Bharathi Ramakrishnan & Anr. vs Ravi Kanta & Anr.
2012 Latest Caselaw 6378 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+       I.A. No.20494/2011 (by the plaintiffs u/O XXXIX
            R 1 and 2 CPC) in CS(OS) No.3202/2011

                                      Reserved on:        19.07.2012
                                      Date of decision:   31.10.2012

IN THE MATTER OF:
BHARATHI RAMAKRISHNAN & ANR.                      ..... Plaintiffs
                  Through: Mr. Nimish Chib, Advocate with
                  Mr. Ravin Rao and Mr. Sunmit Rajput, Advs.


                   versus


RAVI KANTA & ANR.                                      ..... Defendants
                         Through: Mr. S.P. Singh, Advocate for D-1.


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.

1. The present application for interim orders has been filed by

plaintiffs in the accompanying suit for declaration simpliciter against

the defendants, praying inter alia that the decree dated 29.05.2009

passed by the learned ACJ/ARC(West), Tis Hazari, Delhi, in a suit for

possession instituted by the defendant No.1 against the defendant

No.2, registered as Suit No.524/2008, be declared as null and void.

2. The factual matrix of the case is that defendant No.2 who

is the husband of the plaintiff No.1 and the father of plaintiff No.2, was

the owner of the suit premises, i.e., MIG Flat No.C-2A/241-A, Pocket

16, Janak Puri, New Delhi. Defendant No.2 had sold the suit premises

to the defendant No.1 for a total sale consideration of `10 lacs by

executing a Sale Deed in her favour on 25.02.2008. Within two days

from the date of execution of the Sale Deed, a Rent Agreement dated

27.02.2008 was executed by the defendant No.1 in favour of the

defendant No.2 in respect of the very same premises. Under the

aforesaid Rent Agreement, which is a registered document, defendant

No.1 had agreed to let out the suit premises to the defendant No.2 on

a monthly rent of `14,000/-, for a limited period of three months,

commencing w.e.f. 27.02.2008.

3. It is the case of the plaintiffs that there exists a

matrimonial dispute between the plaintiff No.1 and the defendant No.2

and after converting the suit premises from leasehold to freehold on

18.02.2002, defendant No.2 had clandestinely proceeded to sell the

same to the defendant No.1. It is averred in the plaint that the suit

premises had been purchased by the defendant No.2 from moneys

received from ancestral property belonging to him at his native place

in the State of Kerala, and further, that the plaintiff No.2 had paid a

sum of `12,370/- to the defendant No.2 for purposes of conversion of

the suit premises from leasehold to freehold. However, without taking

the plaintiffs into confidence, defendant No.2 had sold the suit

premises to the defendant No.1, which fact came to their knowledge

on 12.12.2009 when they were sought to be dispossessed by the

defendant No.1. It was at that time that the plaintiffs came to know

that defendant No.2 had suffered a judgment and decree dated

29.05.2009 in Suit No.524/2008, a civil suit for possession that was

instituted by the defendant No.1 against defendant No.2 in the trial

court. The plaintiffs claim that only then did they come to know that

the defendant No.1 had filed an Execution Petition No.56/2009 before

the trial court, for execution of the aforesaid judgment and decree

dated 29.05.2009, wherein warrants of possession dated 20.11.2009

had been issued.

4. It is averred in the plaint that immediately upon gaining

knowledge of the aforesaid legal proceedings that had been initiated

by the defendant No.1, the plaintiffs had filed an application under the

provisions of Order XVI Rule 22 CPC for stay of execution of the

warrants of possession. Vide order dated 03.03.2011, the court had

turned down the objections that were raised by the plaintiffs to the

effect that the suit premises had been purchased from out of ancestral

funds, i.e., the agricultural income yielded by the land situated at

Kerala and it was held that the same was a self-acquired property and

that defendant No.2 (Judgment Debtor in the execution proceedings)

had the right to dispose of the same as per his wishes.

5. Aggrieved by the dismissal of their application/objections,

the plaintiffs herein had preferred a civil revision petition, registered as

CRP No.53/2011. However, on 19.04.2011, counsel for the plaintiffs

had sought leave to withdraw the civil revision petition while reserving

the right of the plaintiffs to seek recourse to any other remedy that

would be available to them in law, including filing a civil suit for

declaration. As a result, the aforesaid petition was dismissed as not

pressed, while granting a period of two months to the plaintiffs for

them to avail of any other remedy that may be available to them in

law. It was further directed that during the said period, the decree of

possession that had been obtained by the defendant No.1 (respondent

No.1 in the civil revision petition) would not be executed against them.

