Smt. Raj Rani Sharma vs Smt. Gayatri Kukreja & Anr.
2010 Latest Caselaw 4405 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      CS(OS) NO.774/2007

                                           Reserved on : 30.4.2010
                                       Date of Decision 20.09.2010

SMT. RAJ RANI SHARMA                          ......     Plaintiff
                            Through:    Mr.A.B.Dial, Sr.Adv. with
                                        Mr.M.K.Vashisht, Advocate

                              Versus

SMT. GAYATRI KUKREJA & ANR.                     ...... Defendants
                     Through:           Mr.Vikas Sharma, Advocate
                                        for defendant no.1.
                                        Mr.R.S.Juneja, Advocate for
                                        defendant no.2.
                                        Mr.K.B.Upadhyay, Advocate
                                        for defendant no.3.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?               YES
2.     To be referred to the Reporter or not ?    YES
3.     Whether the judgment should be reported
       in the Digest ?                            YES

V.K. SHALI, J.

IA Nos. 4897/07 , 7083/08 & 15209/08

1. This order shall dispose of three applications bearing IA

Nos.4897/2007 (u/O 39 Rules 1-2 CPC), 7083/2008 (u/O

39 Rules 1 and 2 CPC) and 15209/2008 (u/O 39 Rule 4

CPC).

2. Briefly stated the facts leading to filing of the present

applications are that the plaintiff filed a suit for declaration

and in the alternative claiming a compensation to the tune of

Rs.82,16,000/- from the defendants apart from other reliefs.

It was alleged in the plaint that the plaintiff was a bonafide

purchaser of a residential flat bearing No.B-47 in Upkar Co-

operative Group Housing Society situated at plot no.18,

Mayur Vihar, Phase I Extension, New Delhi -91 from

defendant no.1 for a total sale consideration of Rs.7,90,000/-

vide a registered sale deed dated 9.5.2005. It is alleged that

at the time of execution of the sale deed, the defendant no.1

had represented and assured the plaintiff that the property in

question was free from all encumbrances. Believing these

representations to be true and coupled with the fact that the

defendant no.1 had got a certificate from defendant

no.2/Society on 29.12.2003 in her favour granting no

objection for converting the lease hold rights in respect of the

flat to freehold by the DDA, the plaintiff purchased the flat. It

is further alleged that subsequent thereto, the DDA had also

registered a Conveyance Deed in favour of the defendant no. 1

on 24.8.2004 whereupon the defendant no.1 had sold this flat

to the plaintiff on 09.5.2005. It is alleged in the plaint that

the plaintiff had taken possession of the flat on 09.4.2004

although the document of sale was executed on 9.5.2005 but

on account of sad demise of her husband, she could not carry

out the renovation work in the flat. She had allegedly gone

to Mascat to be with her son. During this period, she had put

the lock on the flat in question and when after a year or so

she came back to India in the month of April, 2006, she was

surprised to find that the locks of the flat had been changed.

She lodged a report with the police on 10.5.2006. To her

utter shock and surprise she found that on 20.5.2006, the

defendant no.2/cooperative society got an advertisement

inserted in newspaper intimating that nobody should deal

with the flat in question as the defendant no.1 having

membership No.230 had obtained the said membership on

the basis of false representation.

3. The plaintiff has alleged in the plaint that on account of

insertion of the advertisement, a cloud was sought to be cast

on the right of the plaintiff and therefore, she has chosen to

file the present suit for declaration to the effect that she be

declared as bonafide purchaser of the suit property but

curiously enough, the plaintiff has also made a prayer that

the sale deed dated 9.5.2005 which is purported to be

executed by defendant no.1 in her favour be declared as void

and should be cancelled. It is also prayed by the plaintiff that

she be admitted as a member of the Cooperative

society/defendant no.2, or in alternative a decree for a sum of

Rs.82,16,000/- be passed against the defendant.

4. The defendant no.1 has filed the written statement and

contested the claim of the plaintiff. She has denied that the

flat has been sold by her to the plaintiff.

5. The defendant no.2 has also taken the plea that the plaintiff

could not be granted the relief of being declared as a bonafide

purchaser on account of the fact that the defendant no.1 had

obtained the membership of the Cooperative Society by

furnishing the false documents inasmuch as her husband

was also member of the Cooperative Society and according to

the provisions of the Delhi Co-operative Society Act and the

rules framed thereunder lays down that both the spouses

could not be members of a Cooperative Society and since the

husband of the defendant no.1 was a member of the Co-

operative society therefore, her membership stood cancelled.

Since the membership of the defendant no.1 stood cancelled,

consequently she was not the rightful member of defendant

no.2 society and much less she could transact the property in

favour of the plaintiff.

