Delhi High Court
Debabrata Ghosh & Ors. vs Uoi & Ors. on 7 December, 2009
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 7th December, 2009
RFA 405 OF 1992
DEBABRATA GHOSH & ORS. ....Appellants
Through: Mr. Madan Bhatia, Sr. Advocate
with Mr. Ankit Jain, Advocate
Versus
UOI & ORS. ....Respondents
Through: Mr.Gaurav Duggal,Adv.for R-1.
Mr. Pawan Mathur, Adv. For R-2
Mr. Arun Mohan, Sr. Advocate with
Mr. Arvind Bhatt, Adv. for R-4
WITH
RFA 422 OF 1992
S.C. AHUJA ....Appellant
Through: Mr. Arun Mohan, Sr. Advocate with
Mr. Arvind Bhatt, Adv.
Versus
UOI & ORS. ....Respondents
Through : Mr. Gaurav Duggal, Adv. for R-1
Mr. Pawan Mathur, Adv. For R-2,
Mr. Madan Bhatia, Sr. Advocate
with Mr. Ankit Jain, Adv. for R-4 to
8
RFA Nos. 405/1992 & 422/1992 Page 1 of 43
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see the judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the digest? Yes
JUDGMENT
P.K.BHASIN, J:
These appeals are against the judgment and decree dated 09.05.1992 passed
by the learned Additional District Judge, Delhi in a suit for declaration and
possession filed by the appellant in RFA No.422/92 (who shall hereinafter be
referred to as „the plaintiff‟) against the appellants in RFA No.405/92 (who were
defendants no.4-8 in the suit and shall hereinafter be referred to as „the defendants
4-8‟). The trial Court has partly decreed the plaintiff‟s suit inasmuch as only the
relief of declaration was granted to him and not of decree of possession in respect
of the suit property and so feeling dissatisfied the plaintiff filed an appeal. The
defendant nos.4-8 filed their appeal against the grant of decree of declaration in
favour of the plaintiff. Since both the appeals arose out of the same judgment of
the trial Court and were heard also analogously the same are being disposed of by
this common judgment.
2. The plaintiff‟s case may, first of all, be noticed. The plaintiff Subhash
Chander Ahuja claimed to have purchased in Court auction, plot of land no. 58,
Sunlight Colony, Ring Road, New Delhi(which was stated to be a part of Khasra
Nos. 114 and 116 in Village Mohamadpur-Munirka, New Delhi and which area
these days is stated to be known as „Bhikaji Cama Place‟). The said
plot(hereinafter to be referred to as „the suit plot) belonged to one Mrs. Sushila
Ghosh, who was the mother of defendants 4-8. She had mortgaged the same with
the erstwhile Sunlight of India Insurance Company Ltd., Asaf Ali Road, Delhi
which later on was taken over by the Life Insurance Corporation of India(for short
„the LIC‟). The mortgage was created by Smt. Sushila Ghosh to secure the
payment of part of the sale consideration which she had to pay to the Sun Light
Insurance Company from whom she had purchased the same. The Mortgage Deed
was duly registered on September 14, 1953. Smt. Sushila Ghosh defaulted in
payment of the amount due to the Insurance Company. The LIC, which had in the
meanwhile taken over the Sun Light Insurance Company brought a suit for
recovery of Rs. 6053.60 on August 11, 1964 against Smt. Sushila Ghosh. The
said suit was decreed in favour of the LIC on 27/03/65 and in execution of that
decree the suit land was put to auction. The plaintiff participated in the auction and
being the highest bidder was sold the same and sale certificate dated 14th May,
1969(Ex.PW-1/1) was issued in his favour by the concerned Court. The plaintiff
had placed on record copies of the pleadings in the suit of LIC against Smt. Ghosh
as well as some record of the execution proceedings in respect of the decree passed
in that suit. The plaintiff also claimed that the possession of the suit land was
delivered to him by the Court bailiff and since then he was in possession thereof.
3. It is the case of the plaintiff that he subsequently came to know that the suit
plot alongwith other plots of land in the same area was sought to be acquired by
the Government in the year 1957 but the acquisition proceedings were challenged
by Smt. Sushila Ghosh and other landowners whose plots were also sought to be
acquired. In that litigation the acquisition proceedings were quashed by the civil
court vide common judgment dated 29th April, 1960. That decision of the Civil
Judge was upheld by the first appellate Court and also by the Circuit Bench at
Delhi of the Punjab High Court in second appeal (being RSA No.93-D/1962) vide
judgment dated 25/01/66. The Government‟s Special Leave Petition was also
dismissed by the Supreme Court on 08/11/68. The plaintiff claims that the
government still wanted to acquire those lands and so it came out with a Scheme
whereunder the landowners of Sunlight Colony whose lands were earlier sought to
be acquired, were given an option to get plots in Masjid Moth area in exchange of
their plots in Sun Light Colony on lease basis. The plaintiff on coming to know
about that Scheme approached the Delhi Administration in the year 1971 for an
alternative plot and thereafter he kept on corresponding with the Government for
some years but did not get any favourable response. He, however, did not initiate
any legal action against the Government for getting an alternative plot in Masjid
Moth area in lieu of the suit plot. It appears that while the plaintiff was simply
corresponding with the Government for allotment of alternative plot late Smt.
Sushila Ghosh succeeded in getting on 99 years lease plot no. 17(msg. 400 sq.
yds.), Masjid Moth Residential Scheme,(now known as „Siri Fort Road‟), New
Delhi vide lease deed dated 8th May,1974 upon her representing to the Government
by way of an affidavit that she was the owner of the suit plot which representation
the Government had accepted and then a „Deed of Transfer on Exchange‟ dated 8th
May, 1974 was executed between Smt. Ghosh and the Government whereunder
Smt. Ghosh surrendered all her rights, title and interest in the suit plot in favour of
the Government and it was also agreed between the parties thereto that the
Government shall quietly enter upon the suit plot. The execution of the said „Deed
of Transfer on Exchange‟ and the Lease Deed in favour of late Smt. Ghosh in
respect of plot no.17 was done simultaneously on 8th May,1974. That exchange of
Government owned plot with the free-hold suit plot was done by the Government
simply by accepting the affidavit of Smt. Ghosh that she was still the owner of the
suit plot and her signing the said 'Deed of Transfer on Exchange' without taking the
title deed in respect of the suit plot from her. The plaintiff on coming to know
about the allotment of the plot in Masjid Moth to Smt. Sushila Ghosh in exchange
of the suit land felt that his title over the suit land, which he had acquired by virtue
of the sale certificate issued in his favour by the Court, had come under cloud and
so he gave a notice 24th November,1975, Ex.PW-1/27, under Section 80 CPC to
the Government claiming that Smt. Sushila Ghosh was left with no right, title or
interest in the suit land after sale certificate had been issued in his favour by the
Court and she falsely claiming herself to be the owner of the suit plot had obtained
plot no. 17, Siri Fort Road, Masjid Moth Residential Scheme, New Delhi. In that
notice the Government was called upon to notify and acknowledge the ownership
and possession of the plaintiff in respect of the suit plot. The plaintiff had also
conveyed his willingness in that notice to accept plot no.17 in exchange of the suit
plot.
4. Smt. Sushila Ghosh had in the meantime died on 6th October, 1974 leaving
behind defendants 4-8 as her legal heirs.
5. Since the request of the plaintiff for allotment of an alternative plot as per
the aforesaid Scheme of the Government was not acceded to by the Government
and instead plot in Masjid Moth was allotted to Smt. Sushila Ghosh, he filed the
suit of which these appeals have arisen, on 26/04/77 for a decree of declaration to
the effect that he was the absolute owner of suit land. In the suit, Union of India
was impleaded as defendant no.1, Delhi Development Authority was impleaded as
defendant No.2 and Delhi Administration was impleaded as defendant no.3. Legal
heirs of the deceased Smt. Sushila Ghosh were impleaded as defendant nos. 4 to 8.
In this judgment also these defendants shall be referred to as is the reference to
them in the trial Court‟s judgment.
6. The suit was contested by the defendants. Defendants no. 1 to 3 in their
joint written statement raised a preliminary objection to the effect since the
plaintiff had not prayed for setting aside of the Deed of Transfer on Exchange
dated 08/05/74 between the Union of India and late Smt. Sushila Ghosh under
which the title of suit plot stood conveyed in favour of the Government the suit for
declaration alone was not maintainable . Other preliminary objections taken were
that the remedy of the plaintiff was against the LIC and that the judgment passed
in the suit in favour of LIC without impleadment of the Union of India was not
binding upon it. On merits, these defendants admitted that the acquisition
proceedings in respect of the suit plot were set aside in a civil suit filed by the
affected land owners. It was also admitted that the deceased Smt. Sushila Ghosh
was allotted the property in Masjid Moth in lieu of the suit land and the plaintiff
could not get the same as he had been sleeping over the matter for a long time. It
was also pleaded that the plaintiff had never informed these defendants about his
having acquired the title in respect of the suit land in Sunlight Colony. It was,
however, also claimed that after the death of Smt. Sushila Ghosh the lease-hold
rights in the property at Sri Fort Road had not yet been transferred in favour of her
legal heirs.