6. After a period of eight months, the plaintiffs had filed the

present suit on 15.12.2011. Alongwith the aforesaid suit, the present

application was filed by the plaintiffs seeking a stay of the operation of

the execution order dated 05.08.2011 passed in Execution Petition

No.56/2009. On 19.12.2011, when the suit was listed for admission,

an ex-parte ad interim injunction was granted in favour of the

plaintiffs, directing that no coercive action would be taken against

them in the aforesaid execution proceedings. The aforesaid order that

is continuing to operate till date, is opposed by the defendant No.1

who seeks its vacation.

7. Learned counsel for the plaintiffs had submitted that since

the year 1983, the plaintiffs have remained in continuous

uninterrupted possession of the suit premises and due to a

matrimonial discord between the plaintiff No.1 and the defendant

No.2, he has been shying away from his responsibilities and has not

been residing therein since the year 1992. It was canvassed that the

suit for possession that was instituted by the defendant No.1 against

the defendant No.2 was a collusive suit and was intended to illegally

dispossess the plaintiffs and that in fact, defendant No.1 is a neighbour

living in a property adjacent to the suit premises and she had joined

hands with the defendant No.2 to obtain a collusive decree against

them.

8. Learned counsel for the plaintiffs had submitted that the

entire sale transaction had been undertaken by the defendants in a

clandestine fashion, behind the back of the plaintiffs and that the

defendant No.2 was well aware of the fact that he was not entitled to

sell the suit premises, the same not being his self-acquired property.

He urged that it was for this reason alone that the defendant No.2 had

executed the sale deed in favour of the defendant No.1 in such a

secretive manner and only after selling the suit premises, did he

dispatch a letter dated 06.03.2008 from Kerala to the plaintiff No.1

with copies marked to plaintiff No.2 and the defendant No.1, informing

them about the factum of sale.

9. It was next submitted by learned counsel for the plaintiffs

that a family understanding and a scheme of arrangement had been

entered into between the plaintiffs and defendant No.2, whereunder it

was agreed by the parties that the suit premises, that had been

purchased from periodic infusion of moneys from the ancestral

property of the defendant No.2 and on receipt of financial assistance

from other family members, would remain the residential house of the

plaintiffs. Heavy reliance was placed by learned counsel for the

plaintiffs on a letter dated 28.01.2003 addressed by the defendant

No.2 to the plaintiff No.2 to contend that defendant No.2 had himself

demanded 1/4th share in the suit premises from the plaintiffs and he

had undertaken that he would not disturb their occupation thereof. It

was alleged that the defendant No.2 had deserted his family since the

year 1992 and he had failed to make any financial arrangements to

sustain the plaintiffs and maintain the suit premises and that the

conversion money deposited in respect of the suit premises as also all

the bills and taxes relating thereto had been paid by the plaintiff No.2

as part of the family arrangement and in lieu thereof, defendant No.2

had assured the plaintiffs that he would not disturb their possession.

10. Learned counsel for the plaintiffs had also relied on the

letter dated 28.01.2003 addressed by the defendant No.2 to the

plaintiff No.2 to fortify his argument that defendant No.2 had

mentioned therein that he had cultivable land in Kerala and the said

land was fetching good returns from cultivation. He had submitted that

if the aforesaid letter is read in totality, it clearly emerges therefrom

that the suit premises was not a self-acquired property of the

defendant No.2, but was purchased from an infusion of ancestral funds

and hence, he had no right to dispose it of in the manner that he had

done. Thus, it was urged on behalf of the plaintiffs that the judgment

and decree dated 29.05.2009 passed in the suit instituted by the

defendant No.1 against the defendant No.2, being a consent decree

and having been obtained by her in collusion with the defendant No.2,

is liable to be set aside and during the pendency of the present

proceedings, the execution proceedings are also liable to be stayed.

