Chattar Singh vs Ashok Kumar And Ors.
2007 Latest Caselaw 1014 Del

JUDGMENT

S. Muralidhar, J.

CM No. 1928-29/2007

1. The CM 1928 of 2007 is an application for recall of the order dated 5.2.2007 by which Writ Petition (C) No. 6115 of 1998 was dismissed. By the said order this Court had found that the prayer in the writ petition made by the petitioners for restraining the respondents from interfering with their possession in respect of the property in khasra Nos. 1364 to 1367 and 1370, Basai Darapur, New Delhi, could not be granted since the land did not belong to them and further since they were encroachers on the said land.

2. CM 1929 of 2007 is an application seeking a direction to the respondents to maintain status quo and to restrain them from interfering with the "lawful possession of the petitioners from the property in dispute."

3. Although the order dated 5.2.2007 passed by this Court is a detailed one on the merits of the matter, it was made in the absence of the counsel for the petitioners who had not appeared on the date when the matter was finally heard. This Court has repeatedly held that an application seeking recall of such an order is in effect an application seeking review of such order (PUR Polyurethane Products (P) Ltd. v. Smt. Geeta Bhargava 2006 VII AD (Delhi) 276). Accordingly, this Court is treating this application as one seeking review of the order dated 5.2.2007 and is disposing of the said application on that basis by this judgment.

4. The seven petitioners who filed Writ Petition (C) No. 6115 of 1998 are Shri Chhattar Singh, Shri Rattan Singh (both sons of Shri Surat Singh), Shri Rajbir Singh, Shri Subhash Tanwar (both sons of Shri Chhotey Lal) Smt. Satyawati (wife of Shri Chhotey Lal), Kumari Kamlesh (daughter of Shri Chhotey Lal) and Shri Ram Dass (son of Shri Ghista Singh). In the said petition it was claimed in paragraph 1, that "petitioners are co-owners and landlords of property bearing khasra Nos. 1364 to 1367 and 1370, Basai Darapur, New Delhi." It was claimed that the above property was their ancestral property and that the said property including land "is jointly owned by the petitioners and four others namely Shri Rattan Lal @ Rattan Singh, Shri Chhotey Lal, Shri Ram Dass and Shri Shiv Charan Singh and the land in question is in exclusive possession of petitioners being co-sharers and co-owners thereof."

5. It was claimed that a show cause notice was issued on 12.10.1978 by the Municipal Corporation of Delhi (MCD) stating that there was unauthorized construction in khasra No. 1367. By a notice dated 5.2.1979, the petitioners were called upon to appear before the Zonal Engineer (Building) and to show proof of ownership, that despite the petitioners replying to the show cause notice, a demolition squad visited the property on 12.12.1978 and threatened to carry out the demolition; that petitioner No. 1 Chhattar Singh thereafter filed Suit No. 577/78 against the MCD for permanent injunction restraining the MCD from demolishing "any portion of the property in khasra No. 1367, Basai Darapur, New Delhi and also restraining the defendant from evicting the plaintiff from khasra Nos. 1364, 1365, 1366, 1367 and 1370, Basai Darapur, New Delhi." and that the suit was contested by the MCD and one of the issues framed was : "Whether the plaintiff is the owner of the suit property"

6. By a judgment dated 5.11.1981, the learned Sub-Judge, Delhi decreed the suit after holding that the plaintiff i.e. Chhattar Singh was "the owner of the property". The MCD was "restricted from demolishing any portion of the property in Khasra No. 1367, Basai Darapur, New Delhi. Defendants are further restrained from evicting the plaintiff from Khasra Nos. 1364, 1365, 1366, 1367 and 1370, Basai Darapur, New Delhi without due process of law."

7. It was further claimed in the petition that the MCD had filed an application in January 1991 before the Estate Officer seeking eviction of the petitioners. The Estate Officer on 26.7.1993 remanded the case to the MCD in order to get the land demarcated from the Revenue Department of the Delhi Administration. The appeal preferred by the petitioner against the said order is stated to be pending consideration before the appellate authority, who had directed a status quo by an order dated 20.10.1994.

