Mahender Malik vs M.S. Saluja & Ors.
2012 Latest Caselaw 440 Del

.*        HIGH COURT OF DELHI: NEW DELHI

                                    Judgment pronounced on: 23.01.2012

+ I.A. No.13110/2011 & I.A. No.14390/2011 in CS (OS) No.2013/2011

       MAHENDER MALIK                                       ..... Plaintiff
                  Through                 Mr. Ravi Gupta, Sr. Adv. with
                                          Mr. Mohit Gupta, Ms. Vidhi Gupta
                                          and Mr. Rahul Bakshi, Advs.

                     Versus

       M.S.SALUJA & ORS                                     ..... Defendants
                     Through              Mr. Rajeeve Mehra, Sr. Adv. with
                                          Mr. S.K.Chaudhry, Adv. for D-1.
                                          Ms. Neha Kapoor, proxy counsel for
                                          Mr. N. Waziri, Adv. for D-2 to D-4.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The plaintiff filed the suit on the allegations that the defendant No.1 along with defendants No.2 to 4 have dispossessed the plaintiff from the property bearing No.C-1 (old No.WZ-900/1) ad measuring 92 sq. yds. out of Khasra No.568/1 and 568/2 min. situated in the area of village Tihar abadi known as Fateh Nagar, Block-6, New Delhi (hereinafter referred to as the suit property). In this suit the plaintiff is seeking decree of mandatory injunction directing the defendant No.1 to remove his locks and the decree of permanent injunction for

restraining the defendants from interfering with use and enjoyment of the suit property.

CASE OF THE PLAINTIFF

2. The plaintiff states that he had purchased the suit property from its previous owner Sh. Jai Prakash S/o Late Sh. Nanhu Ram, Resident of House No. 196, Village Tihar, New Delhi for a consideration of Rs.27 lac vide Sale Deed dated 14.7.2011, bearing registration No. 18318 in Book No. 1, Vol. No. 18930 on pages Nos. 27-32 on 22.7.2011. According to the plaintiff, at the time of the sale of the suit property the vendor Sh. Jai Prakash, claimed that he is the son of Sh Late Nanhu and that upon his death, the said property devolved upon Sh. Nanhu Ram's widow, six sons and three daughters, who executed a General Power of Attorney to sell, receipt etc. in favour of Sh. Jai Prakash on 4.2.1988 and now he is in possession of the said property and the owner. It was further represented by the vendor Sh. Jai Prakash that the suit property was turned into residential use.

3. After the purchase of the suit property, plaintiff started renovation on the same on 13.8.2011 with help of hired laborers/masons. The plaintiff got the waste material lying in the suit premises removed and on 15th and 16th August 2011 foundation was raised erecting two rooms in the rear portion.

4. The Plaintiff states that on 16.8.2011 at about 5pm the plaintiff left for his house and thereafter the defendant No. 1 came with some anti-social persons and snatched the key of the main gate from the mason/labourers and removed plaintiff's lock and instead put his own

lock on the gate of the suit property. Since, the labourers did not have plaintiff's phone number therefore, plaintiff could not be informed.

5. The plaintiff was informed only on 17.8.2011 when about 10.30 am he reached the suit property to supervise the work. The plaintiff immediately made a call to the PCR and informed about the incident. At about 11.30 am the local police including defendant Nos. 3 & 4 reached the spot and asked the plaintiff to accompany to the Hari Nagar police station. But on reaching the police station the plaintiff was asked to hand over his licensed revolver without any acknowledgement of the same and was kept confined at the police station till 7.30 pm.

6. Plaintiff avers that in the police station defendant Nos. 3 & 4 refused to see the registered sale deed and instead asked him to produce the vendor Sh. Jai Prakash and the attesting witness of the said sale deed. Whereas defendant No. 1 was not even asked to show his legal right, power or authority for doing trespass in the settled and lawful possession of the plaintiff in the suit property.

7. Plaintiff states that the suit property is very much in his possession as his construction materials like cement bags, wooden staircase are lying at the suit property.

