Adbul Wahid & Ors vs Mohd Aslam & Ors
2010 Latest Caselaw 5227 Del

           THE HIGH COURT OF DELHI AT NEW DELHI
%                       Judgment Pronounced on: 18.11.2010

+           CS(OS) No. 1449/2010
ADBUL WAHID & ORS                                ..... Plaintiff

                              - versus -

MOHD ASLAM & ORS                              ..... Defendants

Advocates who appeared in this case:

For the Plaintiff : Mr. Rajiv Kr. Garg, Adv.
For the Defendant: Mr. S.K. Bhalla, Adv. for D-1.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1.

Whether Reporters of local papers may be allowed to see the judgment? No

2. To be referred to the Reporter or not? No

3. Whether the judgment should be reported No in Digest?

V.K. JAIN, J (Oral)

IA 9385/2010 & 14931/2010 in CS(OS) 1449/2010

1. Property bearing no. 878, Haveli Azam Khan, Chitli

Qabar, Delhi, measuring 120 Sq. yards was owned by late

Mohd. Mian. On his death, this property devolved on his

two sons namely Mehmood Mian and Ahmad Mian. The

case of the plaintiffs is that their predecessor in interest

Abdul Waheed was inducted as a tenant by Mehmood Mian

in June, 1987 in the first floor for the aforesaid property

and later on, late Sh. Mehmood Mian entered into an

agreement to sell of first floor of the property to Abdul

Waheed and Fakhra Sultana for a sale consideration of Rs.

48,000/-, on 08.08.1987.

A civil suit seeking injunction against transfer of

first floor premises of the aforesaid house was filed by 4

sons of Ahmad Mian against Mehmood Mian. The fifth son

of Ahmad Mian, namely, Khurseed Ahmad was impleaded

as defendant no. 1 in that suit. An order for maintenance of

status quo in respect of the suit property was passed by the

Civil Court in that case on 30.10.1987. However, Sh.

Mehmood Mian in violation of the status quo order dated

30.10.1987 executed a sale deed in respect of the first floor,

in favour of Abdul Waheed and Fakhra Sultana, predecessor

in interest of plaintiffs before this Court on 06.11.1987.

2. The case of the plaintiffs before this Court is that

they were already in possession, Abdul Waheed being a

tenant under Sh. Mehmood Mian when the sale deed was

executed. The case of the plaintiffs before the learned Addl.

District Judge, however, was that possession of the first

floor was handed over to them by Sh. Mehmood Mian on

31.10.1987. After execution of the sale deed in favour of the

parents of the plaintiffs before this Court, the plaint was

amended and the name of Mehmood Mian was struck off of

the array of parties.

3. Vide judgment dated 26.11.2006, the learned Addl.

District Judge took the view that the sale deed having been

executed in violation of the status quo order passed by the

Court, it was illegal and in unenforceable and did not confer

any right, title or interest on the purchasers. The Court

also rejected the plea taken by the purchasers that Abdul

Waheed was a tenant in respect of the first floor and had

come into possession of the same prior to passing of status

quo order by the Court. A specific finding was given that

they had got possession of the said property in violation of

the status quo order, and therefore, the possession could

not be recognized and had to be treated as illegal. The

Court also took the view that it could order them to return

possession which they had illegally obtained from Mehmood

Mian during the pendency of the suit. The sale deed dated

06.11.1987 executed by Mehmood Mian in favour of parents

of the plaintiff before this Court was therefore declared

illegal and ordered to be cancelled. Since the parents of the

plaintiffs before this Court had died during pendency of the

suit before learned Addl. District Judge, their legal heirs

were directed to hand over vacant physical possession of the

first floor to the plaintiffs in that suit within 30 days from

the date of the order.