6. The defendant no.3 is a newly impleaded defendant who is

claiming that she was also a member of defendant no.2

Society vide membership No.133, however, her membership

was cancelled by the defendant no.2 in the year 1987 on the

wrong assumption that she had submitted her. It is alleged

that she had never submitted her resignation and actually

her signatures were forged as a consequence of which he had

got her right regarding membership of the society adjudicated

in different forums ultimately culminating into a reference of

the dispute to Sh.S.M.Aggarwal, ADJ (Retired) under Section

55 of the Delhi Cooperative Society Act. He held her to be a

lawful member of the defendant no.2/society. It is stated by

him that defendant no.2 has issued allotment letter to the

defendant no.3 and the restraint order which has been

passed on 11.8.2008 restraining defendant no.2/society from

allotting the said flat, to any person, is thereby causing a

undue hardship to him inasmuch as she is not able to take

the possession of the flat in question.

7. It is in this backdrop of the aforesaid facts that application

bearing No.4897/2007 has been filed by the plaintiff

originally along with the suit for passing an ad interim

injunction order against the defendant from creating any

third party interest in respect of the flat in question. The

plaintiff was not granted any ex parte ad interim injunction

despite the fact that the application has been pending for

considerable length of time.

8. Subsequent thereto, a fresh application bearing IA

No.7083/2008 was filed by the plaintiff by urging that new

facts have emerged to her knowledge which show that the

defendant no.3 who is claiming himself to be the rightful

member of the defendant no.2 society had actually

adjudicated his rights by way of arbitration under Section 60

of the Delhi Cooperative Society Act which proceedings took

time and his resignation from the defendant no.2 society was

held to be valid. It is stated that the defendant no.3 had

thereafter challenged the said order before the Commissioner

as well as before the High Court without any success and it is

only after being unsuccessful in different forums that the

defendant no.3 has now chosen to get the matter referred to a

retired ADJ as Lok Adalat for resolution of the dispute.

Sh.S.M.Aggarwal, ADJ (Retired) has given a finding in his

favour declaring his membership to be lawful and

consequently, the plaintiff is apprehending that the flat may

be allotted to him. The defendant no.2 is trying to hand over

the possession of the flat to the defendant no.3 and therefore,

the application for stay was filed again by the plaintiff.

9. It is on this application, that the Court had passed an order

on 11.8.2008 restraining the defendant no.2 from handing

over or allotting the flat in question to any person during the

pendency of the suit.

10. So far as the third application bearing No.15209/2008 is

concerned, that is filed under Order 39 Rule 4 CPC by the

defendant no.3. The defendant no.3 has taken the plea that

the interim order dated 11.8.08 which is passed against the

defendant no.2 is working to his detriment inasmuch as,

despite a finding having been given by Sh.S.M. Aggarwal, ADJ

(Retired) in his favour declaring him to be lawful member and

the defendant no.2 deciding to allot the flat in question to

him yet he is not able to get the possession of the flat, and

therefore, he has prayed that the interim order dated 11.8.08

deserves to be vacated.

11. I have heard the learned counsel for the parties and perused

the record.

12. There is no dispute that the centre of controversy revolves

around the allotment or the purchase of flat No.B-47 in

Upkar Co-operative Group Housing Society situated at plot

no.18, Mayur Vihar, Phase I Extension, New Delhi -91. It is

also not disputed that the flat in question was purportedly

purchased by the plaintiff from defendant no.1 vide registered

sale deed dated 9.5.2005 but what is pertinent is that

whether the defendant no.1 was competent to sell the flat to

the plaintiff or not. It is in this context that the averments

which are made by the plaintiff become important.

13. The plaintiff herself in various paragraphs of the plaint gives

an impression that she has been subjected to fraud by the

defendant no.1 as a consequence of which she has already

instituted a criminal complaint against defendant no.1 on the

basis of which an FIR is stated to have been registered for an

offence of cheating and using forged documents as genuine by

SHO PS Mayur Vihar. The averments which are made in the

plaint reads as under:-

"12. That thus defendant no.1 had fraudulently executed the sale deed dated 9.5.2007 in favour of the plaintiff, inspite of the fact that she was not having any title to the disputed property. The defendant no.1 had also failed to inform to the plaintiff about the material defect in her title of the disputed property and the fraud onteh part of defendants in connivance with one another, was thus revealed to the plaintiff in the month of December, 2006, when the plaintiff received a copy of the order dated 25.2.1999 of Registrar, Co- operative Societies. It is pertinent to point out herein that though on 11.5.2005 itself the plaintiff had informed the defendant no.2 as well as the Registrar, Co-operative Societies about the sale deed dated 9.5.2005 executed in her favour by defendant no.1 however, none of them had either informed or cautioned the plaintiff regarding the entitlement of defendant no.1 to the disputed property."