8. It is further stated that the defendant No. 1 has no legal right over the property and the defendant No.1 in connivance with defendant Nos. 2 to 4 has fabricated documents to lay false claim over the suit property.

9. It is submitted by the plaintiff that since the intention of defendant No.1 is malafide hence, the plaintiff wants to refrain

defendant Nos. 1 to 4 for doing such illegal activities. The plaintiff states that he has reasons to believe that the defendant No.1 in connivance with defendants No. 2 to 4 may sell the said property to some third person. Hence, to avoid multiplicity of proceedings the plaintiff filed the present suit for restraining the defendants from selling, alienating, transferring as well as creating ay third party right in the suit property.

10. The suit along with interim application being IA No.13110/2011 under Order XXXIX Rule 1 and 2 CPC was listed before Court on 19.08.2011 when after relying upon the averments made in the plaint, the court passed the interim order directing the defendant No.1 to maintain the status quo with respect to title, possession and construction of the suit property. CASE OF THE DEFENDANTS

11. Upon service, the defendant No.1 filed the application being IA No.14390/2011 under Order XXXIX Rule 4 CPC for vacating interim order obtained by the plaintiff. The defendant states that the plaintiff has hatched a criminal conspiracy with Sri Jai Prakash Sharma by fabricating the documents such as agreement to sell, power of attorney etc. which are false.

12. As per the defendants, the sale deed which the plaintiff is relying upon is totally a false, forged and fabricated document and the story of sale and payment consideration is totally false.

13. The bank account of the plaintiff reveals that no consideration in respect of the transaction for alleged sale of the property has been

received and the claim of ownership by the plaintiff is only for illegal purpose and ulterior motives.

14. The defendant No.1 submits that even upto the date of filing of this suit, the consideration of the said property had not been passed on between the alleged vendor and the vendee. The defendant states that only after an application under section 156(3) of the Code of Criminal Procedure, 1973 had been filed that the plaintiff and his vendor tried to make up a case of passing a transaction by encashment of a cheque on 25.08.2011.

15. The defendant No.1 states that the cheque in question was handed over on 14.07.2011. Had it been a genuine sale deed the same would not have been pending for a period of 43 days upto 25.08.2011.

16. The defendant No.1 also states that the plaintiff has obtained an ex-parte order by misrepresentation and on the basis of false facts.

17. In reply to the application for vacation of order, it is stated by the plaintiff that the defendant No.1 has forcibly locked the suit property and committed criminal offence. It is denied by the plaintiff that he has acted in any criminal conspiracy. According to the plaintiff, he has purchased the suit property for a valuable consideration and possession of the plaintiff was peaceful until the defendant No. 1 forcibly locked the premises. It is specifically reiterated that the sale deed dated 14.07.2011 is genuine and the consideration is also valuable consideration. On the other hand the defendant's documents are unregistered and hence void ab initio.

18. I have heard the learned counsel appearing on behalf of both the parties, who have made their rival submissions. Ms. Neha

Kapoor, counsel appearing on behalf of defendant Nos.2 to 4 has also made her submissions.

19. It is pertinent to mention here that at the time of passing the interim orders, the court also appointed the Local Commissioner in I.A. No.13111/2011 to visit the suit property and to verify as to who is carrying out the renovation work and under whose instructions the same is being carried out and who is in the possession of the property.

20. The Local Commissioner filed her report on 30.08.2011 alongwith photographs of the suit property. The relevant extract of her report are read as under :

"5. That then the photographs of the suit premises were clicked and the same have been attached as Annexure 8. That then in the meantime, Mr. M.S. Saluja arrived claiming the suit property of his own. That then I asked Mr. M.S. Saluja to open the locks as the suit property was locked by him and all the four locks were opened by Mr. M.S. Saluja.