11. Per contra, learned counsel for the defendant No.1 had

strongly opposed the present application and had prayed for vacation

of the interim order dated 19.12.2011 on the ground that the present

suit has been instituted by the plaintiffs in collusion with the defendant

No.2 and the said parties have initiated a second round of litigation

only to buy time in the execution proceedings, by giving their

matrimonial dispute, a colour of collusion. Learned counsel had

submitted that after execution of the Sale Deed by the defendant No.2

in favour of the defendant No.1, she became the absolute owner of the

suit premises and subsequently, the landlady thereof by virtue of the

registered Rent Agreement dated 27.02.2008. He pointed out that

neither of the aforesaid documents have been challenged by the

plaintiffs in the present proceedings or in any other proceeding and

therefore, they cannot lay any claim to have a right, title or interest in

the suit premises. He had further argued that the plaintiffs did not

have a locus standi or a cause of action to institute the present suit as

they did not have a privity of contract with the defendant No.1. He had

also drawn the attention of this Court to the averments made in the

plaint to urge that the plaintiffs had themselves admitted the fact that

the defendant No.2 had been allotted the suit premises by the DDA in

the year 1983 and he had deposited all the installments in respect

thereof and after conversion of the suit premises from leasehold to

freehold on 18.02.2002, defendant No.2 had become its absolute

owner and was well entitled to dispose it off as he deemed fit.

12. Learned counsel for defendant No.1 had also relied upon

the very same letter dated 28.01.2003 that was addressed by the

defendant No.2 to the plaintiff No.2 and filed by the plaintiffs, to

contend that the defendant No.2 had clearly stated therein that he had

paid all the installments in respect of the suit premises to the DDA

from his income from service and his provident fund and further, that

the sum of `10,000/- that had been spent by the plaintiff No.2 for

converting the suit premises from leasehold to freehold was only a

loan taken by the defendant No.2.

13. Learned counsel for the defendant No.1 had stated that in

the execution proceedings filed by his client, the plaintiffs had very

conveniently chosen to file only two pages, i.e., the first and the last

page of the aforesaid letter dated 28.01.2003 written by the defendant

No.2 to the plaintiff No.2, whereas the said letter was actually running

into fifteen pages and when the court below was unable to correlate

the first and the last page of the said letter, the plaintiffs were

compelled to file the complete letter comprising of fifteen pages but

the same was unsigned. He submitted that in the present proceedings,

the plaintiffs have now filed the very same letter alongwith the

documents filed under index dated 15.12.2011, perusal whereof

reveals that the same had been duly signed by the defendant No.2. He

thus stated that the plaintiffs have tried to play fast and loose with the

Court and tried to conceal the entire contents of the aforesaid

document by relying only on those portions that suited them.

14. Learned counsel for the defendant No.1 had further

submitted that by a subsequent letter dated 06.03.2008 filed by the

plaintiffs alongwith the list of documents, the defendant No.2 had duly

apprised the plaintiff No.1 of the fact that he had already sold the suit

premises to the defendant No.1 by executing a registered Sale Deed

and had received the full consideration amount, and further, that the

said flat had been given on rent to the defendant No.2 for a limited

period of three months, for which advance rent had been deposited by

him with the defendant No.1. It is thus contended on behalf of the

defendant No.1 that the plaintiffs cannot feign complete ignorance

about the factum of sale of the suit premises or that the same had

been let out by the defendant No.1 to the defendant No.2 for a brief

period of three months.

15. The attention of this Court was also drawn to the order

dated 29.05.2009 that was passed in Suit No.524/2008, a suit that

had been instituted by the defendant No.1 against the defendant No.3

to submit that the decree sought to be described by the plaintiffs as a

collusive decree, was actually a decree that was passed on an

application filed by the defendant No.1 under Order XII Rule 6 CPC,

based on the admissions that had been made by the defendant No.2 in

his written statement. Learned counsel had also referred to the order

dated 03.03.2011 passed by the execution court, whereunder an

application filed by the plaintiffs herein, seeking stay of the execution

proceedings was dismissed by a detailed order running into seventeen

pages and he pointed out that all the pleas that have been taken by

the plaintiffs herein were taken as objections in the aforesaid

proceedings, duly considered by the executing court and were

dismissed as being devoid of merits.