4. An objection was taken by the defendants before

the Civil Court that the suit before it was bad for non-

joinder of the legal heirs of Mehmood Mian, since his wife

was alive at the time of his death. The issue was, however,

decided against them holding that as per Muslim Law, on

death of a Muslim male, his estate, in the absence of his

own children, is inherited by his nephew. The learned

Additional District Judge also held that the sale made by

Mehmood Mian in favour of Abdul Waheed and Fakhra

Sultana was hit by Section 52 of Property of Transfer Act

and was null and void even if they had purchased the

property in good faith, without notice of litigation or stay

order.

5. An appeal filed by Abdul Wahid, plaintiff no. 1

before this Court being RFA No. 80/2007 was dismissed by

this Court on 20th April, 2010. The Court while dismissing

the appeal, rejected the plea of defendants no. 2 and 3 in

the suit that they were in possession of the first floor as

tenants since June, 1987. While dismissing the appeal filed

by Abdul Wahid, this Court was of the view that estate of

Mehmood Mian was adequately represented before the Civil

Court and the suit did not abate despite his death and on

account of non-impleadment of his wife after his death.

This Court also was of the view that there was no

requirement to implead Anis Fatima, wife of Mehmood Mian,

as defendant because she had no right or title in the suit

property not had she dealt with it.

6. As a result of dismissal of the appeal filed by Abdul

Wahid, the judgment and decree passed by the learned

Addl. District Judge on 13.11.2006 has become final. The

Special Leave Petition, which Abdul Wahid had filed against

the order of this Court dismissing his appeal was dismissed

as withdrawn. A copy of the order of Supreme Court is on

record.

7. Now vide this suit, the plaintiffs have sought

specific performance of the agreement dated 08.08.1987

alleged to have been executed by Mehmood Mian in favour

of late Abdul Waheed and Farkha Sultana. They have also

sought declaration that they are entitled to ownership of

half of the aforesaid property and are also tenants with

respect to the first floor of the property. They have also

sought injunction against their dispossession from the first

floor premises. As an interim relief, the plaintiffs are

seeking stay of their dispossession from the first floor

premises during pendency of this suit.

8. Learned counsel for the plaintiff was asked as to

how the suit filed by the plaintiffs is within limitation. His

contention is that since sale deed had already been

executed in favour of his parents by late Mohd. Mian, there

was no occasion for him to file a suit for specific

performance of the agreement dated 08.08.1987. He further

states that the present suit was not filed earlier since the

appeal filed by Abdul Wahid was pending before this Court.

9. Article 54 of the Limitation Act which governs the

suit for specific performance of a contract provides the

period of three years from the date fixed for the performance

of the contract or if no such date is fixed, when the plaintiff

has noticed that performance is refused, as the period for

filing a suit in which specific performance of a contract is

sought. The sale deed in favour of the parents of the plaintiff

was cancelled vide judgment and decree dated 30.11.2006.

The plaintiffs knew it very well that the opposite party i.e.

plaintiffs in the civil suit decreed by the learned Addl.

District Judge were denying the agreement to sell executed

by late Sh. Mohd. Mian in favour of their parents.

Therefore, it cannot be said that the plaintiffs before this

Court did not know that the legal heirs of late Sh. Mohd.

Mian had refused to perform the agreement dated

08.08.1987. Despite that, the suit for specific performance

of the agreement dated 08.08.1987 was not filed even within

three years from the date on which the suit was filed before

learned District Judge and the sale deed executed in favour

of the parents of the plaintiff before this Court was

cancelled. The contention of the learned counsel for the

defendant is that the pendency of the appeal would not have

come in the way of plaintiffs' filing a suit for specific

performance of the contract dated 08.08.1987 when they

were fully aware that the legal heirs of late Sh. Mohd. Mian

had already denied the agreement in favour of their parents

and had also obtained a decree not only for cancellation of a

sale deed executed in favour of their parents but also for

handing over the possession of the first floor premises to

them. However, I need not go further into the issue of

limitation at this stage, since I am of the view that even if

the period of limitation did not start till the appeal filed by

Abdul Wahid was dismissed by this Court, the plaintiffs

before this Court are not entitled to the interim injunction

sought by him.