6. That then I proceeded to inspect the suit premises from inside and I found some demolition had taken place earlier and obsolete stuff and building material (Bricks and Badarpur) was lying. The demolition was done under the instructions of Mr. Mahender Malik and the building material was stalked there by him and same is accepted by Mr. M.S. Saluja. I also came across the labour who also supported the fact that he has been working for Mr. Mahender Malik since 13/8/2011.

7. That then few neighbours of Mr. M.S. Saluja supported and stated the fact the suit property belongs to Mr. M.S. Saluja, Mr. Param Jeet Singh resident of

C-112 Fateh Nagar also supported the same fact. I also met Mr. Jai Prakash who claims to have sold the suit premises to Mr. Mahender Malik."

21. Let me now deal with the rival claims of the parties in respect of the suit property in question.

22. Claim of titles by the plaintiff

The plaintiff claims to have purchased the suit property vide an alleged Sale Deed dated 14.07.2011. This sale deed has been allegedly executed on the basis of the documents such as Agreement to Sell, Power of Attorney, Receipt etc. each dated 04.02.1998 and on the basis of these titles the present suit has been filed by the plaintiff who has also obtained the ex parte interim order from Court.

23. Claim of titles by defendants

The defendant No.1 has claimed the ownership of the suit property vesting in the defendant No.1 and his other brothers and sisters as well as mother as legal heirs of Late Sh. Waryam Singh. The case of defendant No.1 is that the suit property was earlier owned by one late Sh. Nanu Ram. He left behind the following legal heirs:

              i)     Smt Savitri Devi     -    Wife

              ii)    Sh Jai Ram           -    Son

              iii)   Sh Jai Bhagwan       -    Son

              iv)    Sh Jai Gopal         -    Son

              v)     Sh Jai Kishan        -    Son

              vi)    Sh Jai Prakash       -    Son



               vii)   Sh Jai Kumar      -     Son

              viii) Smt Jaiwanti       -     daughter

              ix)    Smt Jaimala       -     daughter

              x)     Smt Jai Devi      -     daughter

24. After the death of Sh. Nanu Ram, family settlements dated 25.07.1985 and 05.07.1988 were executed whereby the property bearing No.C-1 and C-4 Sharma Lane, Fateh Nagar, New Delhi devolved upon Sh Jai Gopal Sharma who sold the C-1 property i.e. the suit property to Sh. Mela Singh vide registered Power of Attorney, registered receipt, registered Will, Agreement to Sell, Indemnity bond all dated 09.06.1989.

25. The other property bearing No.C-4 which also devolved upon Sh Jai Gopal with the suit property was also sold by Sh Jai Gopal simultaneously during the same period to one Sh. Darshan Lal and Sh Narender Kumar who subsequently sold the said property to Sh Kesar Singh who is still in possession of the said property. This also proves the implantation of the aforesaid family settlement.

26. Sh Mela Singh sold the suit property to Sh Waryam Singh (now deceased) father of defendant No.1 vide G.P.A., Agreement to Sell, Receipt and Will etc. on 02.08.1989. Sh Waryam Singh expired on 29.04.2008. The property with household item was lying locked as per the case of the defendants.

27. After filing suit, the defendant No.1 filed a criminal complaint against the plaintiff. The FIR No.374/2011 was registered by the

Police Station Hari Nagar only on directions of learned Metropolitan Magistrate on the application under Section 156(3) Cr.P.C. filed by the defendant No.1. Thereafter, the I.O. in the FIR No.374/2011 conducted the investigation. This Court directed defendants 2 to 4 to file the status report. The defendants 2 to 4 have filed two status reports dated 31.10.2011 and 10.01.2012 which contain the details of investigation conducted by the defendant Nos.2 to 4 in relation to the original documents produced by defendant No.1 and genuineness thereof.