7. Defendants No. 4 to 8 also filed a joint written statement which was signed
and verified by someone as an Attorney of these defendants. In their written
statement certain preliminary objections were raised, one of which was that the suit
for declaration alone was not maintainable since the suit land was in the possession
of defendant no.1 and so possession of the suit plot should also have been claimed
as a consequential relief and it was further pleaded that, in fact, even the relief of
possession was not available to the plaintiff since suit plot was no more in
existence having been taken over by the Government alongwith other plots and
was being used for public purposes. Another preliminary objection taken was that
the alleged sale certificate in respect the property had been obtained fraudulently
and in collusion with the officials of the Life Insurance Corporation of India and
his father-in-law was also a senior officer there. The foreclosure suit filed by Life
Insurance Corporation of India against Smt. Sushila Ghosh without impleading
Union of India was alleged to be bad because of non-joinder of Union of India in
that suit. On merits, it was denied that any amount was payable by Smt. Sushila
Ghosh to the Life Insurance Corporation of India and it was pleaded that in the
foreclosure suit by the Life Insurance Corporation of India against Smt. Sushila
Ghosh the decree was obtained by playing fraud upon the Court in the absence of
Smt. Sushila Ghosh who was never served with any notice of that suit. It was also
pleaded that the so-called sale was a result of fraud which was also evident from
the fact that the suit plot, of which even as per the averments in the plaint the value
was Rs.55,000/-, was sold allegedly in a suit for recovery of a paltry sum of
Rs.6503/- by concealing from the Court the real value of the plot. It was denied
that she had participated in those proceedings or had filed any reply to the
application under Order 21 Rule 66 filed by LIC. It was also pleaded that the sale
certificate relied upon by the plaintiff having been obtained by way of fraud the
same was liable to be set aside, being void ab initio.
8. On the aforesaid pleadings of the parties the following issues were framed
on 17.10.78 :-
"1. Whether the plaintiff is the owner of the property in suit at
plot no. 58, Sunlight Colony, Factory Road (Ring Road),
New Delhi?
2. Whether the defendants 1 to 3 acquired any right or title in
the suit property by virtue of the Exchange Deed dated 8th
May, 1974, if so to what effect?
3. Whether the present suit is not maintainable?
4. Whether the suit has not been properly valued for the
purposes of Court Fees and jurisdiction?
5. Whether the plaintiff is not entitled to the declaration
sought for any other reason mentioned in the written
statements of defendants 1 to 3 and 4 to 8?
6. Relief."
9. It appears that because of the objection raised on behalf of the defendants
that the plaint had not been valued properly and the plaintiff should have claimed
the relief of possession also since the possession of the suit plot had been taken
over by the Government way back in the year 1957 when acquisition proceedings
were initiated, the plaintiff was allowed by this Court in revision to amend his
plaint after his amendment application had been rejected by the trial Court. By way
of amendment the plaintiff was allowed to claim the relief of possession also and
consequential amendment in the valuation of the plaint in respect of the relief of
possession was also allowed to be carried out. The plaintiff had also sought to
include an additional prayer in his plaint which was for a decree of possession in
respect of plot no.17, Sri Fort, New Delhi but that prayer was not pressed during
the hearing of the revision petition since the plaintiff had made a statement that in
case after the trial it was found that Smt. Sushila Ghosh was the owner of the suit
plot his suit could be dismissed and the alternative plot in Masjid Moth could be
given to her heirs and in case it were to be held in the suit that the plaintiff was the
owner of the suit plot no.17, Sri Fort Road, the same would be granted to him in
exchange for the suit plot. It is the case of the plaintiff that he was bound by that
statement by this Court while disposing of his revision petition vide order dated
19th November,1984.
10. Although the plaintiff had sought amendment in his plaint by claiming the
relief of possession and in the prayer para he prayed for a decree for possession
also but in the amended plaint he still maintained that he continued to be in
possession of the suit plot. Defendants 1 and 3 filed fresh written statement to the
amended plaint. It was now pleaded that the suit for possession was barred by
limitation since the possession of the suit land was taken over by the Government
on 08/06/57 and the sale certificate in respect thereof was issued to the plaintiff on
14/05/69. Defendants no. 4-8 in their written statement to the amended plaint
claimed that the relief of possession had become time barred and, in any event,
could not be given to the plaintiff since the suit plot was no more in existence as
after the acquisition of the suit plot its possession alongwith other plots, as per the
information of these defendants, had been taken over by the Government in the
year 1957 and buildings had already been raised over the acquired plots of land
including the suit land and further that sale certificate could not be issued since on
the date of the issuance thereof the suit plot did not exist, the Government having
already taken over its possession in the year 1957.
11. On July 20, 1979 the following additional issues, as issues no. 6 and 7, were
framed:-
"6. Whether the plaintiff is in possession of the suit property, if
not, to what effect?
7. Whether the suit is bad for non-joinder of Life Insurance
Corporation of India?"
12. On March 13, 1987 the following five more issues were framed
by the trial Court:-
"1. Whether any amount was payable by Smt. Sushila Ghosh to
LIC as alleged in para 7 of the plaint?
2. Whether any suit was filed by LIC against Smt. Sushila Ghosh
as alleged in para 7 of the plaint?
3. Whether property in suit was auctioned in execution as per
allegations made in para 8 of the plaint?
4. Whether the suit is within time?
5. If issue no. 3 is proved, whether sale is void as per para 8 of
written statement of defendants 4 to 8?
6. Whether plaintiff served notice u/s 80 CPC?"
13. The plaintiff examined himself in support of his case as PW-1 besides
examining two more persons. Defendants 4-8 examined only one witness who
claimed himself to be the employee of their father. Other defendants did not
examine any witness.
14. The learned Additional District Judge by a common discussion decided issue
no.1 framed on 17/10/78 and issues no. 1, 2, 3 & 5 framed on 13/03/87 in favour
of the plaintiff and held in the impugned judgment that with the issuance of the
sale certificate Ex.PW-1/1 in respect of the suit plot in favour of the plaintiff by
the concerned Court the plaintiff became its owner. Issue no.2 framed on 17/10/78
was also decided in favour of the plaintiff and the learned trial Judge came to the
conclusion that the Deed of Transfer on Exchange dated 8th May,1974 executed
between the Government and late Smt. Sushila Ghosh whereby plot no.17, Masjid
Moth, New Delhi was allotted to late Smt. Sushila Ghosjh in exchange for plot in
suit was a nullity and the defendants no.1-3 could not be said to have acquired any
right or title in the suit plot on the basis of that void Deed of Transfer on
Exchange since Smt. Sushila Ghosh herself was left with no right or interest
therein on the issuance of the sale certificate in respect thereof by the Court in
favour of the plaintiff. It was also held that since the Deed of Transfer on
Exchange was a nullity the plaintiff was not obliged to seek a decree for its
cancellation. Issue no.4 framed on 17th October,1978 regarding the objection taken
by the defendants to the valuation of the plaint for the purposes of court fees and
jurisdiction was not pressed by the defendants. All other issues, except issue no.6
framed on 20/07/79 regarding the possession of the suit plot, were also decided in
favour of the plaintiff. Regarding the decree of possession claimed by the plaintiff
the trial Court accepted the plaintiff‟s original claim that he was in possession of
the suit plot having been put into possession by the Court bailiff and rejected the
defendants‟ plea that the Government had been in its possession since the year
1957. Thus, the trial Judge was of the view that this issue was „almost redundant‟.
Accordingly, a decree of declaration only was passed vide impugned judgment
dated 9th May,1992 to the effect that the plaintiff was the owner of the suit plot.
15. The defendants 4 to 8, it appears, became apprehensive that because of this
judgment the Government might not take action against them in respect of their
property at Siri Fort Road and so they filed an appeal (being RFA.No. 405/1992).
16. The plaintiff also felt dissatisfied with the rejection of the relief of
possession to him and, therefore, he also filed an appeal (being RFA. No.422/92).
17. The Government, however, did not file any appeal and, instead, it decided to
honour the verdict of the trial Court and after the filing of the appeal by
defendants no.4-8 the Government called upon these defendants vide its letter
dated 18th December,1992 to surrender possession of property no.17, Siri Fort
Road in view of the declaration given by the trial Court in the present case that the
Deed of Transfer on Exchange dated 8th May,1974 between the Government and
late Smt. Sushila Ghosh was a nullity. Thereupon, the defendants 4-8 in their
appeal filed an application for staying the operation of the said letter during the
pendency of their appeal and this Court had accepted that prayer.
