective stands on the applications are concerned, it would be appropriate to take stock of some more averments made in the plaint on the basis of which the relief is claimed. The case of the plaintiffs in both the Suits is that the plaintiffs are bonafide purchasers of the Suit property. The plaintiffs and their predecessors in interest have been in possession over the property for more than 27 years. The defendants 1 and 2 are claiming ownership on the basis of same Will allegedly executed by late Shri Roshan Lal Chaudhary and collusive decree. Shri Tilak Raj Aggarwal did not take any step to safeguard the interest of the plaintiffs and the previous owners. The plaintiffs were not aware at any point of time regarding the claim of the defendants 1 and 2 and had they been aware about this claim they would not have purchased the Suit property. The defendants 1 and 2 have no right in the property as they did not raise any construction, obtained electricity and water connections, and the decree, if any is collusive and not binding upon any of the plaintiffs. Even if it is assumed that the defendants 1 and 2 have any right in the property, in that event, the defendants 3-5 should pay the value of the property to the defendants 1 and 2 and the plaintiffs being bonafide purchasers they cannot be ousted from the property in question. On the basis of these very submission, learned counsel for the plaintiffs argued that application filed by the defendants 1 and 2 under Order VII rule 11 of the Code of Civil Procedure was misconceived and untenable. He further submitted that the plaintiffs had right to challenge the decree as collusive by filing Suit like the present one and in support of the submission he relied upon judgment of the Supreme Court in the case of Gram Panchayat of Village Naulakha versus Ujagar Singh and others . He further submitted that if the decree is obtained by fraud such a decree was null and void and was not at all executable as held by Apex Court in the case of Gowrishankar and another versus Joshi Amba Shankar Family Trust and others . It was his submission that after the father oft he defendants 1 and 2 namely, Shri Bhupinder Kumar Chaudhary sold the land in question, his intentions became bad and he was instrumental in challenging the same through the defendants 1 and 2, his daughters. That is the reason, he remained ex-parte. Collusion was further clear from the fact that even Shri Tilak Raj Aggarwal did not contest the Suit. Decree dated 14th August, 1986 is an ex-parte decree i.e. without contest by any of the defendants which on the face of it is collusive. After the sale of the property by Shri Bhupinder Singh Chaudhary in the year 1973 the same has remained in possession of other persons for almost 28 years. During this period property is constructed and has changed several hands. The plaintiff is the bonafide purchasers for valuable consideration and therefore the plaintiff cannot be ousted.

6. On the other hand, the learned counsel for the defendants 1 and 2 in pressing the application filed under Order VII Rule 11 of the Code of Civil Procedure submitted that as per the plaintiff's own averments made in para 11-15 of the plaint, the plaintiff is very well aware that she does not have any right or interest in the Suit property. Para 11 of the plaint shows that the plaintiff is very well aware that the answering defendants have a decree in their favor, which decree has become final and binding and has not been set aside till date in any proceedings. The prayers as sought for by the plaintiff cannot be granted in law or in equity, since the same, if granted, would tantamount to depriving a true owner of his/her valid title on the suit property. It was also submitted that the Suit of the plaintiff was hit by the doctrine of lis pendens enshrined in Section 52 of the Transfer of Property Act, 1882 inasmuch as all the alienation qua the Suit property has taken place during the pendency of the Suit No. 56/84 filed by the defendants 1 and 2 which culminated into decree dated 14th August, 1986. The plaintiff's argument that she is the bonafide purchaser for valuable consideration merits outright rejection because of established principle of law that no person can get a better title than what the original vendor professes to sell. Even if he was not aware of any such proceeding pending in the Courts that would be inconsequential and immaterial. It was also his submission that the bogey about the decree dated 14th August, 1986 being collusive, was totally sham in view of the repeated efforts made by Shri Tilak Raj Aggarwal to get the decree set aside and putting spokes in the execution of the said decree. The judgment cited by the plaintiff in the case of Ujagar Singh (supra) was sought to be distinguished on the ground that it was not applicable to the facts of the case for mainly two reasons, firstly for the reason that in the decree obtained by the answering defendants, the plaintiff is not the affected party since the plaintiff at that point of time, admittedly had no rights in the suit, property, and secondly, there is no challenge to the decree obtained by the answering defendants in the suit as would be evident from the prayers set out in the plaint, making it abundantly clear that the plaintiff very well knows that she has no locus standi to challenge the decree in issue. Reliance was placed upon the case of Supreme Court entitled Nagubai Ammal and others versus B. Shama Rao and others reported in 1956 SCR 451 wherein the Apex Court had observed that in collusive proceedings, combat is a mere sham on the ground that the facts of the present case are self-explanatory to the extent that the answering defendants, after a prolonged legal battle of 23 years, had acquired their legal right, title and interest in the suit property and to term the protracted legal proceedings by the answering defendants for asserting their rights as collusive is only made to be rejected. Learned counsel also relied upon the following judgments in support of aforesaid submission:-