28. The relevant extract of the first status report dated 31.10.2011 are as under :

"By virtue of Deed of Family Settlement dated 05.07.1988 that property in question i.e. C-1, Sharma Lane, Fateh Nagar alongwith property No.C-4, Sharma Lane, Fateh Nagar, Delhi will go to the possession of Sh. Jai Gopal Sharma. On the basis of this Deed of Family Settlement Sh. Jai Gopal Sharma, executed GPA in favour of Sardar Mela Singh in respect of property in question C-1, Sharma Lane, Fateh Nagar, Delhi. This document dated 09.06.1989 was found registered in the office of Sub-Registrar, Noida, UP. Sh. Jai Gopal Sharma had also executed the Agreement to Sell, Affidavit, Surety Bond, Receipt and the Will in favour of Sh. Mela Singh. The receipt dated 09.06.1989 and the Will of the same dated was also found registered in the office of Sub-Registrar, Kashmiri Gate, Delhi. The stamp vendor Sh. Mukesh Kumar bearing License No.266 of Sub-Registrar, Kashmiri Gate was examined and confirmed the selling papers to Sh. Jai Gopal Sharma on 09.06.1989.

The witness Sh. Multan Singh, Advocate 129, Lawyers Chamber, Patiala House, New Delhi-1100 01 mentioned on the Deed of Family Settlement dated 05.07.1988 has been examined and he confirms that the above Deed of Family Settlement dated 05.07.1988 was executed in his presence. He had also put his signature on it. The stamp vendor Sh. Vinod Kumar sit outside office of the Sub-Registrar was also examined and confirmed selling the papers to Sh. Mela Singh on 02.08.1989.

On the other hand, the photocopy of chain of documents provided by Sh. Mahender Malik was verified. Sh. Mahender Malik purchased this property from Sh. Jai Prakash Sharma who was claiming his ownership over this property on this basis of GPA dated 04.02.1988, Agreement to Sell, Affidavit, Possession Letter and Receipt allegedly executed by Sh. Jai Bhagwan, Jai Gopal, Jai Kumar, Jai Kishan, Jai Ram sons of Nanu, Smt. Savitri Devi w/o nanu and Jai Devi, Jaiwanti, jai Mala daughters of Nanu. Upon verification, it was revealed that these documents were attested by two witnesses namely Ram Lal S/o Fateh Chand and Ram Phal S/o Jai Lal both R/o Village Tihar, Delhi. During investigation, it was revealed that Ram Lal S/o Fatesh Chand expired in the year 1985, whereas, these documents were executed on 04.02.1988. other attesting witnesses Ram Phal S/o Jai Lal was found a non existing identity, so far, because Sh. Jai Lal S/o late Sh. Jeet Ram has no son by the name of Ram Phal. It is alleged that on the basis of these documents Jai Parkash executed a Sell Deed on 14.07.2011 in favour of Sh. Mahender Malik but the mode of payment mentioned in this sell deed is creating doubt. As per Sell Deed a cheque No.043137 of Canera bank of Rs.4 lac (Four) lacs dated 14.07.2011 was handed over to Jai parkash at the time of execution of sell deed. Verification from Canera Bank, Paschim Vihar,

Delhi at was revealed that this cheque was not issued on 14.07.2011 but it is dated 04.07.2011. this cheque was encashed on 25.08.2011. It is pertinent to mentioned that the dispute over this property came to knowledge of local police on 16.08.2011 and this cheque was presented in the Bank only after the date i.e. 22.08.2011 when enquiry was made from Jai Parkash.

Regarding remaining amount of Rs.23 lac (Rupees Twenty Three Lacs) neither Mahender Malik has produced any satisfactory proof to show the handing over this amount to Jai parkash nor Jai Parkash has till the date produced any satisfactory proof to show that he received this amount. Further, a false fact was mentioned in this Sell Deed executed by Sh. Jai Parkash that all the executants of the GPA dated 04.02.l1988 are alive. Upon verification it was revealed that the executants namely Smt. Savitra Devi, Jai Gopal and Jai Bhagwan expired prior to execution of this Sell Deed dated 14.07.2011."

29. In the status reports, it was mentioned that the documents such as Sale Deed and other documents i.e., G.P.A., Agreement to Sell etc. used for registering the Sale Deed and possession letter are forged and fabricated.