18. In these two appeals, arguments were advanced on behalf of the plaintiff
Subhash Chander Ahuja by the learned senior counsel Shri Arun Mohan and on
behalf of the defendants no.4-8, legal heirs of late Smt. Sushila Ghosh, learned
senior counsel Shri Madan Bhatia argued. Shri Gaurav Duggal, learned counsel for
the Union of India, however, remained neutral during the course of hearing of the
appeals and submitted that the Government had, in fact, already decided to honour
the final judicial verdict in respect of the controversy between the private parties
who are litigating to get property no.17, Sri Fort Road, New Delhi. Shri Pawan
Mathur, learned counsel for the Delhi Development Authority submitted that a
bare perusal of the polaint averments itself would show that this was not a case
where only a cloud had been cast upon the title of the plaintiff in respect of the suit
plot but in fact it is a case of total ouster of the plaintiff from the suit plot in
April,1974 when the possession of the suit plot and other plots in Sun Light
Colony was handed over to DDA by the CPWD for development. Mr. Mathur also
referred to a Single Judge Bench decision of this Court in "Anandi Devi & Ors. Vs
Delhi Development Authority & Ors." reported as 69 (1997) Delhi Law Times
wherein reference was made to acquisition proceedings in respect of Sun Light
Colony and quashing of the notifications by the Civil Court etc. when two plot-
holders who had failed to get allotment of alternative land in Masjid Moth area in
lieu of their plots in erstwhile Sun Light Colony had filed a writ petition.
Reference was also made in that decision that DDA had developed „Bhikaji Cama
Place‟ on the lands in Sun Light Colony, which area had been declared to be
commercial area, and in respect of which earlier acquisition proceedings had been
initiated but subsequently quashed by the Civil Court. The two writ petitioners in
that case finally got an order for allotment of the plots in Masjid Moth area.
19. From the pleadings of the parties, evidence adduced during the trial as also
from the submissions made at the Bar from both the sides during the course of
hearing of these appeals the admitted facts which have emerged are that the mother
of defendants no.4-8, late Smt. Sushila Ghosh, was the owner of the suit plot
having purchased the same in the year 1953 from the erstwhile Sunlight of India
Insurance Company Ltd., which, as noticed already, subsequently came to be taken
over by the LIC. The plaintiff had claimed that she had paid only part of the sale
consideration at the time of the execution of the sale deed in her favour and
balance was payable in two instalments and to secure the payment of those
instalments she had created a mortgage in respect of the suit plot in favour of the
said Insurance Company, the vendor. It was also the case pleaded by the plaintiff
that since late Smt. Sushila Ghosh had defaulted in re-payment of the balance sale
consideration in respect of the suit plot to the vendor, a suit for recovery was filed
against her in which a decree was passed against her. Although in their written
statement defendants no.4-8 had not admitted but had not specifically denied also
the plaintiff‟s averments in the plaint that their mother had mortgaged the suit plot
with the Sunlight of India Insurance Company Ltd. and also about the filing of the
recovery suit by the LIC and passing of the money decree in that suit against Smt.
Sushila Ghosh. Thus, the averments made in the plaint in that regard can be said to
have been admitted by these defendants. In any event, the fact that late Smt.
Sushila Ghosh had mortgaged the suit plot with the vendor Insurance Company
was specifically admitted by these defendants in para no.3 of their memo of appeal
as also during the course of arguments before this Court. It was also claimed that
their mother had redeemed the mortgage. However, as far as the redemption of the
mortgage is concerned, they did not make an attempt even to substantiate that plea.
When this Court had noticed this plea of redemption of mortgage the defendants 4-
8 were called upon on 20th January, 2004 to give the details as to how the mortgage
was redeemed but thereafter also no proof was furnished to substantiate that plea.
20. As per the case of the plaintiff he had purchased the suit plot in Court
auction held by the Court where the LIC had filed a suit for recovery of the unpaid
instalments against late Smt. Sushila Ghosh. During the execution proceedings
started by the LIC for the execution of the money decree passed in its favour in
that suit the mortgaged property i.e. the suit plot, was put to auction and was sold
to the plaintiff since he was the highest bidder and a sale certificate was issued in
his favour by the Court, copy of which is Ex.PW-1/1. None of the defendants had
claimed before the trial Court and not even before this Court that the said sale
certificate was a forged document. These defendants had though also denied the
filing of the suit against their mother by the LIC and had also taken a plea that the
entire litigation leading to the issuance of the sale certificate in respect of the suit
plot in favour of the plaintiff was a collusive litigation and sale certificate had been
obtained by the plaintiff by playing fraud. Learned senior counsel for the defendant
nos. 4 to 8 had submitted that since the sale certificate in question had been
obtained by fraud and so was void there was no need of filing either a separate suit
for getting the sale certificate declared as being void or by filing any kind of
application before the court which had issued the same and defendants could take
that plea in the present suit also. In support, judgments of the Supreme Court in
"Prem Singh vs Birbal" (2006) 5 Supreme Court Cases 353 , "Bhaurao Dagdu Paralkar vs
State of Maharashtra" (2005) 7 Supreme Court Cases 605 , "Sunder Dass vs Ram Parkash"
AIR 1977 SC 1201 and AIR 1968 SC 261 were also cited.
21. There is no doubt that the defendant could establish in the present suit itself
that the sale certificate Ex.PW-1/1 had been obtained by the plaintiff by resorting
to fraud in collusion with the LIC officials. One judgment of Patna High Court
reported as AIR 1960 Patna 182 was also cited by Mr. Bhatia, learned senior
counsel, wherein it was held that where it is alleged that certain transaction was
collusive, like the LIC‟s suit for recovery in the present case, the court should lift
the veil and look behind the same in order to see what was the real nature of the
transaction, like the sale certificate Ex.PW-1/1 in the case at hand. However, even
in that regard not even an attempt was made to establish that the sale certificate
was got issued by the plaintiff either by colluding with the LIC officials or by
playing any kind of fraud upon the Court which had issued the sale certificate
Ex.PW-1/1. There is no material brought on record by these defendants behind
which this Court could have gone by lifting the veil to find out what lay behind the
issuance of the sale certificate in respect of the suit plot in favour of the plaintiff. It
was not even suggested to the plaintiff in his cross-examination that the sale
certificate relied upon by him was a forged document. None of the defendants
no.4-8 themselves stepped into the witness box to say that their mother had neither
mortgaged the suit plot nor any recovery suit was filed against her. No reason has
been given for none of them appearing in the witness box. It was the contention on
behalf of the plaintiff that, in fact, the legal heirs of late Smt. Sushila Ghosh had
entered into some transaction with some third party in respect of plot no.17, Sri
Fort Road and so they were really not interested in protecting that property and
that was evident from the fact that they had not even signed the written statement
nor had anyone of them appeared during the trial at any stage and their appeal is
now being pursued by some other person claiming himself to be their attorney and
even in support of the appeal none of the defendants 4-8 had sworn an affidavit. In
my view also, that appears to be so. On behalf of defendants 4-8 the person who
had signed the written statement also did not appear as a witness and instead, one
person who claimed himself to be the employee of their father‟s Firm since the
year 1940 had entered into the witness-box to depose on their behalf. This
person(PW-1) though claimed that late Smt. Sushila Ghosh had not mortgaged the
suit plot but that statement is belied from the fact that, as has been noticed earlier
also, during the pendency of these appeals it was claimed by defendants 4-8 in the
appeal memorandum that the mortgage was redeemed and as also noticed already,
these defendants did not even attempt to substantiate the same despite the fact that
this Court had while noticing this plea on 20th January,2004 had asked them to
show as to how the mortgage was redeemed. No proof of redemption of the
mortgage was given. DW-1 had also deposed that Smt. Sushila Ghosh had not
initiated any legal proceedings in respect of the acquisition proceedings in respect
of the suit plot. Even this statement of DW-1 is patently a false statement since in
the written submissions filed on behalf defendants 4-8 in these appeals, reference
to which is made by this Court also in one of the proceedings in these appeals, it
has been categorically admitted that Smt. Sushila Ghosh had also filed a suit for
challenging the acquisition proceedings. Worth of the testimony of this defence
witness has been adversely commented upon by the trial Judge and we also now
feel that no reliance can be placed on the word of this witness. He also claimed that
no recovery suit was filed against Smt. Ghosh but merely the ipse dixit of this kind
of unreliable witness would not make that fact as established. If the defendants 4-8
actually wanted to establish that no suit was filed or if at all it was filed the same
was a collusive suit and fraud had been played upon the Court they could have
taken appropriate steps to get the decree passed in the suit of LIC set aside long
back since the plaintiff had filed the suit bringing to their notice all the relevant
facts and by placing on record copies of the pleadings of that suit including the
written statement of Smt. Ghosh. There is no doubt that during the evidence when
those documents were allowed to be exhibited by the trial Judge it was clarified
that the objection raised by the counsel for the defendants 4-8 regarding their
exhibition because of them being photostat copies of the certified copies of the
pleadings in the money suit filed by the LIC against late Smt. Sushila Ghosh shall
be considered at the time of final hearing and the same was considered also and
rejected. Although in the grounds of appeal of defendants 4-8 that decision of the
trial Court was also challenged but nothing was contended in that regard during the
course of arguments in these appeals by their senior counsel. In any case, those
pleadings had nothing to do with the case of the plaintiff since his case was based
only on the sale certificate Ex. PW-1/1, original of which he had placed on record
in another case filed by him against the defendants and was summoned in the
present suit during the evidence and its certified copy which is Ex.PW-1/1 was
exhibited. With the issuance of the sale certificate in his favour by the Court it has
to be presumed that a suit for recovery of money against late Smt. Sushila Ghosh
must have been filed by the LIC and decreed also in its favour and further that in
execution of that decree the suit plot must have been put to auction and that too
after compliance of all formalities under Order XX1 of the Code of Civil
Procedure in that regard. Thus, in the opinion of this Court, genuineness of the
sale certificate Ex.PW-1/1 cannot be doubted at all. It may be noticed here that, in
fact, even Sh. Madan Bhatia, learned senior counsel for the private defendants did
not argue that Ex.PW-1/1 was a forged document. He was perhaps handicapped
in this regard inasmuch as during the trial no attempt was made by these
defendants to show that the said sale certificate was not a genuine document and so
during these appeals there was little scope for getting a finding from this Court that
this document is not genuine.
