Sh. Than Singh And Anr vs Sh. Ram Pal And Ors.
2010 Latest Caselaw 1319 Del

               IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                           Date of decision: 10.03.2010
+                                              CS (OS) No. 1964/1996

       SH. THAN SINGH AND ANR                                                        ..... Plaintiffs

                                     Through: Mr. S.S. Gautam, Advocate.

                                               versus
       SH. RAM PAL AND ORS.                                                          ..... Defendants

                                     Through: None.

       CORAM:
       MR. JUSTICE S. RAVINDRA BHAT

1.

     Whether the Reporters of local papers            Yes.
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?               Yes.

3.     Whether the judgment should be                   Yes.
       reported in the Digest?

MR. S.RAVINDRA BHAT (OPEN COURT)

1. This suit for recovery of possession on the basis of title, under Section 5 of the Specific Relief Act, has been shown in the list of final hearing cases issued by the Court. When the suit was called up for hearing, the defendants were unrepresented. The plaintiffs' counsel was, however, present and was heard. In the circumstance, the Court is proceeding to enter judgment in terms of Explanation to Order 17 Rule 2, of the Code of Civil Procedure (CPC).

2. Briefly, the suit seeks recovery of possession of land being an area of 2 Bhigas 8 Biswas (out of Khasra No. 1/18, 19, 22,/1-2, and 23) at Village Nangloi Jat Delhi State, Delhi ( hereafter referred to as "suit property").

3. The plaintiffs also seek damages and mesne profits at the rate of Rs. 40,000/- (Rupees Forty Thousand) per month against the defendants and future damages and profits for alleged unauthorized use and occupation. Originally, the first plaintiff had filed the suit. After filing of written statement, in which an objection as to non-joinder of certain parties was taken, the pleadings were amended and the second plaintiff as well as the third defendant, were added as parties. The first plaintiff (hereafter referred to as Than Singh) submits that the suit property was originally owned by Sh. Ratan Singh as well as

CS (OS) No. 1964/1996 Page 1 Sh. Jagjoyti Jain and Sh. Gulshan Jain. The suit relies upon the registered Sale Deed dated 16/05/1972 by which Rattan Singh had conveyed the property to Sh. Jagjoyti Jain and Gulshan Jain. It is stated that through another registered Sale Deed dated 30/03/1984 (Ex.P-1), the property was sold to Than Singh and his brother Sanjay Kumar, who became its undivided owner. The suit further narrates that at the time of the execution of Sale Deed, both Than Singh and Sanjay Kumar were minors; they continued in possession till the death of Sanjay Kumar in July, 1993. The suit also alleges that the possession of the entire property was delivered when the Sale Deed dated 30/03/1984 was executed, and registered, on 18/04/1984. Than Singh alleges that Sh. Sanjay Kumar was unmarried and issueless; he also was not survived by any Class I heir but only a brother and one sister, i.e. 3rd defendant (apart from himself), who was subsequently impleaded.

4. The plaintiffs contend that initially there was very little construction on the suit property but subsequently five shops, three halls, four rooms, three galleries, a kitchen, bathroom and basement were constructed on it; a part of the land was left upon. The suit alleges that Than Singh's father (Ishwar Singh) was also residing with them in the property until his unfortunate murder on 04/06/1984. After that Than Singh and Sanjay Kumar continued to manage the property till the death of the latter, i.e Sanjay Kumar.

5. It is alleged that the first plaintiff was involved in a false murder case and that, at the relevant time, since he was not residing in the residence, having taking advantage of his absence, first defendant trespassed and forcibly occupied the entire constructed portion, as well as open portion of the suit property about one year before the filing of the suit. The plaintiffs claim decree for recovery of possession on the basis of title and also damages/mesne profits.

6. The suit was initially filed claiming that they were trespassers, the defendants filed a common written statement, stating that the suit was not maintainable because of the previous proceedings in Suit no. 3818/90 (titled Sanjay Kumar Vs. Smt. Sushila and others) filed before the Court. It is submitted that the said suit had sought for similar relief but was dismissed in default. The defendants state that provisions of Order 9 Rule 9 Code of Civil Procedure (CPC) bar the present case. It is stated that the order dated

CS (OS) No. 1964/1996 Page 2 16/01/1992 dismissed the said suit in default and has become final and act as hurdle/bar to any relief in the present case.

7. The defendants contend that by registered Deed dated 29/06/1990, the suit property was sold to them by Sh. Sanjay Kumar and that they are in peaceful occupation on the entirety of it. It is claimed that on execution of the said registered Sale Deed, Sh. Sanjay Kumar was divested of any title and upon his death, the first plaintiff as his successor could not have claimed better rights and interest and, therefore, cannot seek a decree for possession or mesne profits. It is stated that the plaintiffs are disentitled to the relief because of non-disclosure of the said fact, regarding the previous suit; its dismissal and the vitality attached to the order.