30. Learned Senior counsel appearing on behalf of the plaintiff has argued that the status report filed by defendant Nos.2 to 4 cannot be accepted as the true finding arrived by the police, therefore, no advantage would go to the defendants in view of the reports submitted by the police.

31. To some extent, I agree with the learned Senior counsel for the plaintiff that merely on the basis of status report, the entire matter can

not be decided. However, the facts of the matter is that defendants No.2 to 4 have comprehensively examined each and every document filed by the parties. Not only that, the statements of the witnesses were also recorded on the basis of the documents produced. One crucial fact of the matter is that the plaintiff claims to have purchased the suit property by registering the sale deed dated 14.07.2011 which has been executed on the basis of the documents, i.e. the Agreement to Sell, Power of Attorney, Receipt and possession letter etc. which are dated 04.02.1998. The abovementioned documents were witnessed by two witnesses namely Ram Phal and Ram Lal.

32. The first witness namely Ram Phal, son of Sh. Jai Lal, never existed as per report and other witness, namely, Sh. Ram Lal, son of Sh. Fatah Chand, had expired three years prior to alleged execution of the said papers. Copy of the death certificate of Ram Lal was produced in the Court on 25.01.1985. The statement of his wife was also recorded by the I.O. in this regard.

33. The plaintiff sought two adjournments to verify the same when these documents were confronted before him during the course of the hearing. However, neither an answer came from the plaintiff's side about the death of Ram Lal on 25.01.1985 nor any information about the second witness Ramphal. In case both the witnesses were not in existence on the date of execution of the said documents and particularly one of the witnesses Ram Lal had already expired three years prior to the execution of documents, then it is not possible to believe that the said documents are genuine documents. It is not in

dispute that the sale deed was registered on the strength of these very documents. Infact, after having come to know about the death of Ram Lal, the plaintiff is almost become speechless and did not argue the case on this aspect.

34. It is also pertinent to mention here that the stamp vendor who had issued the stamp papers is also reported to have expired.

35. The next important aspect of the matter is that as per the sale deed, the total consideration amount was Rs.27 lac and Rs.23 lac were paid in cash and an amount of Rs.4 lacs was paid by the plaintiff vide cheque dated 14.07.2011. The plaintiff admittedly did not produce any evidence on record or before the police to establish the cash of Rs.23 lacs. The cheque of Rs.4 lacs is dated 14.07.2011 but, as per the evidence produced by the plaintiff before the police, the sale deed was actually executed on 04.07.2011. The cheque was cleared on 25.08.2011 after the date of filing of the police complaint by defendant No.1 and obtaining the ex parte interim order by the plaintiff from this Court on 19.08.2011.

36. The sale deed recites the suit property as a plot whereas it was consisting of two rooms, kitchen, bathroom and a latrine.

37. Mr. Rajeeve Mehra, learned Senior counsel appearing on behalf of the defendant No.1 has also stated that in para No.9 of the sale deed, it is specifically mentioned that all the executants of the General Power of Attorney are still alive and they have not cancelled the General Power of Attorney till date. But, on the date of execution of the General Power of Attorney, the three executants including Smt. Jai

Devi, mother of Jai Gopal, Jai Bhagwan, Jai Kishan and Jai Ram had already expired. According to him, the signature of Jai Gopal has also been forged in the documents.

38. Therefore, from the above said facts and circumstances, prima facie it appears that the said documents produced by the plaintiff in the Court are not the genuine documents and he was never handed over the possession of the property, as in the sale deed, the suit property is shown as a plot. He clearly is a trespasser and cannot claim his ownership on the strength of a sale deed as the same was registered on the basis of documents which are not genuine. Even the alleged possession letter was witnessed by Sh. Ram Lal who expired three years prior to the date of giving alleged possession of the suit property. The conduct and collusiveness of the plaintiff is proved from the ways of payments as mentioned in the sale deed and it was a common conspiracy of Jai Parkash and plaintiff in order to grab the suit property as it was locked for the last many years by the defendant No.1. It is not necessary to discuss the other submissions with regard to the validity of the documents of the defendant No.1 as it is the plaintiff who has come before the court and obtained ex-parte orders on the basis of documents which are not genuine.

