Dr. Ramit Dhalla And Anr. vs Sh. Kamal Arora
2005 Latest Caselaw 1621 Del

JUDGMENT

J.P. Singh, J.

Page 2524

1. This petition under Article 227 of the Constitution of India is directed against the order dated 29.8.2005 passed by Senior Civil Judge, Delhi, dismissing the first appeal against the order dated 18.8.2005 passed by Civil Judge, Delhi. The Civil Judge vide the said order dismissed an application under Order XXXIX Rule 1 & 2 read with Section 151 of the Code of Civil Procedure moved by the plaintiff. The first appellate court vide said judgment dismissed the appeal against the order passed by the Civil Judge.

2. I have heard Mr. Sunil Melhotra, learned counsel for the petitioner and Mr. K.C.Dua, learned counsel for the respondent on the point of admission and have gone through copies of the documents filed with the petition.

3. Briefly the facts are that the petitioners herein (plaintiffs in the trial court hereinafter referred to as 'plaintiffs') filed a suit for perpetual injunction on the ground that plaintiffs are owners/landlords in possession of a plot measuring 600 sq. yards. bearing property No. W-12/34-B, situated in Village Neb Sarai, Mehrauli, New Delhi. The said property was allegedly purchased from the defendant, on 16.12.2002 vide documents:- Agreement to Sell, Receipt, Possession Letter and General Power of Attorney (The General Power of Attorney is registered with the Office of Sub-Registrar Page 2525 vide document No. 1094 on 16.12.2002). It is alleged that the actual vacant physical possession was handed over to the plaintiffs on the same date and the members of their family are residing in the said plot of land. It is alleged that defendant's intentions became malafide and he wanted to take back possession forcibly and on 7.8.2005 at about 8.00 P.M. the defendant came with his henchmen and tried to throw away the belonging of the plaintiffs by breaking the wall at point A shown in the site plan. Mohalla people gathered, whereupon the defendant and his henchmen left with a threat to return within 2-3 days with larger force. The matter was reported to the police, but the police are said to be under the influence of the defendant. Hence the suit.

4. The cause of action accrued on 16.12.2002 and again on 7.8.2005. A decree is sought for restraining the defendant and his associates from forcibly dispossessing the plaintiffs or from interfering in their lawful possession and occupation or from blocking the ingress and egress of the plaintiffs in the said property.

5. On the file a copy of the counter claim of defendant for possession, declaration and perpetual injunctions in respect of the same property is placed. The defendant filed reply in this court alleging that the petition is an abuse of process of law and has been filed with ulterior motive to grab the vacant plot, measuring 600 sq. yds. bearing property No. W-12/34-B, situated at Neb Sarai, Mehrauli, New Delhi, belonging to the defendant. It is alleged that the plaintiffs have forged and fabricated the agreement to sell, receipt, letter of possession, all bearing the date 16.12.2002 and have forged the signatures of the defendant and have not come to the court with clean hands. Further, the plaintiffs have concealed material facts from this court.

6. It is averred in the reply that all the alleged documents viz., agreement to sell, GPA, receipt etc. have been allegedly notarized, but the said notary public Ms. Savita Dhaiya has given a certificate to the defendant that she never notarized the said documents. The said documents were filed in the appellate court and it is alleged that even notary's signatures have been fabricated in order to create a title in the plot of the defendant measuring 600 sq. yards.

7. Further it is alleged in the reply that the defendant inspected the register maintained by the stamp vendor in the office of the collector of stamps and found that the alleged stamp papers No. 18612 on which the agreement to sell has been fabricated in the name of the plaintiffs were never sold to them, but were sold to one M/s Kalluc Limited.

8. Photographs have been filed by the defendant which show that the iron gate fixed by the defendant had been removed and the new wall has been constructed in its place.

9. It is further pleaded in the reply that in the trial court the plaintiffs had referred to plot No. W-12/34-B, having an area of 600 sq. yards, but now before the High Court the area has been increased to 1200 sq. yards. It is submitted that the GPA signed by Kamal Arora (defendant) on 16.12.2002 is for the other plot of 600 sq. yards with built up house and it is in the name of Sh. B.P.Dhalla, Advocate and Mrs. Rekha Dhalla and not in the Page 2526 name of said Sh. B.P.Dhalla's sons namely Dr.Ramit Dhalla and Mr. Amit Dhalla (Plaintiffs).