8. It is stated that when despite the petitioners showing them a copy of the judgment dated 5.11.1981 in Suit No. 577/78, the respondents on 24.10.94 demolished some construction existing on the property, the petitioner filed a contempt petition, which is also pending in this Court. It is stated that some demolition took place on 4.9.98. In para 26 of the writ petition, it is stated that "Land in question is ancestral property of the petitioners. This land was never sold or transferred by the petitioners to any one." Reference is made to the khasra girdawri for the year ending on 31.3.1997 which would show that the land in question is recorded in the name of the petitioners. Therafter, it is asserted in para 26 as under:

Respondent No. 2 and for that any other respondent has no legal right over and upon the said land. The said land is a private property of the petitioners and respondent No. 2 and for that NCT of Delhi or DDA can claim right of ownership only after it has been acquired in accordance with the provisions of Land Acquisition Act. As already submitted no proceedings have ever been initiated from acquiring the land under the provisions of land Acquisition Act and that respondent No. 2 and for that matter any other person i.e. Respondents or NCT of Delhi or DDA has any right over the said land a it continues to be private property of the petitioners.

A grievance was made against Respondent No. 3 who was later directed by this Court to be deleted from the array of parties.

9. A reply was filed by the MCD on 9.5.2000 pointing out that the petitioners have willfully suppressed material facts. It was stated that the land in question was part of the colony called Mansarover Garden which had been developed by a coloniser namely M/s Bharat Builders. It was stated that the lay out plan of the colony were approved in the year 1956-57. After development of the colony, the colonizer i.e., M/s Bharat Builders handed over the land reserved for public utility services, to the Land and Building Department of the respondent MCD on 2.8.1973 for use and development of the sites for the purposes earmarked in the plan.

10. The MCD asserted in its counter affidavit that the public utility services mentioned fell in "khasra No. 1364 (Area 6.9. Bigha), 1365 (Area 8.9. Bigha), 1366 (Area 6.15 Bigha), 1367 (Area 7.14 Bigha) and 1370 (Area 5.9. Bigha) total 8.08 acres. This land vests in the MCD or in any event the MCD has full right to the use and occupation and the maintenance of the public utility services on this land. This land is a public premises as defined in the Public Premises (Eviction of Unauthorised Occupants) Act, 1971."

In para 10 of the counter affidavit, it was stated as under:

10. That the land in question has been shown as a green belt on the zonal plan/lay out plan of the area. As such, the land in question cannot be used by anybody for any purpose other than prescribed in the zonal plan; whosoever may be the owner of the land, the said land cannot be used in violation to the land use mentioned in the zonal plan.

11. It was pointed out in the counter affidavit that the petitioner had suppressed material facts and had not approached the court with clean hands. The MCD also filed an additional affidavit dated 9.9.2002 in which it was stated as under:

That after thorough search it has been revealed that the Petitioner, his other relations and their ancestors have sold 177 Bighas and 17 Biswas of land to M/s. Bharat Builders & Colonies way back in the year 1956 and have also executed all the necessary documents.

Certified copies of Sale Deeds executed by the Petitioner and Ors. are annexed herewith along with their details.

12. Copies of the sale deeds executed in favor of M/s Bharat Builders by Chhattar Singh on 6.12.1969, by Shri Shiv Charan S/o Shri Ghista Singh on 7.9.1970, by Shri Chhotey Lal on 22.10.1969, by Rattan Singh on 19.8.1970 and by Shri Ram Das on 19.8.1970 were annexed to the affidavit.

