Smt. Sapna Jain & Anr. vs Dr. Abdul Sattar Khan Bharti
2012 Latest Caselaw 2508 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+                         RFA No. 96-97/2006


%                                                            18th April, 2012

SMT. SAPNA JAIN & ANR.                                          ..... Appellants
                                         Through :   None.


                    Versus

DR. ABDUL SATTAR KHAN BHARTI                                 ..... Respondent
                          Through :                  None.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J. (ORAL)

1. This case is on the Regular Board of this Court since 26.3.2012. On

17.4.2012 learned counsel appeared for the respondent. Today, however, in

spite of the matter having been passed over and being taken in the post lunch

session, no one appears for the respondent. I have, therefore, perused the

record and am proceeding to dispose of the appeal.

2. The challenge by means of this Regular First Appeal (RFA) filed under

Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment of the trial Court dated 9.1.2006 whereby the suit of the

appellants/plaintiffs was held to be not maintainable and hence dismissed [sic:

rejected] under Order 7 Rule 11 CPC.

3. The facts of the case are that the appellants/plaintiffs filed the subject

suit for declaration, cancellation, injunction and possession against the

defendant with respect to the suit property being flat No. E-404, Plot No. 54,

IP Extension, Delhi-92. It was pleaded that the flat belonged to Sh. Akhil

Jain, the late husband of appellant No.1/plaintiff No.1 as he had purchased

rights in the same under an agreement to sell dated 25.4.1996. A general

power of attorney was also said to be executed in favour of plaintiff No.1. It

was pleaded that in about the year 2000 the husband of plaintiff No. 1, namely

Sh. Akhil Jain came in contact with the defendant who started making Sh.

Akhil Jain drink heavily, whereby Sh. Akhil Jain lost control of his senses

under the influence of liquor. It was pleaded that Sh. Akhil Jain was

hospitalized in Delhi under mysterious circumstances by an unknown person

on 11/12.4.2004. It was further pleaded that appellant No.1/plaintiff No.1 had

differences with her husband who turned her out of the house in May, 2001

and when she came back, she found that the defendant had forged and

fabricated certain documents and taken possession of the flat on the basis of

the said documents. It is pleaded that the defendant must have taken

advantage of the drinking habits of Sh. Akhil Jain and must have got the

documents signed from him or otherwise the documents would be forged and

fabricated. It was pleaded that the wrongly forged and fabricated documents

being an agreement to sell, power of attorney, etc are wholly illegal. The

other usual documents being the indemnity bond, possession letter, affidavit

etc. were also signed and which are also forged and fabricated. It was further

pleaded that the suit property was initially sold by Sh. Akhil Jain for

`18,00,000/- vide agreement to sell dated 25.3.2003 and, therefore, on

7.4.2003 there was no question of again selling the suit property for 1/4th of

the amount. The appellants/plaintiffs pleaded to have filed a criminal

complaint with the Police Station, Mandawali. It was, therefore, pleaded that

the defendant had no right in the suit property and hence the reliefs of

declaration, injunction, etc. were claimed in the suit plaint.

4. The defendant on being served, filed an application under Order 7 Rule

11 CPC seeking rejection of the plaint stating that the suit was liable to be

dismissed because the appellants had concealed material facts. It was pleaded

that the defendant was a bona fide purchaser of the suit property and that

appellant No.1/plaintiff No. 1 had disputes with her husband since 1989 till

his death. It is also pleaded that the suit was time barred and the cause of

action had arisen in the year 2000-01, however, the suit was filed on 2.7.2005.

It was further pleaded that Sh. Akhil Jain did not have any son who has been

arrayed as plaintiff No. 2 in the suit. In reply to the application under Order 7

Rule 11 CPC the appellants/plaintiffs stated that the defence which was taken

is a defence which could only have been taken during the trial in the suit and

the plaint cannot be rejected on the ground merely because of the subject

application under Order 7 Rule 11 CPC.

5. During the course of hearing of the application under Order 7 Rule 11

CPC the defendant filed another application under Section 151 CPC pleading

further concealment of facts because appellant No.1/plaintiff No.1 had filed a

divorce petition stating that she was living separately since 1999 and,

therefore, it was pleaded that the case of appellant No.1 being turned out from

the house in May, 2001 is false. It was pleaded in this fresh application under

Section 151 CPC that in view of judgment of the Supreme Court in the case

of S.P. Chengalvaraya Naidu (dead) by LRs v. Jagannath (dead) by LRs &

Ors., 1994 (1) SCC 1, the suit should be dismissed.

6. The trial Court has rejected the plaint by making the following

observations.

"It is the case of the plaintiff no.1, himself, that she had differences with her husband and had been living separate since 1999 (as admittedly stated by her in the divorce petition filed by her). She had also lodged a complaint against her husband at P.S. Shahganj, Agra in

the year 2001. She was living with her son plaintiff no.2 at her father's house at Agra and had also obtained divorce from the deceased Akhil Jain in the divorce petition filed by her at Agra. This fact of having obtained divorce, had been concealed by her.