22. The plaintiff claimed, relying upon the judgments of the Supreme Court in
"Hans Raj Banga vs Ram Chander Aggarwal", AIR 2005 SC 2384, "Amba Bai and Others v.
Gopal and Others", (2001) 5 SCC 570; "Nellikkottu Kolleriyil Madhavi v. Kavakkalathil
Kalikutty and Others", (1997) 1 SCC 749; "P. Udayani Devi v. V.V. Rajeshwara Prasad Rao
and Another", (1995) 3 SCC 252; "Ghanshyamdas and another v. Om Prakash and
Another"r, 1993 Supp (3) SCC 368 and "Municipal Corporation of Delhi v. Pramod Kumar
Gupta", (1991) 1 SCC 633, that he had become the absolute owner of the suit plot
after the confirmation of the sale in respect of the suit plot by the executing Court
and issuance of the sale certificate by the Court in his favour. There is no doubt
that in these cases it was held by the Supreme Court that after sale of any property
is confirmed under Rule 92, the auction purchaser in Court auction becomes
absolute owner of the property put to auction by force of law and the judgment-
debtor gets divested of all right and interest in the auctioned property and further
that unless the sale certificate is set aside or declared to be a nullity the same has
legal validity and force. If this is the legal effect of a sale certificate issued by a
competent court in favour of a successful bidder in a court auction then why did
the plaintiff have to initiate this legal battle seeking a declaration from the Court
that he was the owner of the suit plot? This is the question which now needs to be
considered.
23. As already noticed, the plaintiff had also claimed in the plaint that after
having obtained the sale certificate from the concerned Court in respect of the suit
plot he had come to know that many years back the suit plot was sought to be
acquired by the Government and the acquisition proceedings in respect of the suit
plot as well as other plots which were also sought to be acquired on being
challenged in Court were quashed. That, in fact, is the common case of all the
parties. The Government, however, even after the acquisition proceedings had
been quashed, had offered alternative plots to the concerned plot owners whose
plots in Sun Light Colony were earlier sought to be acquired somewhere in Masjid
Moth. On coming to know that the Government was offering alternative plots to
the owners of lands in Sun Light Colony (now known as „Bhikaji Cama Place‟) the
plaintiff had approached the Delhi Administration in the year 1971 for an
alternative plot. He claims that he had approached the Central Government also but
that fact was disputed by the Union of India. The plaintiff, however, did not get
alternative plot though he had been regularly corresponding with defendants 1-3.
His failure to get an alternative plot, however, did not bother the plaintiff. What
bothered him was the information which he got was that when he was
corresponding with the Government departments for alternative plot Late Smt.
Sushila Ghosh had also approached the Government for allotment of an alternative
plot claiming herself to be the owner of suit plot and simply on the basis of her
affidavit that she had the subsisting right and title in the suit plot and the
Government ignoring his claim allotted her plot No.17, Masjid Moth Residential
Scheme on 99 years lease in exchange of the suit plot.
24. The plaintiff felt that because of the Government having recognized Smt.
Sushila Ghosh to be the owner of the suit plot in the year 1974 by allotting her the
plot in Masjid Moth in exchange for the suit plot of which he claimed to be the
owner by virtue of the sale certificate Ex.PW-1/1 his title in respect of the suit plot
had come under cloud. That development gave him the cause of action to seek a
declaration from the Court that he was the owner of the suit plot by virtue of the
sale certificate issued by a competent Court. Learned senior counsel for
defendants 4 to 8 and learned counsel for other defendants also did not dispute the
fact that if the plaintiff was correct in what he had asserted in his plaint regarding
his title based on the sale certificate then he had got the cause of action to seek a
declaration from the Court regarding the title to the suit plot. Anybody else in his
place would have also felt the necessity of seeking a declaration of title from the
competent Court under those circumstances. However, Mr. Madan Bhatia very
seriously contended that in the facts and circumstances of the case the plaintiff was
not entitled to get the declaration sought by the plaintiff and had been wrongly
granted that relief by the trial Court.
25. The first reason put forth by Shri Madan Bhatia for refusing the relief of
declaration of title in respect of the suit plot to the plaintiff was that the suit when
it was instituted initially was not maintainable since it was filed only for a decree
of declaration of title alone in respect of the suit plot even though the plaintiff was
not in possession of the suit plot and despite that he had not claimed the relief of
possession. It was argued that the plaintiff had made a fictitious cause of action
initially for filing the suit for declaration only by falsely claiming that he was in
possession of the suit plot which was not permissible. Mr. Bhatia also cited one
judgment of the Supreme Court reported as AIR 1978 SC 1094 and one decision of
Calcutta High Court AIR 1923 Calcutta 570 in support of this argument.
26. In view of this objection taken by the defendants in their written statement
the trial Court had initially framed issue no.3 on 17th October, 1978 as to "Whether
the present suit is not maintainable?" As has been noticed already, the plaintiff had
initially filed the suit only for a decree of declaration of title in respect of the suit
plot claiming himself to have become its owner by virtue of the sale certificate Ex.
PW-1/1. In the plaint he had claimed that he was in possession of the suit plot
from the date it was handed over to him by the Court bailiff after issuance of the
sale certificate in its favour. The defendant nos. 4 to 8 had taken a stand in their
written statement that since it was the defendant no.1, Union of India, which was in
actual physical possession of the suit plot after having taken it over along with
other plots while initiating acquisition proceedings, suit for declaration simpliciter
was not maintainable. In view of that objection issue no.3 was framed on 17th
October, 1978 regarding the maintainability of the suit. One option was to stick to
his stand that he being in possession of the suit land was not required to sue for
possession, thereby taking the risk of failing in the suit in the event of the Court not
accepting his case that he was in possession of the suit plot on the date of the
institution of the suit and not the Government. Other option was to add the relief of
possession also in the plaint and to pay court fees on the value of the suit property,
without admitting that the Government was in possession of the suit plot, so that
the controversy centering around the possession of the suit plot could be decided
once for all between the parties and he could get possession in the event of it being
held by the Court that the Government was in possession of the suit land. The
plaintiff felt the second option to be more proper to be availed of and accordingly
by way of abundant caution and as an alternative plea, which a plaintiff can always
raise, he had sought amendment in the plaint by including therein the relief of
possession also in respect of the suit plot to avoid taking the risk of failing in his
suit eventually if his plea of being in possession were not to be accepted by the
Court. In one case reported as AIR 1993 SC 957 "Vinay Krishna vs Keshav Chandra and
anr.", the Supreme Court had held, under almost similar circumstances, that if the
plaintiff in a suit for declaration of title does not claim the relief of possession
when the defendant also claims to be in possession of the suit property then the
plaintiffs takes a risk and so he should amend the plaint. Patna High Court has also
taken the same view in "Siya Ram Das vs State of Bihar", AIR 1979 Patna 98. In that
case the trial Court, like in the present case, had rejected the amendment
application of the plaintiff in a suit for declaration of title alone and when the
matter was taken to the High Court this is what was observed:-
"16.................it appears from the plaint that the plaintiffs claimed to be in
possession. The defendants, on the other hand, as appears from the written
statement, denied that and claimed to be in possession on their own account.