13. In reply to the affidavit dated 9.9.2002 filed by the Deputy Commissioner, MCD, the petitioner No. 3 Rajbir Singh filed a rejoinder on 4.9.2002. In this rejoinder, it was for the first time admitted by this petitioner that there was about 33 bighas of land owned by the petitioner out of which 11 bighas of land had been sold both in favor of M/s Bharat Builders and Colonizers and the remaining 22 bighas still continued to be in their possession. It was however maintained that as per the demarcation report of 29.3.1995, the land in question still belonged to the petitioners and MCD had nothing to do with it. Further, it was stated that the entries in the khasra girdawri for the period 1989 till March 1992 also indicated that the petitioners "continued to remain owner and in possession of the land in question." Likewise entries in the Jamabandi made on 13.2.1996 was also referred to. For the first time, it was conceded by the petitioner that 15 bighas and 7 biswas of land in this very khasra Nos. 1364-68 was sold to M/s Bharat Builders while retaining 22 bighas and 19 biswas of land. On 15.7.2002, the respondent MCD filed an application being Crl. M. No. 7395/2002 praying for initiating proceedings under Section 340 CrPC against the petitioners for making false statement on oath. In this application again reference was made to the sale deeds and to the fact that the entire 177 bighas and 17 bighas of land was sold by the petitioner to M/s Bharat Builders, the colonisers, who in turn gave the same to the MCD.

14. Further an application was filed on 28.4.2003 by the MCD for direction to the petitioners to specify the land earmarked for community centre by the predecessor-in-interest of the petitioners. It was pointed out in para 7 as under:

7. That in the recent demarcation carried out under the orders of the Sub Divisional magistrate, an elaborate exercise was carried out on 17.11.2002. All the corners of khasra numbers were fixed and the Layout Plan of the colony was super imposed on the revenue map. After doing this elaborate exercise, demarcation report was prepared. According to the said demarcation report, an area of 26 bighas and 4 biswas of land earmarked for Community Centre falls in khasra numbers which are claimed by the Petitioners. The balance area earmarked for the Community Centre, though falls in other khasra numbers, but the same is under encroachment of various persons. It appears that the Petitioners have unauthorizedly sold this land to the encroachers. Hence the total area of the Community centre has to be taken out of the land, which is presently in the possession of the Petitioners. Out of the total area of 35 bighas and 14 biswas earmarked for the Community Centre in the Layout Plan, 5 bighas and 19 biswas is under the water tank. The balance area of 29 bighas and 15 biswas is left for Community Centre. The Petitioners are liable to surrender this complete area out of the land in their possession, as their predecessors had earmarked this area for Community Centre. Accordingly, the balance area for the community centre admeasuring 29 bighas and 15 biswas out of the khasra numbers in dispute in the present Petition is liable to be handed over to the Respondent for developing the Community Centre.

15. The petitioners replied to this application on 24.7.2003 as well as filed an additional affidavit pursuant to the order dated 30.4.2003 passed by this Court. In this affidavit, it was again sought to be asserted that the land still remained with the petitioners. On 30.11.2003 a further affidavit was filed by the petitioners where it was again asserted that entire land had not been sold to M/s Bharat Builders.

16. Thereafter the writ petition was finally heard on 5.2.2007 and the order, the review of which is sought, was passed. This was followed by the present application in which the counsel for the petitioner and the respondents have been heard at great length spread over several days. At one stage this Court passed a detailed order on 23.3.2007 requiring the Commissioner of MCD to himself enquire into the matter and file an affidavit. This direction was issued in view of the fact that a submission was made on behalf of the MCD that the decree of the civil court was obtained by fraud and, therefore, could be avoided at any stage notwithstanding the fact that it was not challenged in a higher forum. The said submission and the direction issued is contained in para 5 of the said order which reads as under:

5. It is Mr. Phoolka's submission, on the basis of judgments of Hon'ble Supreme Court, that a judgment and decree obtained by fraud can be ignored, even in collateral proceedings. However before this Court comes to that conclusion on the basis of the verbal submissions of learned Senior counsel for the MCD, the Court would like to know whether and when MCD discovered that the judgment and decree in question was obtained by Petitioner No. 1 by fraud and whether it identified the MCD officials who connived in the bringing about a situation where such a judgment came to be passed; and how the MCD proceeded to act upon the discovery of such fraud. Mr. Phoolka says that after he was engaged to argue this case, he had written to the MCD in this regard. The Court would now like the Commissioner MCD, to himself file a detailed affidavit in this Court, not later than 23.4.2007 after examining records of the case himself and answering not only the writ petition para wise but the queries raised in this Order. The affidavit will also reply to the present applications (CM Nos. 1928 and 1929/2007) and the additional affidavit filed on 2.3.2007 by one of the petitioners. A copy of this additional affidavit will be handed over by Mr.Sharma, learned Counsel for the petitioner to Mr. Phoolka during the course of the day. The records of the case available with the MCD will be kept ready for perusal of the Court on the next date of hearing.