8. The first two defendants claim to be in peaceful enjoyment and continuous possession of the suit property since 29/06/1990 when it was purchased for lawful consideration from Sanjay Kumar. The defendants admit that possession of the land was delivered by the previous vendors, i.e. Jagjit Jain, Gulshan and Sanjay Kumar after execution of the Sale Deed in 1984. It is stated, however, that the second defendant purchased half portion of the property, i.e 1 Bigha, 4 Biswas , from Sh. Sanjay Kumar who claimed that the land shown in the site plan has come to his share in portion from Sh. Than Singh. It is thus asserted that even as against the first plaintiff, the defendants are entitled to claim possession adverse to his interest.

9. The defendants seek to support the claim for possession by indicating in Para 4 of the written statement that different portions of the property were let out to tenants on various dates, i.e. 01/03/1992, 01/08/1992, 01/01/1993. The defendants deny having illegally trespassed into the property and again assert that they have been in lawful enjoyment of it.

10. By virtue of the objections as to maintainability based on non-joinder of necessary parties, the Court permitted Than Singh to amend the suit on 16/01/2001 and consequently defendant no. 3 and plaintiff no. 2 were added as party. The second plaintiff is the brother of Than Singh and late Sanjay Kumar and the third defendant is their sister.

11.     The amended suit was filed on 16/1/2001.            The third defendant has filed a

CS (OS) No. 1964/1996                                                                   Page 3

separate written statement contending that the suit is not maintainable by virtue of Section 185 of Delhi Land Reforms Act. She also claims to be the exclusive owner of the property since her father, late Ishwar Singh, had bequeathed or gifted 11 biswas of land to her.

12. The parties have, in support of their rival claims, filed documents. The plaintiff relies upon Ex. P1, which is the certified copy of Sale Deed dated 30th March, 1984 registered on 18/04/1984. The defendants rely upon the certified copy of the plaint in Suit no. 3818/1990 (Exhibits PW 1/B); certified copy of the order of court dated 16/01/1992 in suit no. 3818/1990 (DW-1/4) and Ex DW 1/1, copy of the Sale deed dated 29/06/1990 executed by Sanjay Kumar in favor of the second defendant.

13. The parties had adduced oral evidence; Than Singh was examined as PW -1; DW-1 is the second defendant, Sushila Devi. On the basis of the pleadings and the documents, this Court framed issues on 17/08/2001. The same read as follows:-

1. Whether the present suit is barred under Order IX Rule 9 Code of Civil Procedure Code?

2. Whether the present suit is not maintainable?

3. Whether the suit is bad for mis-joinder and non-joinder of necessary parties?

4. Whether the plaintiff is entitled to the decree for specific relief and damages? If so for how much?

5. Whether this Court has no jurisdiction to entertain the suit?

6. Relief

14. These issues, as is evident from the above discussion, were framed at the behest of the defendants, who had urged that the dismissal, in default, of Suit no. 3818/90 (titled Sanjay Kumar Vs. Smt. Sushila and others) filed before the Court precluded the present suit. A certified copy of that suit has been filed in Court, as Ex. DW-1/3. A reading of the suit, undoubtedly reveals that Sanjay Kumar, the first plaintiff's undivided co-owner, sought for a declaration against Ms. Sushila, the first defendant's wife that the sale deed executed in the latter's favour by him, on 29th June, 1990 (Ex. DW-1/1) was void and not

CS (OS) No. 1964/1996 Page 4 binding. He alleged that the sale deed was fraudulently obtained by inducement, when he was minor, and during the time the present plaintiff Than Singh was also a minor.

15. There can be no doubt that the filing of the previous suit, and its dismissal for non-prosecution are admitted facts, as also the relief claimed there. The question is, whether such dismissal, attracts the provisions of Order 9, Rule 9, CPC to bar the present suit.

16. Order IX Rule 9 of the Code reads as follows:

"...9 DECREE AGAINST PLAINTIFF BY DEFAULT BARS FRESH SUIT. (1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non- appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party...."

A "decree" is defined as follows:

"Section 2: In this Act, unless there is anything repugnant in the subject or context, -

(1) "Code" include rules.

(2) "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within [ 2 * * * * 2 ] section 144, but shall not include -

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default...."