16. As regards the contention of the counsel for the plaintiffs

that the defendant No.2 had abandoned the suit premises since the

year 1992, the same was strongly refuted by Mr. S.P. Singh, Advocate

for the defendant No.1, who had stated that the correspondence that

was exchanged between the DDA and the defendant No.2 right upto

the year 2002 for converting the suit premises from leasehold to

freehold, had mentioned his address as that of the suit premises and

even as per the memo of parties filed by the plaintiffs herein, they

admit the address of the defendant No.2 to be that of the suit

premises. He further stated that in the replication filed by the plaintiffs

to the written statement of the defendant No.1, they have averred that

it is not their case that the transaction was a Benami transaction or

the premises is of the Joint Hindu family. Instead, they have

described the suit premises as an ancestral property and have claimed

that the defendant No.2 had no right to sell the same without

obtaining a NOC/Relinquishment Deed from the plaintiffs. He referred

to the order dated 03.03.2011 passed by the execution court and

submitted that the aforesaid stand taken by the plaintiffs was duly

examined by the said court and was turned down. Even otherwise, he

urged that the aforesaid plea taken by the plaintiffs that the premises

in question was ancestral in nature, is devoid of merits for the reason

that the plaintiffs and the defendant No.2 hail from the State of Kerala

and under the Kerala Joint Family Abolition Act, 1976, ancestral

property devolves on female descendants and not on male

descendants and therefore, the plaintiffs cannot lay a claim to the suit

premises by describing the same as ancestral in the hands of the

defendant No.2.

17. Additionally, learned counsel for the defendant No.1 had

placed reliance on two judgments of this Court in the cases of Rahul

Behl and Ors. vs. Smt. Ichayan Behl and Anr. reported as DRJ 1991

(21) 205 and Pratap vs. Shiv Shankar reported as 164(2009)DLT

479 to canvass that even if the plaintiffs seek shelter under the Hindu

Succession Act, 1956, then Section 8 of the said Statute excludes sons

of son but includes sons of a predeceased son and any ancestral

property that devolves on a son, is not in his capacity of being a Karta

of a HUF, but in his individual capacity vis-a-vis his sons. He thus

submitted that for this reason also, neither of the plaintiffs cannot

claim a right to challenge the Sale Deed that was executed by the

defendant No.2 in favour of the defendant No.1.

18. Learned counsel for the defendant No.1 also questioned

the maintainability of the present suit in view of the provisions of

Section 34 of the Specific Relief Act and Section 3 and 4 of the Benami

Transaction (Prohibition) Act, 1988 and canvassed that having

miserably failed to establish a prima facie case or balance of

convenience in their favour, the ex-parte ad interim injunction order

dated 19.12.2011 operating in favour of the plaintiffs, ought to be

vacated forthwith. It is thus stated that not only should the interim

application filed by the plaintiffs be dismissed, the suit that has been

instituted by them is also liable to be dismissed as not maintainable in

view of the provisions of Rule 101 of Order XXI of the CPC.

19. A perusal of the averments made in the plaint reveals that

the plaintiffs have also admitted the fact that the suit premises in

question, i.e., an MIG flat was allotted by the DDA to the defendant

No.2 in the year 1983 and that it was the said defendant who had paid

installments thereof to the DDA. However, a twist has sought to be

given by the plaintiffs to the source of the installments that had been

deposited by the defendant No.2 by alleging that he had made periodic

infusion of funds and incomes from the ancestral agricultural land, to

which the plaintiffs had a lawful right and therefore, the suit premises

had acquired the colour of being an ancestral property in the hands of

the defendant No.2.

20. Though none had appeared on behalf of the defendant

No.2 when the present application was argued, a perusal of part-I file

reveals that a written statement had been filed by the said defendant

on 25.05.2012, wherein he has categorically denied the submissions

made by the plaintiffs to the effect that they had contributed any

amount to purchase the suit premises. Instead, defendant No.2 has

asserted that the entire amounts payable for purchase of the suit

premises were deposited by him in installments with the DDA, spread

over a period of eight years from the year 1983 to the year 1990. It is

further averred in the written statement that the sale transaction

between him and the defendants No.1 was within the knowledge of the

plaintiffs and the temporary arrangement of tenancy under the

defendant No.1 was worked out by him after duly taking them into

confidence, and further, that the suit premises had been sold by the

defendant No.2 for purposes of constructing a house in Kerala and he

had even started construction thereof with the sale proceeds received

from the suit premises.