Obviously the real dispute between the parties centered round possession. If the
court were to adjudicate upon the question of possession, it is only fair that the
party which succeeds in establishing its possession should get the benefit of a
decree in that respect as well................................"
After observing so, the amendment application filed by the plaintiff seeking
the relief of possession also in addition to the already claimed relief of declaration
of title was allowed. Therefore, after the amendment of the plaint in the present
case, the objection of the defendants regarding the non-maintainability of the suit
without the relief of possession in view of the bar created under the proviso to
Section 34 of the Specific Relief Act did not survive and so issue no.3 framed on
17th October, 1978 was rightly decided by the learned trial judge in favour of the
plaintiff by not accepting the objection of the defendants that the suit was not
maintainable because of the plaintiff having initially omitted to claim the relief of
possession. No decision was brought to the notice of the Court to the effect that
even after amendment of the plaint by a plaintiff by claiming the relief of
possession also in a suit for declaration of title alone in respect some immovable
the objection of bar under Section 34 would still survive. Therefore, the findings
of the learned trial Court on issue no.3 framed on 17 th October,1978 holding the
suit to be maintainable are affirmed by this Court.
27. The defendants 1-3 and 4-8 had taken some other grounds also in their
respective written statements for not passing a decree of declaration of title in
respect of the suit plot in favour of the plaintiff and in view of those grounds the
trial Court had framed issue no.5 on 17th October, 1978 as to "Whether the plaintiff is
not entitled to the declaration sought for any other reason mentioned in the written statement of
defendants 1 to 3 and 4 to 8?". Now, as far as the objections raised by defendants 1 to
3 are concerned the same become meaningless since they have not challenged the
judgment of the learned trial Judge on any point and in fact, as noticed already, the
Government has already accepted the position that late Smt. Sushila Ghosh had
obtained the plot in Masjid Moth by misrepresenting to it that she was the owner of
the suit plot and now her heirs have been called upon to deliver back the
possession that property in Masjid Moth(Siri Fort Road) to the Government.
However, those objections are now being pressed into service by defendants 4 to 8
through their learned counsel who had submitted that since the ownership and
interest of the heirs of late Smt. Sushila Ghosh in respect of the property no.17, Siri
Fort Road has been put in jeopardy because of the declaration granted in favour of
the plaintiff by the trial Court that he was the owner of the suit property
they(defendants 4-8) have now to press into action their entire armoury of legal
weapons and also to use the legal weapons available in the armoury of their one
time partner in this fierce battle i.e. the Government, which has already announced
cease-fire with the plaintiff. The plaintiff‟s senior counsel, on the other hand,
showed his full preparedness to counter any kind of legal weapon which the
defendants 4-8 might use against him.
28. Mr. Madan Bhatia submitted that it would be a futile decree to be passed
declaring the plaintiff to be the owner of the suit plot since the same does not exist
today and in fact it had ceased to be in existence even before the filing of this suit
because of the constructions raised thereupon by the DDA, defendant no.3. In
support of this argument that in the absence of the existence of the suit plot the
declaration of title sought for would be futile Mr. Bhatia cited one judgment of the
Supreme Court in "Guru Datta Sharma vs State of Bihar", AIR 1961 SC 1684 and some
judgments of different High Courts which are reported as AIR 1957 Allahabad 719,
AIR 1955 Madhya Bharat 94, , AIR 1943 Patna 34, AIR 1927 Patna 286, AIR 1940 Lahore
1, AIR 1949 P.C. 53,AIR 1925 Oudh 598. However, in my view the relief of
declaration of title in respect of some immovable property sought for by a plaintiff
cannot be said to be dependent upon whether the plaintiff would also be in a
position to get the decree of possession or not. The requirement of law is that when
a plaintiff seeks a decree of declaration of title to some immovable property, which
is being refuted by the defendant, he must claim relief of possession also if he is
not in possession of the property in suit. If the Court finds after the trial that for
some reason possession of the property in suit cannot be granted even after
accepting the claim of the plaintiff that he was the owner thereof the Court can
always mould the relief appropriately and even if that is also not done for some
reason, the relief of declaration of title can still be granted. This view of mine is
fortified by a judgment of Madras High Court in "O.S.Venkataraman vs
R.V.M.K.Prasad", (2007) 6 MLJ 1018 wherein also facts were quite similar to the
facts of the present case. The plaintiff there had also sought only a decree of
declaration of title initially but subsequently possession of the property in dispute
was also claimed by amending the plaint since it was claimed that the defendant
had trespassed over some portion of the suit property after the filing of the suit.
The trial Court after examining the evidence adduced came to the conclusion that
the plaintiff had established his ownership and accordingly granted him a decree of
declaration of title but relief of possession was declined on the ground that it had
become time barred. The judgment of the trial Court was affirmed in first appeal
also but for denying the relief of possession different reason was given by the first
appellate Court which was to the effect that the plaintiff had failed to establish as
to which portion of the suit land had been encroached upon by the defendant and
so the property was not identifiable. That decision of the first appellate Court was
affirmed by the High Court also.
29. Now, as far as the facts of the present suit are concerned, there is in any case
no evidence adduced by any of the defendants to substantiate the plea that the suit
property does not exist. Learned senior counsel drew my attention to the brief
written synopsis dated 9th February,2009 submitted on behalf of the plaintiff during
the course of arguments in these appeals wherein it has been admitted that on a part
of the suit plot Government had allowed one petrol pump to function. Mr. Arun
Mohan did not not dispute that factual position but submitted that that does not
show that the suit plot does not exist at all. I am in agreement with this submission
of Mr. Arun Mohan. Now, as far as the relief of decree for possession claimed by
the plaintiff is concerned, that aspect would be independently examined and
decided while dealing with the issue no.6 framed by the trial on 20 th July, 1979 and
which arose because of the pleas regarding actual possession taken by the parties
in their respective pleadings.
30. It was then argued by Shri Madan Bhatia that a bare reading of the plaint
would show that this was not a suit really for getting a decree of declaration to the
effect that the plaintiff was the owner of the suit plot but, in fact, in the garb of that
prayer he really wanted a declaration that late Smt. Sushila Ghosh had obtained
plot no. 17, Siri Fort Road, by mis-representing to the Government that in the year
1974 she was the owner of the suit plot while, in fact, the plaintiff should have
been allotted property no. 17, Siri Fort Road in lieu of the suit plot. And that relief,
contended Mr. Bhatia, could not have been sought by the plaintiff in this suit
without making a specific prayer for setting aside/cancellation of the Deed of
Transfer on Exchange dated 8th May,1974 and for a decree of possession in respect
of the property at Siri Fort Road and that prayer could not have been made in this
suit since the Government had framed the Scheme for allotment of alternative plots
in the year 1971 and it is the plaintiff‟s own case that he had come to know about
that Scheme in the year 1971 itself and during that year itself he had approached
the Government for allotment of an alternative plot but had not succeeded in
getting alternative plot. So, if at all he wanted alternative plot under the Scheme of
1971 he could have filed the suit within three years which he did not do and
instead filed the present suit in the year 1977 by which time the period of limitation
for the suit to get alternative plot had already expired and so in order to bye-pass
the hurdle of limitation he had filed this suit wherein he indirectly made averments
in respect of his right to get alternative plot simply by claiming a decree of
declaration of his title in respect of the suit plot. In these circumstances, Mr. Bhatia
contended, the plaintiff should not have been given the decree of declaration in
respect of the title of suit plot in his favour since he really never wanted that
declaration what he wanted had already become time barred. This was the
objection which actually was raised by the Government in its written statement but
was not accepted by the trial Court and, as noticed already, the Government was
not aggrieved and the private defendants have now sought to utilize this argument.
31. There is no doubt that in the plaint the plaintiff had pleaded that late Smt.
Sushila Ghosh had falsely claimed herself to be the owner of the suit plot in her
affidavit dated 24th April, 1974 submitted by her with the government for claiming
alternative plot in Masjid Moth area and the government had also accepted her
ownership merely on the basis of that affidavit and further that Smt. Sushila Ghosh
had fraudulently concealed the fact that w.e.f. 17 th September, 1968, when the sale
of the suit plot in the name of the plaintiff was confirmed by the Court, he had
become the absolute owner thereof and she had also fraudulently got the allotment
of a plot in Masjid Moth in her name in exchange of the suit plot and also that he
himself had also been trying to get some plot allotted in his name in Masjid Moth
in lieu of the suit plot under the Scheme floated by the Government in the year
1971. However, from these averments in the plaint it cannot be said that the real
relief which the plaintiff wanted from the Court in the present suit was a
declaration that the Deed of Transfer on Exchange dated 8 th May, 1974 executed
between late Smt. Sushila Ghosh and the Government was a nullity and void ab-
initio as also the relief of possession of plot no. 17, Masjid Moth in lieu of the suit
plot. As noticed already, it has been the case of the plaintiff that after issuance of
the sale certificate in the name of the plaintiff in respect of the suit plot he had
come to know that the suit plot was at one time sought to be acquired by the
Government but subsequently acquisition proceedings were quashed by a Civil
Court but even then the Government had offered to allot alternative plots in Masjid
Moth Residential Scheme to the plot holders whose plots were sought to be
acquired. The plaintiff had also approached the Government for allotment of an
alternative plot in exchange of the suit plot. However, despite the fact that his
request for alternative plot was not acceded to by the Government for about three
years he had not initiated any legal proceedings against the Government to claim
alternative plot as a matter of right. But when he came to know that late Smt.