        (emphasis given)


CS (OS) No. 1964/1996                                                                   Page 5

17. What is immediately apparent from the above provisions is that a dismissal, under Order 9 Rule 8, of a suit, for non prosecution, does not amount to a decree, as there is no adjudication of the merits of any case. However, the plaintiff in that suit, is barred from filing ("precluded") another suit on the same cause of action. Here, the facts reveal that the plaintiff in the previous suit was the present plaintiff's (Than Singh's) brother and co-

owner. The present plaintiff was not party to the previous suit. Furthermore, the declaration sought was in respect of the plaintiff (Sanjay Kumar's) rights. In these circumstances, it is held that the present plaintiff is not precluded from instituting the present suit. The first issue is answered, accordingly against the defendants, in the plaintiffs' favour. As far as the second issue is concerned, the same appears to be a sequel to the objection based on Order 9 Rule 9; in any event, the plaintiffs not being a party to the previous proceeding, there is no question of suppression of material facts, or otherwise. This issue, too, is answered in the plaintiffs' favour. As far as the fifth issue, regarding maintainability is concerned, the defendants have not urged why the suit is not maintainable.

18. The third issue concerns joinder of parties. The Defendants urge that the plaintiffs' intentionally did not implead all heirs of Sanjay Singh. After this objection was raised, the first plaintiff amended the suit, and impleaded his brother as second plaintiff, and the third defendant, his sister. The defendants had alleged that the suit could not proceed in their absence. The objection relating to maintainability on account of absence of necessary parties, therefore, does not survive; as far as mis-joinder is concerned, the objection is insubstantial, because such mis-joinder of a party cannot defeat a suit. This issue too, is answered against the defendants, and in favour of the plaintiffs.

19. This issue appears to have been framed keeping in view the relief claimed in the suit, i.e. a decree for possession, based on title. However, by inadvertence, the Court, at

CS (OS) No. 1964/1996 Page 6 the time of framing the issue, recorded the relief as "specific performance", even though the first plaintiff claims possession, based on his title to the property.

20. Section 5 of the Specific Relief Act, states as follows:

"5 RECOVERY OF SPECIFIC IMMOVABLE PROPERTY.

A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908."

It has been held in decisions of various courts that the difference between Section 5 and Section 6 is that whereas the latter emphasizes on the previous possession of the plaintiff, and imposes a time limit of six months, for bringing an action for decree of possession, the previous section is premised on the claimant seeking a decree, based on title (Ref. Somnath Berman v. S.P. Raju AIR 1970 SC 846). The Supreme Court has also ruled, in Gitarani Paul v. Dibyendra Kundu AIR 1991 SC 395, that if a claimant proves title to the suit lands, the exact details of dispossession need not be proved, to secure a decree for possession, based on title:

"In the face of clear pleadings and the evidence on record the High Court was wrong in reaching the conclusion that there was no pleadings and evidence regarding dispossession. Even otherwise in the face of the finding of the courts below that the appellant-plaintiff had proved her title it was not necessary for the High Court to go into the question of ascertaining the date of dispossession. We, therefore, do not agree with the reasoning of the High Court and set aside the same."

It had earlier been held that so long as the true owner shows that he was dispossessed for any period, less than 12 years, he can recover the property (Nair Service Society v K.C. Alexander AIR 1968 SC 1165).

21. Ex. P1, the certified copy of Sale Deed dated 30th March, 1984 registered on 18/04/1984, establishes that the suit property was bought on behalf of plaintiff and his brother, Sanjay Kumar, from the original owners, who were in possession. The sale deed assigns undivided shares to the co-vendees. The defendants do not dispute this transaction; indeed they rely on it, acknowledging Sanjay Kumar's title, and state that he executed Ex DW 1/1, the Sale deed dated 29/06/1990 in favour of the second defendant.

CS (OS) No. 1964/1996 Page 7 There is no attempt to explain how Sanjay Kumar, the co-owner of a half undivided share in the suit property, could have conveyed the entire right, title and interest in it absolutely to the defendants. Therefore, the conveyance cannot bind the first plaintiff, whose title, as co-owner, stems from the same document which conveyed title to the defendant's vendee.

22. Apart from the above, there is another serious flaw in the defendant's plea. Sanjay Kumar's plaint (in Suit No. 3818/1990 -Ex PW 1/B) clearly states that he was a minor (having been born in 1973). In fact, that was also the basis of his suit claim. It is one of the cardinal principles of law that a person who is not of age (i.e. is a minor) is incapable of entering into binding contracts. Therefore, if a minor is allowed to enter into a contract, which creates or purports to create interest in immovable property, in the absence of any procedure prescribed by law, where his guardian is empowered to, and permitted to alienate the property, such transaction would be void, and not binding on the parties concerned, and in any case, cannot result in passing a valid title. This was ruled upon, in Nawab Sadiq Ali Khan And Others v. Jai Kishori And Others A.I.R. 1928 P.C. 152, in the following terms:

"On the whole matter, their Lordships are of opinion that the Subordinate Judge came to the right conclusion. The fact of minority being established at the date of the execution by the mortgagors of the deed founded on is sufficient for the decision of the case; such a deed executed by minors being admittedly a nullity according to Indian law, and incapable of founding a plea of estoppel. They will, therefore, humbly advise His Majesty that the appeal should be sustained, and that the suit should be dismissed with costs here and below since the date of the judgment of the Subordinate Judge."