A bare reading of the plaint shows that she had filed the present suit as wife/widow of the deceased Akhil Jain, hence it is seen that she had concealed the material facts from the court.

All that aside, it is to be seen that it is the case of the plaintiffs, themselves, that the suit property No.E- 404, Plot No.54, IP Extension, Delhi-92 was the self acquired property of deceased Akhil Jain. If that be so, no other person, including the plaintiffs would have any right, title or interest in the said property during the life time of Akhil Jain, i.e. during his lifetime, Akhil Jain was free to dispose off his property as he pleased. He could have bequeath/gifted/sold/transfer it to anyone during his lifetime, thus, depriving his LRs to any right, title or interest in the suit property.

It is the case of the plaintiff, themselves, that alleged transaction of sale/purchase between Akhil Jain and the defendant took place somewhere in April, 2003. Though, the plaintiffs have not given date of death of Akhil Jain, it is stated by plaintiff no. 1 herself, that he was hospitalized in mysterious circumstances in November 2004 in Delhi and hence it is presumed that he had died after this date. Hence, for a period of one and a half year, after the impugned transaction Akhil Jain was alive. After the alleged transaction entered into by him, he could have challenged the same if he so desired i.e. it is seen that the said property was the self acquired property of Akhil Jain. He sold the same to the defendant vide registered documents namely Agreement to sell and purchase dt. 7.4.2003, GPA, possession letter, affidavit, surrender deed, letter of changing name of nominee,

letter of possession, Will, receipt etc,. which are all routine documents executed when sale of impugned property takes place in Delhi. It was held by the Hon'ble of Delhi in case of Ajit Narain vs. Aarti Singh & Ors - 81 (1999) DLT 355 and also Asha M. Jain vs. Canara Bank 94(2001) DLT 841 (DB) that registration of documents prima facie indicates that what was intended was sale of property.

Only he (Akhil Jain) had a right a right to seek cancellation of these documents, it, in his opinion the same were forged and fabricated or if the said signatures had been obtained under any fraud or undue influence. Only he could have filed the suit himself for cancellation of these documents that his signatures had been obtained by fraud. There is no privity of contract between the plaintiffs and the defendant. In view of the fact that it was the self acquired property of the deceased Akhil Jain, the plaintiff cannot claim any right to file such a suit for cancellation of these documents whereby, the property had been disposed off by Akhil Jain during lifetime.

For the aforesaid reasons, I am of the opinion that the suit of the plaintiffs, is not maintainable. The application under Order VII rule 11 CPC is thus, allowed. The suit of the plaintiff is accordingly dismissed. File be consigned to Record Room."

7. A reading of the aforesaid paras shows that the trial Court held that

since the appellants/plaintiffs were guilty of concealment of facts that

appellant No.1 was living separately since 1999 and not 2001, therefore, the

suit plaint should be rejected. The trial Court has also held that since the

property belonged to Sh. Akhil Jain, he was perfectly competent to dispose of

the same during his life time. The trial Court further holds that the

registration of the documents in favour of defendant is prima facie indication

that the title in the property was transferred by late Sh. Akhil Jain to the

defendant and only Sh. Akhil Jain could have a right to cancel the documents.

8. In my opinion, the trial Court has fallen into a clear cut error in

rejecting the plaint under Order 7 Rule 11 CPC on the grounds that there is

concealment of facts and that registration of the documents is prima facie

proof of title. The trial Court has also erred in holding that only Sh. Akhil

Jain had the right to seek cancellation of the documents. Dismissal of suit on

concealment of facts can only be in an extreme case and the present case is

not such a case.

In my opinion, once the appellants/plaintiffs laid out a case that the

documents were forged and fabricated by the defendant or in the alternative

were got signed under the influence of liquor, the case as raised contained

disputed question of facts which required trial. The fact that the

appellants/plaintiffs may have a weak case which they may not be able to

establish during trial, cannot be a sufficient ground for rejecting the plaint

under Order 7 Rule 11 CPC. A person who fails to prove his case during

trial, of course will fail at the stage of final arguments, however, merely by

observing that registration of documents shows prima facie evidence to

transfer title, cannot mean that suits involving disputed question of facts can

be dismissed in a summary manner by reference to the provision of Order 7

Rule 11 CPC. The trial Court has also erred in holding that only Sh. Akhil

Jain had right to cancel the documents, inasmuch as, if the appellants

succeeded in proving the case that the said documents were got signed under

the influence of liquor or were forged and fabricated, the appellants/plaintiffs

being the legal heirs of Sh. Akhil Jain could not be denied the right/cause of

action to challenge such documentation. I am not commenting upon the

merits of the matter and which respective cases on merits will be decided at

an appropriate stage in the suit.

9. In view of the above, the present appeal is accepted and the impugned

judgment dated 9.1.2006 is set aside, leaving the parties to bear their own

costs. Trial Court record be sent back.

VALMIKI J. MEHTA, J.

APRIL 18, 2012 AK