Sushila Ghosh had also approached the government for allotting her a plot in
Masjid Moth area by claiming herself to be the owner of the suit plot and the
Government had allotted her one plot in Masjid Moth accepting her affidavit
wherein she had claimed herself to be the owner of the suit plot he felt that his title
in respect of the suit plot had come under cloud. Only that cloud he wanted to get
removed and that is evident even from the notice dated 24th November,1975,
Ex.PW-1/27, which he had served upon the Government, wherein he had simply
called upon the Government to simply acknowledge his ownership and possession
of the suit plot and had put it on notice that in case that was not done he would be
getting his title cleared through the Court by getting a declaration that he was the
actual owner of the suit plot. And when he actually filed this suit he had sought for
the relief of declaration of his title only in respect of the suit plot. The facts
pleaded by him in the plaint in respect of the transaction between late Smt. Sushila
Ghosh and the Government whereby the Government had allotted plot no. 17,
Masjid Moth to her in lieu of the suit plot were pleaded by the plaintiff only for
the purpose of showing that that transaction had thrown a cloud over his title in
respect of the suit plot and those facts had given him the cause of action for filing
this suit. He was not obliged to seek cancellation of the Deed of Transfer on
Exchange dated 8th May, 1974 since he was not a party to that transaction nor
could he be legally bound by that document. Nor could the Government acquire
any right in the suit plot on the basis of that document since Smt. Sushila Ghosh
herself by that time lost her title in respect of the suit plot by force of law because
of that plot having been sold in Court auction to the plaintiff. So, the learned trial
has rightly concluded while deciding issue no.2 framed on 17 th October,1978 that
under the so-called Deed of Transfer on Exchange dated 8th May,1974 the
Government did not acquire any interest in the suit plot. In such a situation the
legal maxim nemo dat qui non habet(no person can convey a better title other than
what he has) squarely applied. The plaintiff was affected by that document only to
the extent that his own title in respect of the suit plot had come under cloud
because of the Government being a party to that document and that cloud could be
cleared simply by a decree of declaration from a competent Court that the plaintiff
was the absolute owner of the suit plot by virtue of the sale certificate Ex.PW-1/1.
The plaintiff did not claim that he was entitled to get plot no. 17, Masjid Moth nor
it can be said that that intention could be inferred from any averment in the plaint.
No doubt, after filing this suit he appears to have changed his mind and decided to
claim property no. 17, Masjid Moth by filing a separate suit for that relief.
However, from the filing of a separate suit for that relief it cannot be said that in
the present suit also he had wanted the decree for possession of the property at Siri
Fort Road from defendants 4 to 8 and so for that reason he should not be given the
decree of declaration that by virtue of the sale certificate Ex.PW-1/1 he had
become absolute owner of the suit plot. Now, whether the relief in that regard has
become time barred and whether he gets that property or not in the subsequently
instituted suit is not for this Court to examine and decide in this suit.
32. Having dealt with submissions of the learned senior counsel for defendants
4-8 which arose out of the facts pleaded and objections raised in the pleadings and
having rejected all of them I now proceed to consider the submissions made by
Shri Madan Bhatia for which there was no foundation in the pleadings. Learned
senior counsel had also submitted that during the pendency of the suit plaintiff had
served upon defendants 1 to 3 another notice dated 1st June, 1984 under Section 80
CPC read with Section 53-B of the Delhi Development Act once again claiming
that by virtue of the sale certificate, Ex.PW-1/1, he had become the owner of the
suit plot. Reference was also made to the pendency of the present suit as also to the
plea taken in this suit by the Government that it was in possession of the suit plot.
The Government was put to notice that the plaintiff shall be filing another suit for
injunction or possession of plot no.17, Siri Fort Road which according to him had
been fraudulently got allotted by late Smt. Sushila Ghosh claiming herself to be the
owner of the suit plot. Thereafter the plaintiff filed another suit in this Court on
01/07/86 against these very defendants for declaration and injunction. In that suit
(being suit no.2332/86) the plaintiff while admitting that the Government was in
possession of the suit plot once again asserted his right in respect of suit plot
no.58, Sun Light Colony and had also prayed for a direction to the Government to
give back its possession and also in respect of plot no.17, Sri Fort Road and a
prayer for a decree of possession of that plot was also made in lieu of the suit plot
no. 58 after paying court fees on the value of that property at Sri Fort Road which
was fixed at ten lacs of rupees. Mr. Bhatia submitted that the filing of a fresh suit
for declaration in respect of both the plots and possession of plot no.17 during the
pendency of the present suit itself is now sufficient to set aside the impugned
judgment of the trial court by allowing the appeal filed by the defendant nos. 4 to 8
and dismissing the appeal filed by the plaintiff since the Court is not expected to
give futile declarations.
33. Another point which was highlighted by Shri Madan Bhatia is that the
defendants 4-8 had come to know that the plaintiff had applied for allotment of a
flat and had got it allotted also in Punjabi Bagh in the year 1973 by one Co-
operative Society by the name of The Adarsh Bhawan Co-operative House
Building Society Ltd. representing to the Society that he did not own any property
in Delhi which shows that the case of the plaintiff in this suit that he had become
the owner of the suit plot was false. Not only that, the fact that the plaintiff is a
person who has been claiming that late Smt. Ghosh had got the plot in Masjid
Moth fraudulently, himself has clearly indulged into falsehood disentitles him to
the discretionary relief of declaration for this reason also. It was also submitted that
the plaintiff is really interested in getting the opinion of the Court and that too from
different Courts by filing separate suits but Courts are not meant to give opinions
in such frivolous litigation. In this regard also some judgments were cited which
are reported as AIR 2005 SC 3330, 1995 SCC(Crl.) 239, 1993(6) 331, AIR 1976 SC 888 ,
AIR 1980 Delhi 103 , AIR 1953 Saurashtra 21 and AIR 1941 Federal Court 5. Mr.
Bhatia also argued that even though before the trial Court these points were not
urged but this Court also while deciding these appeals can and must take notice of
these facts to do full justice between the parties. In support of the submission that
the Courts, including appellate Courts, are bound to take notice of the aforesaid
material facts/developments reliance was also placed on a decision of the Supreme
Court reported in AIR 1975 SC 1409.
34. Mr. Arun Mohan, learned senior counsel for the plaintiff, did not dispute the
proposition that the Court, including the appellate Court, should take note of
subsequent developments and to mould the relief appropriately but it was also
contended that merely on the basis of oral submissions in that regard made by the
counsel for the defendants no decision can be taken by this Court.
35. No doubt, the Court, including the appellate court, must take note of events
happening during the pendency of a suit and mould the relief taking into
consideration subsequent happenings in order to do complete justice. However, in
"Om Prakash Gupta v. Ranbir B. Goyal", AIR 2002 SC 665, the Supreme Court was of
the view that the party relying on subsequent events should first bring on record
the subsequent developments through proper route by having resort to amendment
of pleadings. These are the views expressed by the Supreme Court:-
"12. Such subsequent event may be one purely of law or founded on facts. In
the former case, the Court take judicial notice of the event and before acting
thereon put the parties on the notice of how the change in law is going to affect
the rights and obligations of the parties and modify or mould the course of
litigation or the relief so as to bring it in conformity with the law. In the latter
case, the party relying on the subsequent event, which consists of facts not
beyond pale of controversy either as to their existence or in their impact, is
expected to have resort to amendment of pleadings under Order 6 Rule 17 of the
CPC. Such subsequent event the Court may permit being introduced into the
pleadings by way of amendment as it would be necessary to do so for the
purpose of determining real questions in controversy between the
parties..........................