21. Defendant No.2 has further averred in his written

statement that the suit premises had been converted in his name by

the DDA from leasehold to freehold and all the installments in respect

of the flat had been duly paid by him, which fact would be borne out

by all the challans that were filled up in his own handwriting and were

deposited with the DDA. He has categorically denied having purchased

the suit premises from out of moneys received from the ancestral

property or the proceeds of the ancestral property as alleged by the

plaintiffs. He has further averred in para 13 of the written statement

that he and the plaintiffs hail from Kerala and under the Kerala Joint

Family Abolition Act, 1976, the children get right by birth only in their

mother's property. Hence, the question of any ancestral property

devolving on him or his having infused the proceeds thereof in the suit

premises has been categorically denied by the defendant No.2.

22. This Court has heard the counsels for the parties and

carefully considered their respective submissions in the light of the

pleadings as also the documents that have been placed on record.

23. The facts of the case that are relevant for deciding the

present application have been duly narrated above. To test the claim

of the plaintiffs that they came to know about the sale transaction and

the litigation that had been initiated by the defendant No.1 for seeking

possession of the suit premises on 12.12.2009, when she had sought

to forcibly evict them from the suit premises, it is necessary to

examine the stand taken by the defendant No.2 in his written

statement. As noted above, in his written statement, defendant No.2

has submitted that the plaintiffs were all along aware of the pendency

of the court proceedings between him and the defendant No.1 and of

the decision of the Court, but they still chose not to vacate the suit

premises. Defendant No.2 has also denied the fact that there was any

collusion between him and the defendant No.1 and he has

controverted the stand taken by the plaintiffs that the aforesaid sale

transaction and the Rent Deed were not to their knowledge.

24. It is also relevant to examine the documents that have

been filed by the plaintiffs under the index dated 15.12.2011. The said

list of documents reveals that initially, the plaintiffs had obtained and

filed certified copies of the documents that had been filed by them in

Execution Petition No.56/2009, filed by the defendant No.1. At page

50 of the aforesaid documents is the copy of a two page letter dated

28.01.2003 addressed by the defendant No.2 to his son, plaintiff No.2.

The said letter, marked as Annexure A-5, is however not paginated.

The first page of the said letter mentions that defendant No.2 had

received a sum of `78,000/- from the company where he was

employed and he had taken more than half of his Provident Fund from

the company for making payment for the suit property. On the second

page of the said letter, defendant No.2 wrote that if health permitted,

he would want to work for some more time and if for any reason, that

did not happen, then he would have no other alternative but to make a

demand of 1/4th share of the house (i.e., the suit premises).

25. The second relevant document filed by the plaintiffs is the

letter dated 06.03.2008 addressed by the defendant No.2 to his wife,

plaintiff No.1 informing her that he wanted to settle at his native place

in Thiruvilwamala at Kerala and with this intention, he had sold his

house to the defendant No.1 by executing a registered Sale Deed and

the entire sale consideration had been received by him and further,

plaintiff No.1 was informed that he had taken the very same premises

on rent for a limited period of three months, for which purpose, he had

got a Rent Agreement registered with the defendant No.1/landlady and

under the said Rent Agreement, they were required to vacate the

house by 27.05.2008. Defendant No.2 had also warned the plaintiff

No.1 that failure to vacate the house by the cut-off date would result

in suffering the liability of paying double the normal rent and he

advised her to come and stay with him at Kerala alongwith their son,

plaintiff No.2, for which purpose, he had made arrangements to

construct a house in his native place.

26. At page 95 of the very same set of documents filed by the

plaintiffs, is a fifteen pages letter dated 28.01.2003 written by the

defendant No.2 to his wife, plaintiff No.1. A perusal of the said letter

reveals that the first and the last pages thereof are identical to the

pages that have been enclosed by the plaintiffs at pages 50-51 of the

set of documents as have been mentioned in para 24 hereinabove. The

aforesaid letter contains a litany of complaints against his wife, made

by defendant No.2 to the plaintiff No.2. On the second page of the said

letter, defendant No.2 had written that he had retired from his service

in a private limited company and his salary was `4,000/- and that he

had left for Bangalore in the year 1993 and had returned after one

year, during which period, the MCD had addressed three letters to him

demanding a sum of `23,000/- and only upon his return, could he

deposit the said amount. At page 3 of the aforesaid letter, defendant

No.2 has mentioned having paid a sum of `25,000/- to the Statutory

Authority for converting the suit premises from leasehold to freehold.