14. The defendant no.1 had executed a sale deed dated 9.5.2005

in favour of the plaintiff in spite of the fact that she was not

having any title to the disputed property. The defendant no.1

had also failed to intimate to the plaintiff about the material

defects in her title in respect of the disputed property and the

fraud on the part of the defendant no. 1 was revealed to the

plaintiff in the month of December, 2006, when the plaintiff

received a copy of the order dated 25.2.99 of the registered

Cooperative Societies. In the prayer clause, in para 21, the

plaintiff has made the following prayers, which read as

under:-

"(a) pass a decree declaring that the plaintiff is the bona fide purchaser of the disputed property and the sale deed dated 9.5.2005 executed by defendant no.1 in favour of the plaintiff in respect of the disputed property is an outcome of fraud committed by both the defendants in connivance with one another and against the plaintiff and the same is therefore, void; and

(b) pass a decree cancelling the said sale deed dated 9.5.2005;"

15. The contention which arises for consideration is as to whether

the interim order which is passed on 11.8.08 by this Court

restraining defendant no.2 from allotting the flat in question

to anybody including defendant no.3 ought to be continued or

not or whether the plaintiff is entitled to any stay so far as

the allotment of the said flat in respect of which she is

claiming to be declared as bonafides purchaser, should be

passed or not.

16. There is no dispute about the fact that in order to get interim

order, a party has to admittedly show that it has got prima

facie a good case in its favour. In the present case, the

question to be considered is whether the plaintiff has got

prima facie a good case in its favour which may prompt the

Court to pass an interim order in favour of the plaintiff qua

the flat and against the defendant. Certainly the plaintiff

cannot be said to be having prima facie case in this regard.

This is on account of the fact that one of the basic dictums of

law, is that nobody can pass a title better than what he has.

The plaintiff herself is admitting in para 12 of the plaint that

the defendant no.1 did not have the lawful and rightful title to

the flat in question and consequently, the plaintiff became a

victim of fraud. In the prayer clause, she herself is stating

that the sale deed dated 9.5.2005 which is purported to have

been executed by defendant no.1 in her favour should be

declared as null and void and in the prayer „B‟ she is

claiming that the said sale deed be cancelled.

17. If that be so, meaning thereby if the relief regarding

cancellation of the sale deed dated 9.5.2005 or a declaration

to the effect that the sale deed dated 9.5.2005 is void, one

wonders under what authority or on what basis the plaintiff

can be declared to be the owner of the flat in question much

less the bonafide owner.

18. In other words, the entire thrust of the plaint of the plaintiff is

that the defendant no.1 did not have the title to the property

and yet she sold the same in favour of the plaintiff and

consequently, she became a victim of fraud and yet she wants

to be declared as bonafide purchaser. These two things are

totally incongruent and cannot stand together. By no stretch

of imagination, it could be said that the plaintiff has got

prima facie case in her favour and accordingly, no injunction

order in favour of the plaintiff qua the flat in question can be

passed. The plaintiff is admittedly claiming another relief in

the suit that is regarding recovery of Rs.82 lacs which clearly

shows that even the plaintiff is clear that in case she fails to

get the first relief in the alternate, she may be given the

second relief. The grant of second relief claimed by the

plaintiff will be more in line with the averments made in the

pleadings, if at all she succeeds in proving her case.

19. The next question which arises for consideration is that if no

restrain order can be passed qua the flat in question, does it

deserve to be allotted to the defendant no.3 by the defendant

no.2? In this regard no doubt, the defendant no.3 has given

a long history of his membership and the subsequent

litigation resulting his membership starting from 1981 and

the culmination of the same resulting in the finding given by

Sh.S.M.Aggarwal, ADJ (Retired) that the defendant no.3 was a

lawful member of the defendant no.2/society but the Court is

not, in this proceeding, going to decide as to whether such

finding given by Sh.S.M.Aggarwal, ADJ (Retired) was lawful

and valid in the light of the fact that the defendant no.3 had

earlier lost in almost every forum right up to High Court.

20. Since defendant no.3 is not the plaintiff before this Court and

is not seeking any relief, it is not for this Court to adjudicate

as to the question of legality or validity of the membership of

the defendant no.3 nor it is open to this Court to suggest to

the defendant no.2 that it may or may not allot the said flat in

question to the defendant no.3. The only thing which this

Court can do is to vacate the restraint order which has been

passed by this Court on 11.8.08 restraining the defendant

no.2 from allotting the said flat in question to any person

during the pendency of the suit leaving the society free to

allot the said flat to any such member whom it considers to

be the lawful , valid and eligible to be allotted the flat in

accordance with law.

21. For the reasons mentions above, I feel that the interim order

dated 11.8.08 deserves to be vacated leaving the society

/defendant no.2 free to allot the said flat in such a manner

and to such a member as it may deemed fit and it is in

accordance with law.

22. Accordingly, IA 4897/2007 and IA 7083/2008 are dismissed

and IA 15209/2008 is allowed.

V.K. SHALI, J.

SEPTEMBER 20, 2010 RN