This position was reiterated by the Madras High Court, in Govinda Kurup v. Beekku And Others AIR 1931 Mad 147, in the following terms:

"The fundamental conception of a lease involves the transfer of an interest in immovable property by the lessor to the lessee, and if a valid lease can be created even by a registered instrument signed by the lessee and accepted by the lessor, it must be deemed to have effected a transfer of an interest in immovable property by the lessor to the lessee. If by reason of CS (OS) No. 1964/1996 Page 8 the lessor's minority, he is incompetent to make the transfer at all, the fact that the instrument is not signed or executed by him, but only to him cannot make any difference. By necessary implication, it amounts to transfer by the lessor ( in this case, a minor), and if it should be contended, that because Ex. B is not signed or executed by defendant 1, there was no transfer by the minor, it would follow, that there was no lease at all.

It seems to me clear that the invalidity of the lease in question by reason of the minority of the lessor cannot be got over, by the circumstance that the instrument Ex. B was executed to her, and not by her.

XXX XXX XXX

Such a transfer by a minor, who is incompetent to make the transfer, is now sought to be enforced by the plaintiff, as the basis of his claim to recover possession of the properties from defendants 3 and 4. This case, has, in my opinion, no close analogy to a case of a sale in favour of a minor who has already paid the price, or a mortgage in favour of a minor who has already advanced the loan. The Full Bench decision in Raghavachariar v. Srinivasaraghavachariar (3), deals with such a mortgage in favour of a minor."

In this case, the defendants do not dispute that Sanjay Kumar was a minor, when he executed the sale deed in their favour; indeed, they rely on the previous suit filed by him, though for another purpose. In that, Sanjay Kumar claims to have been a minor when the transaction was entered into. In the circumstances, the defendants could not have been lawfully conveyed title to the property by Sanjay Kumar, a minor at the time of the transaction. So far as the objection to the suit on the ground of the plaintiffs having not claimed any declaration or cancellation is concerned, it would be worthwhile to notice the relevant provisions of the Registration Act which provide that in the event of two documents dealing with the same subject matter, the one registered earlier would prevail. This is apparent from Sections 47 and 50 of the Registration Act, 1908, which read as follows:

"47 TIME FROM WHICH REGISTERED DOCUMENT OPERATES.

CS (OS) No. 1964/1996 Page 9 A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration Xxxxxxxxxxxx xxxxxxxxxxxxxxx 50 CERTAIN REGISTERED DOCUMENTS RELATING TO LAND TO TAKE EFFECT AGAINST UNREGISTERED DOCUMENTS.

(1) Every document of the kinds mentioned in clauses (a), (b), (c) and (d) of section 17, sub-section (1), and clauses (a) and (b) of section 18, shall, if duly registered, take effect as regards the property comprised therein, against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not.

(2) Nothing in sub-section (1) applies to leases exempted under the proviso to sub-section (1) of section 17 or to any document mentioned in sub-section (2) of the same section, or to any registered document which had not priority under the law in force at the commencement of this Act. Explanation : In cases where Act No. XVI of 1864 or the Indian Registration Act, 1866, was in force in the place and at the time in and at which such unregistered document was executed, "unregistered" means not registered according to such Act, and, where the document is executed after the first day of July, 1871, not registered under the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act."

The above provisions would reveal that as between two registered documents, the one which is executed earlier, would prevail. Such being the case, the plaintiffs do not need to challenge the sale deed relied on by the defendants, as it is earlier to the one executed in the second defendant's favour, and also having regard to the fact that the sale deed executed by Sanjay Kumar could not have conveyed valid title in the second defendant's favour. This issue is therefore, is answered in the plaintiffs' favour; it is held that the suit for possession has to be decreed.

In view of the findings recorded in respect of Issue No. 4, the suit has to succeed; the plaintiffs are entitled to a decree for possession of the suit property. The suit is accordingly decreed, with costs.

CS (OS) No. 1964/1996                                                                Page 10
                         S. RAVINDRA BHAT
                                  (JUDGE)
March 10, 2010




CS (OS) No. 1964/1996              Page 11