i. Kedar Nath Lal and another versus Ganesh Ram and others .

ii. Ram Lakhan Singh versus Dy. Director of Consolidation and others reported in (1986) Suppl. SCC 682.

 iii.  Sarvinder Singh versus Dalip Singh and others    . 

 

 iv.  K.A Khader versus Rajamma John Madathil and others   . 

 

 v.  Chanda Sab versus Jamshed Khan and others  . 

 

 vi.  Mohammed Ali Abdul Chanimomin versus Bisahemi Kom Abdulla Saheb Momin and another   reported in AIR 1973 Mysore 131. 

 

 vii  Rappel Augusthi versus Gopalan Ramakrishan Panicker and others  . 

 

 viii.  Smt. Sayar Bai versus Yashoda Bai and others  .  

 

7. I have considered the aforesaid submission of counsel for the parties and have also gone through the various documents relied upon by the either party. The admitted position is that judgment and decree dated 14th August, 1986 has been passed in favor of the defendants 1 and 2. The certified copy of the judgment and decree has been placed by the defendants 1 and 2 on record. In para 6 of the judgment, the learned Additional District Judge has observed that Will of Shri Roshan Lal Chaudhary has been proved as Ex. P-1. Therefore, Shri Roshan Lal Chaudhary had executed a Will which was not only filed by the defendants 1 and 2 in Suit filed by them (being Suit No. 56/84) but the genuineness of the said Will was duly proved. Interestingly even the plaintiff in the present Suit mentions that Shri Roshan Lal Chaudhary had executed Will on October 3, 1967. The only difference is that the plaintiff claims that as per the said Will, Shri Roshan Lal Chaudhary had bequeathed the entire plot measuring 200 sq. yds. to his son Shri Bhupinder Kumar Chaudhary, whereas the case of the defendants 1 and 2 is that as per Will dated 29th August, 1968 the entire land was bequeathed in favor of the defendants 1 and 2 namely, the grand daughters of Shri Roshan Lal Chaudhary, Shri M.L. Chaudhary was made the Trustee of the said Will for safeguarding the interest of his grand daughters. Significantly, this Will was filed and proved before the Court of Additional District Judge in Suit No. 56/84 as exh. P-1. However, the same is not available the Court was informed, on the record of the said Suit. How missing of the same is a mystery. Fact remains that the defendants 1 and 2 cannot have any motive in removing the same as the defendants 1 and 2 have filed the Suit No. 56/84 on the basis of the said Will and got the decree in their favor. Otherwise also even if the Will is not on record now, one can rely upon the judgment and decree dated 14th August, 1986 to ascertain the contents of the Will. Naturally, the said judgment and decrees passed on the basis of the Will (Exh. P-1) holds that Shri Roshan Lal had bequeathed his property (the Suit property) to his grand-daughters i.e. namely the defendants 1 and 2. Therefore, the claim of the plaintiff that as per the said Will Shri Roshan Lal has bequeathed the entire plot to his son Shri Bhupinder Kr. Chaudhary is not correct. Once the said Will is proved before a competent Court of law and on that basis it can be said that Shri Bhupinder Kr. Chaudhary was not the owner of the Suit property, he had no right or authority to sell the Suit property to any one. Therefore, alleged sale by him of the Suit property to any person was of no consequence and did not transfer the interest in the said property in favor of the so-called buyers. Judgment and decree dated 14th August, 1986 in categorical terms holds and declares that transfer or sale made by Shri Bhupinder Kr. Chaudhary in favor of the defendant no. 7-Smt. Santosh Mehta and/or the defendant no. 8-Shri Tilak Raj Aggarwal is illegal, unenforceable and not binding on the plaintiffs in the said Suit i.e. the defendants 1 and 2 herein. The plaintiff in the instant Suit is the successive purchaser who purchased the Suit property to whom it was sold by Smt. Santosh Mehta and Shri Tilak Raj Aggarwal. It is a common case that the Suit property in the meantime has changed several hand. However, when the person to whom it was purportedly sold by Shri Bhupinder Kr. Chaudhary in the first instance was not valid and did not pass any valid title, subsequent sales by them or their successors are also of no consequence. These sales would be illegal and without jurisdiction. it is a well known principle in law that no person can pass on better title than the title he possess. Thus it follows that one who does not possess any title in the property cannot pass valid title in the said property to any other person (Nemo dat quod no habet).