13...........No doubt, Courts „can‟ and sometimes „must‟ take notice of subsequent
events..........In the case at hand, the defendant-appellant has simply stated the
factum of proceedings initiated by HUDA against the plaintiff-respondent in an
affidavit very casually filed by him. He has not even made a prayer to the Court
to take notice of such subsequent event and mould the relief accordingly, or to
deny the relief to the plaintiff-respondent as allowed to him by the judgment
under appeal, much less sought for an amendment of the pleadings. The
subsequent event urged by the defendant-appellant is basically a factual event
and cannot be taken cognizance of unless brought to the notice of the Court in
accordance with established rules of procedure which if done would have
afforded the plaintiff-respondent an opportunity of meeting the case now sought
to be set up by the appellant. We do not think this Court would be justified in
taking notice of a fact sought to be projected by the appellant in a very cavalier
manner.........."(emphasis supplied)
In the present case also, the defendants have not sought any amendment in
their written statement for considering the development of filing of a fresh suit by
the plaintiff and its impact of the present lis. They did not take this plea even
before the trial Court. So, in my view, based on the oral submissions only, made
by the learned senior counsel for defendants no. 4 to 8 before this court to take note
of the said subsequent development, no decision about the fate of the present suit
can be taken and that is the view of this Court despite the fact that during the
course of arguments the filing of another suit by the plaintiff during the pendency
of the present suit was not denied by Shri Arun Mohan, learned senior counsel for
the plaintiff. If the defendants had got their written statement amended the plaintiff
would have got a chance to take a stand in writing regarding the impact of filing of
the fresh suit on the present suit and then the Court would have framed an
appropriate issue arising out of those pleas and then a decision would have been
taken but not otherwise. It was also submitted that in any event filing of a fresh suit
cannot have any impact on the previously instituted suit nor is there any law
prescribing any consequences of filing a second suit during the pendency of the
previously instituted suit.
36. As far as the plea raised that the plaintiff had himself represented to some
Society, for getting some flat, that he did not own any property in Delhi while in
this suit he is claiming to the contrary which shows that he had obtained flat in
Punjabi Bagh by misrepresentation is concerned the defendants 4-8 can always
seek cancellation of that allotment by bringing to the notice of the concerned
Society all these facts and get his allotment cancelled if that course of action is
available to him in law. In the present proceedings this development also, like the
other one of the plaintiff having filed a fresh suit, cannot be gone into since as far
as the prayer made by the plaintiff in this suit for declaring him as the owner of the
suit plot based on duly issued sale certificate Ex.PW-1/A by a competent court is
concerned the same is to be decided only on the basis of facts averred by the
parties in their respective pleadings and the evidence adduced in respect of the title
of the suit plot and not on the basis of any extraneous material which is not a part
of the pleadings.
37. Thus, the position which emerges from the discussion made so far is that late
Smt. Sushila Ghosh was the owner of the suit plot and the same was sold in Court
auction to the plaintiff being the highest bidder and sale certificate Ex.PW-1/1 was
issued in his favour. With the issuance of that sale certificate in favour of the
plaintiff the ownership of the suit plot came to be vested in the plaintiff and late
Smt. Sushila Ghosh stood divested of all her right and interest therein. However,
because of her representing to the Government in the year 1974 that she had
subsisting right and interest in the suit plot and the government allotting her plot
no.17, Masjid Moth Residential Scheme on lease for 99 years in consideration of
her surrendering her right and interest in the suit plot in favour of the Government
the plaintiff‟s title in respect of the suit plot which he had acquired under the sale
certificate Ex.PW-1/1 came under cloud and he became entitled to have cleared
from Court. The learned trial Court has thus rightly removed the cloud over the
title of the plaintiff in respect of the suit plot and this Court has no hesitation in
affirming the findings of the learned trial Judge on issues no.1,2 and 5 which were
in favour of the plaintiff and it is held that the decree of declaration granted by the
trial Court in favour of the plaintiff declaring him to be the lawful owner of the suit
plot by virtue of the sale certificate Ex.PW-1/1 cannot be set aside for any reason.
38. Now comes the question of possession of the suit plot. The plaintiff, as
noticed already, had filed the suit initially only for getting a declaration that he had
become the owner of the suit plot having purchased the same in Court auction. At
that time he had specifically pleaded in his plaint that physical possession of the
suit plot was also handed over to him by the Court bailiff. The defendants 4-8, who
only were the real contesting parties because their title in respect of their property
at Siri Fort Road was at stake, had refuted that claim of the plaintiff and it was
pleaded in their written statement that the possession of the suit plot was with the
Government right from the year 1957 when acquisition proceedings were initiated.
In view of the denial of that claim of the plaintiff he had, as noticed already,
amended his plaint as an abundant caution and had claimed the relief of possession
also. That prayer was in fact in the nature of a relief claimed in the alternative in
the event of the Court not accepting the plaintiff‟s claim that he was in possession
of the suit plot. That, the amendment was only by way of abundant caution and
claimed only as an alternative relief is evident also from the fact that even in the
body of the amended plaint the plaintiff maintained his stand that he was in
possession of the suit plot. That stand was reiterated in para nos. 8 and 25 of the
amended plaint dated 06-12-84 and the plaintiff asked for "decree for declaration
and possession" in respect of the suit plot. In the written statement to the amended
plaint the Government also categorically took the plea that it had taken over the
possession of the suit plot way back in the year 1957.
39. Since the question of possession became a disputed question of fact between
the parties the trial Court had framed a specific issue in that regard. On this aspect I
find it quite surprising that the defendants 4-8 had been trying to ride on the
shoulders of the Government during the trial of the suit but unfortunately the
Government had not offered its shoulders to defendants 4-8 to ride on. That is
evident from the fact that the Government after taking the plea in its written
statement that it was in possession of the suit plot since 1957 and never pursued
that plea thereafter. As noticed already, no evidence was adduced by the
Government at all during the trial. So, it becomes clear from the absence of
evidence from the side of the Government that it does not stand established that it
was in possession of the suit land on the date of confirmation of the sale and
issuance of the sale certificate in the name of the plaintiff by the Court.The
plaintiff‟s stand has been that the possession of the suit plot was never taken over
by the Government while initiating acquisition proceedings. In this regard he has
placed reliance on the judgment of the Civil Court in the suits filed by late Smt.
Sushila Ghosh and other persons against the Government for the quashing of the
acquisition proceedings, copy of which judgment dated 29 th April, 1960 was
produced during the course of arguments by the learned senior counsel for the
plaintiff for the perusal of this Court. Shri Madan Bhatia, learned senior counsel
representing the legal heirs of late Smt. Sushila Ghosh, very fairly did not dispute
these facts nor did he question the genuineness of the copy of the judgment of the
Civil Judge which was shown to the Court during the course of arguments by the
learned senior counsel for the plaintiff. A perusal of that judgment showed that
while issuing notification dated 8th March, 1957 under Section 4 read with Section
17(1)(4) of the Land Acquisition Act,1894 the Land Acquisition Collector had also
sought to take the possession of the lands intended to be acquired immediately and
another notification dated 8th March,1957 was issued under Section 6 also. In
those suits the Government had taken the stand that possession of the plots
intended to be acquired was taken over by it on 08/06/57 and then handed over to
CPWD. The plaintiffs of those suits had refuted that stand and had claimed that
they were in possession of their plots. The Court did not accept the plea of the
Government and held that possession of the plots was still with the land-owners,
which included late Smt. Sushila Ghosh also, and while quashing the two
notifications, the Government was also restrained from interfering in the
possession of the landowners. Thus, it becomes clear that on the date when the suit
plot was purchased by the plaintiff in Court auction late Smt. Sushila Ghosh was
its owner as well as in its possession and in view of the said decision of the Civil
Court, which had attained finality after the Government had failed to get it set
aside right upto the Supreme Court, the plea of the Government and the legal heirs
of late Smt. Sushila Ghosh that possession of the suit plot was taken over by the
Government in the year 1957 cannot be entertained at all. It was in fact highly
unfair on the part of the defendants and the Government in particular to have taken
such a false stand of it being in possession of the suit plot from 1957 onwards. As
far as the legal heirs of late Smt. Sushila Ghosh are concerned they also could not
have taken the stand in the present suit that the Government had taken over the
possession in the year 1957 since their mother had herself categorically taken the
plea in that suit against the Government that possession of the suit plot was with
her and that plea was accepted also by the Court. It, however, appears that
subsequently these defendants must have been advised, and rightly so, to give up
that stand which they did and that is evident from the fact that in their written
submissions dated 28th May, 2002 filed in their appeal they claimed that their
mother after redemption of the mortgage had continued to be in possession of the
suit plot., which plea, as noticed already, could not be substantiated by them.
40. Now comes the question as to who out of the parties to this suit was in actual
physical possession of the suit plot on the date of the institution of this suit. The
plaintiff had claimed to be in possession of the suit plot having been put into
possession thereof by the Court bailiff after issuance of sale certificate Ex.PW-1/1
in his favour by the Court. These allegations had been refuted by the defendants
and so a specific issue was framed in respect of this dispute between the parties
and it was for the plaintiff to establish that after issuance of the sale certificate in
his favour by the executing Court he had been delivered actual possession of the
suit plot by the Court bailiff as was his stand. The plaintiff had though placed on
record copies of the pleadings of the recovery suit filed by LIC against late Smt.