List on 27.4.2007.

A copy of this Order be given dusty under the signature of Court Master.

Pursuant to the said directions an affidavit has been filed by the Commissioner MCD. The petitioner has also filed a rejoinder thereto.

17. At the outset, it must be noticed that petitioners have been constantly shifting their stand on the question of ownership of the lands in question. There can be no manner of doubt that neither before the Civil Judge nor anywhere the above mentioned writ petition here, the petitioners ever mentioned that either all or substantial portion of the property in question had already been sold to M/s Bharat Builders who in turn had handed over it over to the MCD. The fact that the petitioners had already executed sale deeds was not disclosed by the petitioners till such time the MCD produced the copies of the sale deeds. Therefore, even at the time that petitioner No. 1 filed the said suit, he did it in the full knowledge of the fact that he and the other petitioners here had in fact sold the lands in question to M/s Bharat Builders through valid registered documents of sale.

18. In view of the above position, it is clear that the statement made in para 1 of the writ petition is false and false to the knowledge of the petitioners. The fact that the petitioners have admitted in the subsequent affidavits to having sold a substantial portion of the land after copies of the sale deeds were filed in this Court by the MCD only reinforces this conclusion that the petitioners were suppressing material facts before this Court. There can also be no manner of doubt that the petitioner No. 1 suppressed this material fact in the suit filed before the Sub-Judge and did so knowingly, thus playing a fraud upon that Court which led the Court to pass a patently erroneous decree that the petitioner No. 1 was the owner of the entire property. The fact that the MCD contested the suit and did not file an appeal thereafter does not change this position in view of the material facts, as noticed above, not being brought to the notice of that Court and the decree having been obtained by practicing fraud.

19. The contention of Mr. R.P. Sharma, learned Counsel for the applicant was that there was no suppression of facts because the sentence in para 1 of the petition (which has been extracted earlier in this judgment) as well as the statements made in the suit filed by the petitioner No. 1 ought to be construed as if those statements pertained only to that portion of the property which had not been sold to M/s Bharat Builders. The Court is unable to agree with the submission for more than one reason. In the first place, the assertion by Chhattar Singh both before the Civil Court in the suit filed by him and by all the petitioners in the writ petition filed here is in absolute terms and unqualified. The assertion is that the petitioners are the owners of the entire property. The wording of Para 26 of the writ petition, extracted hereinabove, betrays the weak attempt now made to wriggle out of a difficult situation. Secondly, there is not even a whisper in the petition or in the suit of any lands being sold to M/s Bharat Builders at any time. Thirdly, the affidavits filed subsequently by the petitioners are a virtual admission that M/s Bharat Builders itself was nothing but a creation of these very petitioners and in fact Shri Chhotey Lal, the father of the petitioners No. 3, 4 and 6 was himself a partner in the said firm. Fourthly, it was only when the MCD produced the copies of the sale deeds that the petitioners were compelled to admit that the land had in fact been sold to M/s Bharat Builders.

20. The judgment of the Hon'ble Supreme Court in S.P. Chengalvaraya Naidu v. Jagannath that a decree obtained by fraud would disentitle the party responsible for it to any relief, applies fully in this case. It was explained by the Supreme Court that a decree obtained by playing fraud on the Court is a nullity and that it can be challenged in a Court even in collateral proceedings. Respectfully following this dicta, this Court holds that the decree dated 5.11.1981 in Suit No. 577/1978 was obtained by Shri Chhattar Singh by practicing a fraud on the Court. It was a brazen act of Shri Chhattar Singh considering the fact that he has himself executed the sale deed dated 6.12.1969 in respect of 31 bighas and 19 biswas of land spread over these very khasra Nos. in favor of M/s Bharat Builders, copy of which sale deed has been produced before this Court. There can be no manner of doubt that the petitioner Shri Chhattar Singh has obtained the said decree by practicing fraud. He has further compounded it by suppressing this vital fact in the petition filed in this Court.