10. After hearing both the learned counsel for the parties the following picture emerges:

There was a piece of land comprising 2 bigha 8 biswas equivalent to 2400 sq. yards in what is known as Sainik Farms. The said land belonged to Chote Ram, Phool Singh and Jag Ram (primarily agriculturists). On 22.5.1985 they sold the land to Shri Damodar Prasad Churiwala, who sold half of it (i.e, 1200 sq. yards) on 19.9.1988 to Kamal Arora and Lalit Kumar Khanna and the other half (i.e., 1200 sq. yards) to Vinod Khanna and Kapil Malhotra. Damodar Parsad, Churiwala had give power of attorney to S.L.Sehgal, who had executed a GPA in favor of Kamal Arora for the entire land. Kamal Arora and Lalit Khanna partitioned the 1200 sq. yards on 50-50 basis (i.e., 600 sq. yards each) and constructed boundary walls of higher height on the sides and of lower height in the middle.

11. On 16.12.2002 Lalit Khanna sold his 600 sq. yards to the plaintiffs by executing agreement to sell, receipt, possession letter and affidavit. Payment was made by way of demand draft of Rs. 5 lacs and an indemnity bond was written by Lalit Khanna for Rs. 35 lacs. Since the GPA of entire land was given by S.L.Sehgal to Kamal Arora (defendant), therefore to secure the deal of the plaintiffs, Kamal Arora, at the request of Lalit Khanna and Mr. B.P.Dhalla Advocate, executed a registered GPA in favor of parents of the plaintiffs (namely Mr. B.P.Dhalla, Advocate and his wife Mrs. Rekha Dhalla) for any necessities in future for doing some acts etc. pertaining to the 600 sq. yards of the land and built up house and similarly when Kapil Malhotra had sold his 1200 sq. yards of land even then Kamal Arora (defendant) being GPA for the entire land had executed a registered GPA for the vendee of Kapil Malhotra's plot of land.

12. It is alleged by the defendant that plaintiffs hatched a conspiracy to misuse the General Power of Attorney regarding the built up plot of 600 sq. yards for the vacant plot of 600 sq. yards, which the defendant never sold to plaintiffs. It is submited how a built up plot could be sold for Rs. 5 lacs vide Bank Draft and adjoining vacant 600 sq. yards plot for Rs. 10 lacs in cash on the same day? And further there is no execution of indemnity bond from the defendant, which was executed by Lalit Khanna in respect of his built up plot admeasuring 600 sq. yards.

13. The main emphasis of the learned counsel for the plaintiffs is that the plaintiffs are admittedly in possession and it is a settled law that a settled possession should not be disturbed without due recourse to law. I may say that there is no quarrel about the legal position. But this matter cannot be simplified like this. There is more than what meets the eye at first glance.

14. In the above mentioned background, facts and circumstances, let us examine the trial court order and the first appellate court judgment.

15. Perusal of the order dated 18.8.2005 passed by Civil Judge on the application under Order XXXIX Rules 1 & 2 CPC shows that the learned Page 2527 trial judge after mentioning the pleadings and contentions of both the parties has noticed that Damodar Prasad Churiwala had executed two registered GPAs in respect of 1 bigha 4 biswas in favor of Sh. Subhash Sehgal on 20.9.1988 and Sh. Subhash Seghal executed a registered GPA in respect of 2 bigha 8 biswa (2400 sq. yards) in favor of defendant Kamal Arora to enable him to execute further GPAs in favor of prospective buyers. The defendant and Lalit Kumar Khanna had mutually partitioned and demarcated their area in the land measuring 1 bigha 4 biswas (600 Yards) each by raising boundary wall of 8 feet approx. and one common dividing wall up to the height of 4 ft. thereby clearly separating the two plots measuring 600 sq. yards each. The portion which came in the share of Lalit Khanna was numbered as W-12/34-B and the portion which came in the share of defendant was numbered as W-12/34-C. Lalit Khanna had constructed a 2.1/2 storey building and he entered into agreement to sell in respect of W-12/34-C to the plaintiffs and executed the above referred documents. This built up 600 sq. yards was sold for Rs. 5 lacs through bank draft. Since defendant was GPA of Subhash Sehgal, in respect of the total land measuring 2 bigha 8 biswas (2400 sq. yards) Sh. B.P.Dhalla, Advocate and Lalit Kumar Khanna requested the defendant to execute the GPA in respect of the property of Lalit Kumar Khanna in favor of parents of the plaintiffs to secure their sons' rights and title and accordingly defendant executed the said GPA to prevent any legal impediments for the plaintiffs in future but the said GPA was for built up plot No. W-12/34-B measuring 600 sq. yards. The GPA was executed without any consideration (i.e., in good faith). He did so because his partner Lalit Khanna was not having GPA to completely transfer the property to the plaintiffs.