39.    (i)    In the pronouncement reported at 2000(4) SCALE 692,
       Rajappa       Hanamantha        Ranoji     vs.      Sri   Mahadev

Channabasappa & Ors., the Supreme Court held that such tendency deserves to be taken serious note of and curbed by passing appropriate orders including imposition of exemplary costs. In this behalf , the court observed thus:-

"13. It is distressing to note that many unscrupulous litigants in order to circumvent orders of Courts adopt dubious ways and take recourse to ingenious methods including filing of fraudulent litigation to defeat the orders of Courts. Such tendency deserves to be taken serious notices of and curbed by passing appropriate orders and issuing necessary directions including imposition of exemplary costs. As noticed, despite eviction order having become final nearly a quarter century ago, respondent no. 1 still could not enjoy the benefit of the said order and get possession because of the filing of the present suit by the brother of the person who had suffered the eviction order. Under these circumstances, we quantify the costs payable by the appellant to respondent no. 1 at Rs.25,000/-"

(ii) In the case of Chengalvaraya Naidu (Dead) by LRs Vs. Jagannath (Dead) by LRs. & Ors. AIR 1994 SC 853 the plaintiff was guilty of concealment of a material document and it was held that more often than not the process of the court is being abused and is utilised as a convenient lever to retain illegal gains indefinitely. It was held that a person whose case is based on falsehood has no right to approach the court and deserves to be summarily thrown out at any stage of the litigation. The Supreme Court observed as follows:-

"7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with

a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loandodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.

(iii) Concealment of material facts or documents or otherwise making any misrepresentation in the Court has been seriously viewed by the Courts. In this connection, it will be relevant to refer to the following observations made by the Supreme Court in Chandra Shashi v. Anil Kumar Verma, reported in JT 1994(7) SC 459:

"In this case, the respondent had filed in Court a fabricated document to oppose the prayer of his wife seeking transfer of a matrimonial proceeding from Delhi to Unnao. The Court suo motu took contempt action against the respondent.

The Court has observed in paras 1, 2 & 8 as under:

"1. The stream of administration of justice has to remain unpolluted so that purity of Court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of Court's environment; so also to enable it

to administer justice fairly and to the satisfaction of all concerned.

2. Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.

8. To enable the Courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, pre-verification and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any Court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail. People would have faith in Courts when they would find that satyamev jayate (truth alone triumphs) is an achievable aim there; or yatro dharmasto jaya (it is virtue which ends in victory) is not only inscribed in emblem but really happens in the portals of Courts."

The Court held that the husband and committed contempt of Court and awarded him two weeks sentence of imprisonment.

40. All these decisions referred above are applicable to the facts of the present case. I am of the view that it is not only a new creed of litigants who have cropped up having no respect for truth and these type of litigants are villains to the pure foundation of justice by showing their image as Heros but they should not be allowed to become Heros, let them remain as villains as they are disturbing the system of justice.

41. Considering the overall facts and circumstances of the case, I am of the considered view that the interim order has been obtained by the plaintiff on the basis of false documents and the same is liable to be vacated. Hence, the application bearing I.A. No.13110/2011 (under Order XXXIX, Rules 1 & 2) filed by the plaintiff is dismissed and the application bearing I.A. No.14390/2011 (under Order XXXIX, Rule 4 CPC) filed by defendant No.1 is allowed. After seeing the conduct of the plaintiff, he is burdened with cost of Rs.1 lac to be deposited by him with the Delhi High Court Advocates' Welfare Fund within two weeks from today.

42. Both applications are disposed of.

CS(OS) No.2013/2011

43. List the matter before Joint Registrar on 19.03.2012 for completion of pleadings and admission/denial of documents.

MANMOHAN SINGH, J.

JANUARY 23, 2012/ka