21. When this Court's attention was first drawn to this fact by Mr. Phoolka, learned Senior counsel for the MCD, this Court by its order dated 23.3.2007 had required the Commissioner, MCD to himself examine the case and inform the Court as to the date when the fraud was discovered and the corrective action taken thereafter. In the affidavit filed by the Commissioner, MCD on 25.4.2007, it has now been disclosed that the fraud was discovered some time in 2002 when after prolonged efforts, the MCD was able to obtain certified copies of the sale deeds from the office of the Sub-Registrar. It has been further informed to this Court that it had found Shri Ashok Kumar Kanoongo responsible for conniving with the petitioners and the said officer had since been suspended on 20.4.2007 and the case was referred to the Vigilance Department.

22. The point repeatedly made by Mr. Sharma, learned Counsel for the petitioners, was that the lay out development plan approved by the Central Government for the Mansarover Park area indicated that only a portion of the land was to be used and, therefore, entire land had not been sold or handed over by the Colonisers M/s Bharat Builders to the MCD. He further sought to contend that merely because the land was shown in the lay out plan, it did not mean that respondents had valid title to such land and he relied upon the judgment of Hon'ble Supreme Court in AIR 1995 SC 403 for that purpose. He also tried to contend that the community centre was actually across the road and, therefore, the land of the petitioners continues in the Green Belt. He tried to assert that the petitioner was still in possession of the said land. Finally he submitted that the decree dated 5.11.1981 of the Civil Court having been passed after content by the MCD and become final, it was not open for the MCD now to reopen the issue.

23. In the first place, it must be noticed that the petitioners do not deny that Shri Chhotey Lal, the father of the petitioner 3, 4 and 6 and the husband of petitioner No. 5. was himself a partner of M/s Bharat Builders. Shri Chhotey Lal himself appears to have executed one of the five sale deeds in favor of M/s Bharat Builders. The sale deeds covering the very lands sold to M/s Bharat Builders by the petitioners have been produced by the MCD. It is also admitted that M/s Bharat Builders has handed over to the MCD the entire 177 bighas of land way back in 1973. The lay out plan also indicates that the land in question has been earmarked for a community centre. The demarcation report which has been referred to hereinabove also confirms this position. In view of all of the above factors, it would not be open to the petitioners to resile from what has been done several years ago by M/s Bharat Builders, a firm of which the father of some of them was a partner. This Court is inclined to invoke doctrine of estoppel against the petitioners in the instant case. In Jai Narain Parasrampuria (Dead) v. Pushpa Devi Saraf , the Hon'ble Supreme Court observed that while applying this principle "The Court would be concerned with the conduct of a party for determination as to whether he can be permitted to take a different stand in a subsequent proceeding unless there exists a statutory interdict". M/s Bharat Builders, as colonizers, have held out to the MCD that they were the owners of the entire parcel of land and the MCD proceeded on that basis. The lay out plan has also been prepared on that basis.

24. It is accordingly held that it is not open to the petitioners to deny that the entire 177 bighas stands now vested in the MCD. The entries in the khasra girdawris and Revenue records cannot by themselves confer title on a party particularly when those entries do not reflect correctly either the legal position or the factual position on the ground. The decree dated 5.11.1981 which had been obtained by fraud and with connivance of the MCD officials cannot come to the aid of the petitioners at all. There can be no finality attaching to such a decree. In other words, a fraudulently obtained decree can be termed to be final only till such time the fraud is discovered.

25. This Court does not find any error whatever in the order dated 5.2.2007 dismissing the writ petition. On the other hand, this Court reiterates its conclusion for the additional reasons stated above.

26. In view of the gross abuse of the process of the law by the petitioners, this application is dismissed with exemplary costs of Rs. 25,000/- which will be paid by the petitioners to the respondent-MCD within eight weeks from today.

CM No. 1929/2007

27. In view of the dismissal of the above application, this application is also dismissed. The MCD has informed the Court that pursuant to the order dated 5.2.2007, it has already taken possession of a part of the land comprising 17 bighas and 10 biswas. It is expected that the MCD will proceed in accordance with law in getting possession of the complete area of land that had to be surrendered to it by the petitioners.