8. This brings us to the question as to whether the judgment and decree dated 14th August, 1986 was a collusive decree as is sought to be contended by the plaintiff. As noted above, it was argued that the said decree being collusive and obtained by fraud is null and void and has no consequence whatsoever and relying upon the two judgments of the Supreme Court, reference to which has already been made above, it was contended that a fraudulent decree is unenforceable and can be challenged at any stage. However, this argument has not impressed the Court when admitted position prevailing here is examined. Nodoubt decree passed is an ex-parte decree. The collusion alleged is between the defendants 1 and 2 (namely, the plaintiffs in the said Suit) and their father Shri Bhupinder Kr. Chaudhary who was one of the defendants. However, significantly it was not only Shri Bhupinder Kr. Chaudhary who was the defendant. Even the persons who purchased the property were arrayed as defendants. By no stretch of imagination it could be said that those defendants were also colluding with the plaintiffs i.e. the defendants 1 and 2 herein. After notice to them, they appeared and later they chose to remain absent and were proceeded ex-parte. It was their choice for which the defendants 1 and 2 herein cannot be blamed or faulted with. Moreover, the subsequent events which took place demolishes the case of the plaintiff that the decree was collusive. Admittedly, Shri Tilak Raj Aggarwal-the defendant no. 7 in the said Suit moved an application under Order IX Rule 13, CPC for setting aside the ex-parte decree. His application was dismissed. This application was decided after the evidence was led by both the parties. He preferred appeal against this dismissal Order in this Court. Even this appeal was dismissed. He did not stop here. In the execution of the decree filed by the defendants 1 and 2 herein, he filed objections to the decree alleging that the said decree was null and void and unexecutable. These objections were also dismissed by Order dated 8th March, 1999. In the meanwhile, the defendants 1 and 2 herein (decree holders/petitioners in the Suit) filed application seeking permission to file additional Court fee which was all.owed vide Order dated 28th March, 1998 by the learned Additional District Judge. Appeal against this Order was preferred by Shri Tilak Raj Aggarwal which was dismissed by this Court vide Order dated 14th January, 1999. When Shri Tilak Raj Aggarwal failed in all his attempts to stop the execution of the decree, his wife Smt. Shashi Bala preferred separate application before the executing court. Not only this she also filed separate Suit for permanent injunction being Suit No. 321/97 claiming an independent right in the Suit property. This was dismissed by learned Additional District Judge vide judgment and decree dated 5th July, 1999. By Order dated 7th September, 1997, Decree Holders were given police aid for taking possession of the Suit property.