Ghosh and some pleadings and orders passed in the execution proceedings, which
he was not even required to file because his case of title was based on the sale
certificate, but quite surprisingly he did not produce on record the order of the
executing Court directing that he should be delivered the actual physical
possession of the suit plot. After confirmation of the auction sale under Order XXI
21 Rule 92 CPC and issuance of the sale certificate by the executing Court, as
provided under XXI Rule 94 CPC, the auction purchaser is required to move an
application for delivery of actual possession if the property purchased by him is in
possession of the judgment debtor and for symbolical possession under Order XXI
Rule 96 CPC, if the possession is with some persons other than the judgment-
debtor. In the present case, since the possession of the suit plot was with the
judgment debtor, namely, late Smt. Sushila Ghosh on the date of confirmation of
the sale and issuance of the sale certificate in his name by the executing Court the
plaintiff, who was the auction purchaser, was supposed to move the executing
Court under Order 21 Rule 95 for taking the actual possession of the suit land.
This provision reads as under: -
"95. Delivery of property in occupancy of judgment-debtor
Where the immovable property sold is in the occupancy of the judgment-debtor or of
some person on his behalf or of some person claiming under a title created by the
judgment-debtor subsequently to the attachment of such property and a certificate in
respect thereof has been granted under rule 94, the Court shall, on the application of
the purchaser, order to delivery to be made by putting such purchaser or any person
whom he may appoint to receive delivery on his behalf in possession of the property,
and, if need be, by removing any person who refuses to vacate the same."
This provision of law makes it amply clear that the auction purchaser has to
move specific application before the executing Court for being delivered actual
possession of the property sole to him. This is the view taken by the Supreme
Court also in " K.P.Lakshminarayana Rao vs New Premier Chemical Industries", (2005) 9
SCC 354 and "Balwant Naryan Bhagle vs M.D. Bhagwat & Ors.", AIR 1975 SC 1767. If
the plaintiff had actually got the possession of the suit plot through Court bailff he
must have moved an application under this provision of law and the Court also
must have passed an order directing delivery of possession to him by the bailiff but
no copy of any such application under Order XX1 Rule 95 CPC or order of the
Court was produced by him during the trial. If the bailiff had delivered the
possession to him some delivery memo also must have been prepared at the spot in
the presence of some witnesses and its copy would have been given to the plaintiff.
No such proof also has been given by the plaintiff. In the absence of any such
documentary proof having been produced by the plaintiff his own bare statement
that he had been delivered the possession of the suit plot by the Court bailiff cannot
be accepted. There cannot be any automatic delivery of possession of any property,
even if it be vacant land, to an auction purchaser who has purchased the property in
court auction. Therefore, the argument of Mr. Arun Mohan based on the principal
that possession follows title also cannot come to the rescue of the plaintiff.
41. There are other strong reasons also for not accepting the ipse dixit of the
plaintiff that he had got the possession of the suit plot through Court bailiff in the
year 1969 and that possession continued with him till the institution of the present
suit. As noticed already, initially when he had filed the suit he had not claimed the
relief of possession on the ground that possession was already with him. That stand
he maintained throughout the trial. Even in the amended plaint after adding the
relief of possession in the prayer para he had maintained that he was in possession
of the suit plot. However in in his replication to the written statement of
defendants 1-3 to the amended plaint he pleaded that the Government appeared to
have taken over the possession of the suit plot during the pendency of the suit but
no details were given about the date of his dispossession. That plea was however
given up by him during his evidence when he once again re-iterated his claim that
he was in continuous possession of the suit plot ever since the date of its delivery
to him by the bailiff. And then when the trial Court did not grant him the decree of
possession he once again took a somersault and in his memorandum of appeal he
pleaded that the Government had taken over the possession of the suit plot after the
institution of this suit. And as has been noticed earlier the plaintiff has also
admitted in his written synopsis that as on date there exists a petrol pump on the
suit plot although Mr. Arun Mohan‟s submission was that the petrol pump was
there on a very small portion of the suit plot which could be easily ordered to be
removed during the execution of the possession decree if the same is granted to the
plaintiff in his appeal. Thus these conflicting stands taken by the plaintiff at
different times also indicate that the actual possession of the suit plot was not
obtained by him through Court bailiff at any time after issuance of the sale
certificate Ex.PW-1/1. From all this I have also entertaining a doubt in my doubt
that now this battle is being fought and continued not by the plaintiff himself but
by some proxy by the name of Manmohan Kumar acting as the attorney of the
appellant-plaintiff as is the position in case of the heirs of late Smt. Sushila Ghosh
also. So, a proxy war is being fought by the parties using the Court as a battlefield.
42. Thus, the position which now emerges in respect of the actual possession of
the suit plot on the date of filing of the suit by the plaintiff is that as on the date of
issuance of the Sale Certificate by Court in favour of the plaintiff the possession
was with late Smt. Sushila Ghosh. The plaintiff-auction purchaser did not get its
possession thereafter although ownership thereof stood transferred in his favour by
force of law. The plaintiff has placed on record a copy of the Deed of Transfer on
exchange dated 8th May, 1974 executed between late Smt. Sushila Ghosh and the
Government which records an agreement between these parties that the
Government would quietly enter upon the suit plot while executing the Lease Deed
in favour of Smt. Sushila Ghosh in respect of plot No.17, Masjid Moth. This
document also confirms that till 8.5.1974 the Government was not in actual
possession of the suit plot and Smt. Sushila Ghosh possessed the same. Despite
the fact that Smt. Sushila Ghosh stood divested of her ownership rights in the suit
plot by operation of law with the execution of the Sale Certificate Ex.PW-1/1 she
could still continue to retain its possession and to deliver it to anyone including the
Government which by virtue of the Deed of Transfer on Exchange she did.
Therefore, with effect from 8.5.1974 the possession of the suit plot can be said to
be with the Government although without acquiring any right in that property.
The plaintiff is now clearly claiming that the possession of the suit plot has been
taken over by the Government and has allotted the same to someone for running a
petrol pump though it is also his contention that that is only a temporary
arrangement entered into by the Government with someone because of this
litigation. In the Memorandum of Appeal also the plaintiff is claiming that the
Government is in possession of the suit plot. Although it is being claimed that the
Government has taken over the possession of the suit plot during the pendency of
the suit but in the absence of any evidence to that effect that plea cannot be
accepted and it has to be inferred that even on the date of filing of the suit in April,
1977, the plaintiff was not in actual possession of the suit plot.
43. There is no doubt that the plaintiff is now asking for a decree of possession
also by filing an appeal against the Trial Court's judgment wherein the Trial Court
has declined that prayer holding that he was in possession. However, as far as the
finding of the Trial Court that the plaintiff was in possession of the suit plot at the
time of filing of the suit now stands reversed because of this Court coming to the
conclusion that he was not in possession but it was the Government who was in
possession of the suit plot. The plaintiff even then cannot be given a decree of
possession in the present proceedings since his status qua the suit plot even now
remains that of an auction purchaser who is still to get delivery of the property
purchased by him. As an auction purchaser, the only remedy available to the
plaintiff was to invoke the provisions of Rule 95 or 96 of Order 21 CPC. No suit
lies at the instance of an auction purchaser for getting possession of the auctioned
property either against the judgment debtor in possession or anyone else in
occupation thereof either on behalf of the judgment debtor or in any other capacity.
This is also the view taken by the Supreme Court in K.R.Lakshminarayana Rao's case
(supra) which judgment was followed by Kerala High Court also in " Velikkal
Anjaneyan and Anr.", 2008(1) KLJ 349.
44. The result of aforesaid discussion on all the aspects canvassed before this
Court during the course of hearing of these appeals is that the decision of the
learned Trial Court granting a decree of declaration in favour of the plaintiff-
appellant Subhash Chander Ahuja declaring him to be the owner of plot No.58,
Sunlight Colony (now known as Bhikaji Cama Place) is affirmed as also the
rejection of the relief of decree of possession in respect of the said plot to the
plaintiff though not on the ground that he was already in possession thereof but for
the reason that neither he was in possession on the date of filing of the suit nor he
had taken any steps in accordance with law as an auction purchaser to get its
possession delivered to him by the executing Court. Consequently, both these
appeals are dismissed. However, the appellants in both the appeals are directed to
bear their respective costs. As a result of the dismissal of the appeal of defendants
No.4 to 8 (RFA No. 405/1992) the stay which this Court had granted against the
operation of letter dated 18th December, 1992, issued by the Government calling
upon these defendants to surrender the possession of leased property No.17,
Sirifort Road, New Delhi stands vacated.
DECEMBER 07, 2009 P.K.BHASIN,J
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