10. The plaintiffs have already suffered a decree for

possession and they are liable to be dispossessed from the

first floor of the suit property in execution of the decree

passed against them. It was open to them to claim before

the Learned Addl. District Judge that their possession is

protected under Section 53-A of Transfer of Property Act,

and therefore decree for possession ought not to be passed

against them. However, no such plea appears to have been

taken and the facts remains that a decree directing the

plaintiffs before this Court to hand over the possession of

first floor premises to the defendants before this Court, who

were plaintiffs/decree holders before learned Addl. District

Judge, has already been passed. The plea taken by the

plaintiffs in this suit is that they are tenants in respect of

the first floor of this house, their predecessor Abdul

Waheed, S/o Abdul Majid, having been inducted as tenant

in June, 1987 and possession having been given to him at

the time of indicting him as a tenant at the rent of Rs 60

p.m. This plea has been rejected by the learned Additional

District Judge, who came to the conclusion that late

Mehmood Mian parted with possession of the first floor

premises on 31st October, 1987 in violation of the status

quo order passed by this Court on 30th October, 1987. The

learned Additional District Judge also came to the

conclusion that a sale deed executed in favour of Abdul

Wahid and Fakhra Sultana was illegal and void having been

executed in violation of the order of status quo passed by

the Court. This finding, rendered after trial and affirmed by

this Court in appeal has become final and cannot be re-

agitated in the present suit. The plaintiffs, therefore, cannot

be allowed to retain possession which has been found to be

illegal and thereby frustrate the decree passed by the

learned Additional District Judge for dispossessing from the

said premises.

11. This is not the case of the plaintiff before this

Court that though the agreement in favour of Abdul Waheed

and Fakhra Sultana was executed on 08th August, 1987, the

possession, pursuant to this agreement, was delivered to

them on 31st October, 1987. Their case has been that

Abdul Waheed was inducted as a tenant in June, 1987 and

the possession of the first floor premises was given to him at

that time. The stand taken by them has been found to be

false by the learned Additional District Judge and the

finding recorded by him has been affirmed by this Court.

Hence, there is a strong probability of the agreement having

ante-dated in collusion with Mehmood Mian, so as to make

out a transaction on a date prior to 30 th October, 1987,

when the status quo order was passed by the Court. This is

more so, when no payment prior to 30th October, 1987 has

been alleged by way of a cheque/pay order/bank draft. In

case the agreement was executed after passing of the status

quo order on 30th October, 1987, the whole transaction,

including the agreement itself, would be illegal and void

being in contravention of the status quo order passed by the

Court. The plaintiffs, who have already enjoyed the fruits of

an illegal possession for more than 23 years, cannot be

allowed to perpetuate their unlawful possession by granting

the injunction sought by them.

12. In my view, there is no prima facie case in favour of

the plaintiffs since their possession of the first floor

premises has been found to be illegal and the sale deed

executed in favour of their predecessors in interest had

already been ordered to be cancelled. Their plea of being a

tenant in respect of the first floor premises has also been

negated by the learned Additional Judge. The appeal filed

by the Abdul Wahid has already been dismissed by this

Court and even the Special Leave Petition filed by him

against that order has been withdrawn by him. In case the

plaintiffs ultimately succeed in the suit, they can always

seek possession from the defendants in execution of the

decree that may be passed in their favour.

I, therefore, see no justification for granting the

injunction sought by the plaintiffs against their

dispossession from the first floor premises. Both the

applications are dismissed.

CS(OS) 1449/2010

Documents in original be filed within four weeks.

Parties to appear before Joint Registrar for

admission/denial of the documents on 7 th January, 2011

and before Court for framing of issues on 4 th February,

2011.

(V.K. JAIN) JUDGE NOVEMBER 18, 2010/'RS'/BG