16. The learned trial court judge further opined that despite directions the plaintiffs had not filed the proper site plans showing the adjacent properties with their numbers and have rather avoided to do so despite repeated questioning by the court. The photographs also show that the two plots were separated by a common wall of lesser height.

17. Now while the plot with a 2-1/2 building was purchased vide bank draft of Rs. 5 lacs and indeminity bond of Rs. 35 lacs from Lalit Khanna, the adjoining vacant plot of same area is said to have been purchased on the same day by paying Rs. 10 lacs in cash to the defendant. In my view this is unbelievable, especially when a cash transaction above Rs. 50,000/- is not even permissible. This prima facie shows that when the registered General Power of Attorney executed by the defendant in respect of the built up plot measuring 600 sq. yards which was sold to the plaintiffs by Lalit Khanna came in the hands of the parents of the plaintiffs, the plaintiffs' party hatched a conspiracy to misuse the said GPA and then fabricated evidence of another agreement to sell, receipt etc. allegedly from the defendant in respect of the adjoining vacant plot of the defendant.

18. This position prima facie gets enforced by the certificate issued by the Notary Public and the purchase of the stamp papers not by the plaintiffs but by some third party. Besides the defendant is still paying the House Tax, the originals of most of these documents were not filed in the court. This has created further doubts and suspicion about the genuineness of the documents and truthfulness of the pleadings of the plaintiffs, even at the threshold.

Page 2528

19. This is further aggravated by registration of a criminal case because normally in such transactions a criminal case is not registered.

20. In the first appeal, against the order of the Civil Judge, the learned appellate Judge after referring to the contentions of both the parties has elaborately discussed the points raised in the appeal and has given eight reasons for dismissing the appeal. The first appellate court has also relied upon precedents. I have gone through all the reasons mentioned by the first appellate court in which glaring doubts and suspicion have been observed about the suit and contentions of the plaintiffs. I may have to repeat some of the facts alleged by the plaintiffs which stare in the face.

21. The very first paragraph of the registered General Power of Attorney by the defendant shows that the said General Power of Attorney pertains to 600 sq.yds. having 2-1/2 storey built up house, while for the alleged sale of the adjoining vacant 600 sq.yds Rs. 10 lacs (double amount) was paid in cash.

22. It is also known that the parties had become known to each other and since the land was adjoining and the intervening wall was not of much height the defendant must have allowed the use of his plot of land for marriages, etc., in the family of the Dhallas, because during the course of arguments to emphasize the point of possession, it was highlighted that the said land was under use of the plaintiffs for the purposes of marriage, etc. It is quite possible that two steps shown in the photograph to which my attention has been drawn were constructed for the said functions. The typed copy of the possession letter is at page 68 and typed copy of the receipt of Rs. 10 lacs paid in cash is at page 69. There is a gap of 2-3 inches or even more between the typed portion of the document and the signatures. However, the expert opinion will clarify the position. The photographs also prima facie show that a new wall has been raised and white-washed.

23. Since jurisdiction of the High Court under Article 227 has been invoked, therefore, some observations had to be made. If the defendant had to take possession forcibly, he would not have filed a counter claim for possession. The petition, in my view, is malafide. It has no merits, the same is, therefore, dismissed. The trial court is directed to dispose of the suit and the counter claim on merits within four months in accordance with law, uninfluenced by any observation made above.