9. This shows that all possible attempts were made by Shri Tilak Raj Aggarwal first to get the decree set aside and then to thwart the execution proceedings. No person who is colluding with the plaintiffs in the Suit would take all these steps. The very conduct of Shri Tilak Raj Aggarwal shows that he wanted to challenge the right of the defendants 1 and 2 in the Suit property and made all possible attempts in this respect. It is a different matter that he failed in those attempts. Thus conduct of Shri Tilak Raj Aggarwal fighting the litigation for almost 13 years i.e. from 1986 when he moved the application under Order IX Rule 13, CPC till 1999 when the Order dated 5th July, 1999 was passed putting an end to the challenge by Shri Tilak Raj Aggarwal militates against the theory of collusion projected by the plaintiff herein. In view of these glaring facts on records, the bald and vague submission of the plaintiff to the effect that the ex-parte decree dated 14th August, 1986 is collusive decree merits outright rejection. It may be significant to state that only a feeble averment is made in the plaint alleging that the decree is collusive. Otherwise, no details are given as to how the plaintiff claims that the decree is obtained by fraud or is collusive and therefore, null and void. Even there is no prayer for setting aside this ex-parte decree. Therefore, the judgment cited by the plaintiff namely, Ujagar Singh (supra) and judgment in Gowrishankar (supra) have no application to the facts of this case.

10. The aforesaid facts would clearly show that the plaintiff herein purchased the property from a person who was not competent to sell having no right, title and interest int eh said property and therefore, the alleged sale doe snot pass any title in the Suit property in favor of the plaintiff. It is unfortunate that although the defendants 1 and 2 got the decree in August 1986 i.e. 15 years ago they are still deprived of the possession of the property. When the police aid for taking possession of the Suit property was given by the executing Court by Order dated 7th September, 1999 the present Suit was filed and stay obtained. It would also be significant to state that when Shri Tilak Raj Aggarwal had filed application under Order IX Rule 13, CPC, during the pendency of that application he had given an undertaking to the executing Court whereby he undertook to handover the possession of the Suit property to the Decree Holders in the event his application is dismissed. Of course he reserved the liberty to exercise the right of appeal, etc. but he failed in appeal also and thereafter in his attempts in execution also. Thus, it was an act of dishonesty which amounted to even contempt of Court that after giving undertaking dated 8th October, 1986 and after enjoying the benefit of the said undertaking, instead of giving possession of the Suit property to the Decree Holders he sold the property to a third party. For this cause of action of third parties like the plaintiff herein, namely, the successive purchasers, is against Shri Tilak Raj Aggarwal from whom she has purchased the property. By no means, the plaintiff can maintain such a Suit and deprive the real owners - the defendants 1 and 2 of the Suit property who never sold the said property to anyone including the plaintiff. In T. Arivandandam versus T.V. Satyapal and another AIR 1977 SC 2421 while dealing with the application under Order VII Rule 11, CPC the Supreme Court made the following pertinent observations:-

"The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O.VII R.11 C.P.C. taking care to see that the ground mentioned therein is fulfillled."

11. In the instant case when it is found that the Suit property has changed hands illegally and the real owners never sold the property and that no valid title has passed hands and resultantly the plaintiff has not acquired any valid title and that decree dated 14th August, 1986 is a valid decree and not collusive one, the present Suit filed by the plaintiff is clearly not maintainable and therefore warrants to be dismissed. Resultantly, IA. 4273/2000 filed by the plaintiff under Order XXXIX Rule 1 and 2, CPC is dismissed and IA. 9274/2000 filed by the defendants 1 and 2 under Order XXXIX Rule 4, CPC is allowed. Suit stands dismissed.