He also admitted having borrowed a sum of `10,000/- from the

plaintiff No.2 and assured him that he would return the said loan. At

page 9 of the letter, defendant No.2 had written that the suit premises

was occupied by him and his family from the year 1982, till the year

2003 and in these twenty one years, it was he alone, who was bearing

the electricity bills (apart from a couple of times when the plaintiffs

had paid the said bills) and that none of the parties had paid any

amounts in respect of the suit premises, including property tax bills,

ground rent bills and service charges etc.

27. With regard to the native property of the defendant No.2,

at page 11 of the aforesaid letter dated 28.01.2003, he had stated

that he still had some cultivable land at his native place but could not

find any buyer for the same. He informed plaintiff No.2 that he had not

transferred the said land to anybody. On the last page of the said

letter, defendant No.2 had stated that his bank balance was reduced

to nil and he had no other investment and if his health permitted, he

would want to continue with his service for some more time but if the

same did not happen, then he would have no alternative but to

demand 1/4th share of the house for the purpose of his livelihood. The

contents of the aforesaid letter addressed by the defendant No.2 to

the plaintiff No.2 and heavily relied upon by the counsel for the

plaintiffs completely demolishes the stand taken by the plaintiffs that

the defendant No.2 was not residing in the suit premises ever since

the year 1992.

28. The aforesaid position is also borne out from a perusal of

the documents that were handed over by the counsel for the

defendants in the course of arguments, which are a bundle of

correspondence exchanged between the defendant No.2 and the DDA

for conversion of the suit premises from leasehold to freehold. In all

the aforesaid letters written by the defendant No.2 to the DDA, right

upto the year 2001, he had mentioned his address as that of the suit

premises. This also negates the stand taken by the plaintiffs that after

the year 1992, defendant No.2 was not residing in the suit premises.

29. Moreover, the contention of the counsel for the plaintiffs

that the suit premises was ancestral in nature has not been

substantiated by the plaintiffs by either furnishing the details of the

purported ancestral property, the proceeds whereof were allegedly

used by the defendant No.2 to purchase the suit premises, or by

substantiating their claim of contributing financially to the suit

premises by filing some documents in support of the said submission.

A mere extension of a paltry sum of `10,000/- as loan by the plaintiff

No.2 to his father for conversion of the suit premises from leasehold to

freehold can hardly be treated as an investment made by him for

purchase thereof. Hence a bald assertion made by the plaintiffs that

the suit premises was purchased from monies received from ancestral

property or that they had contributed in any way for purchase thereof,

cannot take their case any further.

30. The aforesaid stand taken by the plaintiffs was also

examined by the execution court while passing the order dated

03.03.2011, wherein it was observed that the argument of the

plaintiffs (objectors in the said proceedings) that the property in

question was purchased out of agricultural income was untenable as

the said property had not been purchased by the defendant No.2 as

the Karta of a joint Hindu family, but the same was allotted to him in

his individual capacity and thus, it had remained his self-acquired

property. Even today, the plaintiffs did not deny the fact that the suit

premises was allotted by the DDA to the defendant No.2 and after the

same was converted from leasehold to freehold, it had remained his

exclusive property. In any case, learned counsel for the plaintiffs did

not deny the fact that the plaintiffs and the defendant No.2 hail from

Kerala and the society in Kerala being a matriarchal society, ancestral

property devolves on female descendents and not on male

descendants as the parties are governed by the Kerala Joint Family

Abolition Act, 1976. Even otherwise, the plaintiffs have themselves

admitted in their replication to the written statement filed by the

defendant No.2 that they did not seek the benefit of the exception

carved out in the Benami Transaction (Prohibition) Act, 1988 or lay a

claim on the suit premises on the ground that it had been purchased

as an HUF property and they are the coparceners in a Hindu Undivided

Family.

31. Furthermore, the attempt on the part of the plaintiffs to

describe the judgment and decree dated 29.05.2009 passed by the

trial court in the suit instituted by the defendant No.1 against the

defendant No.2 as a consent decree, is not just erroneous, but is

misconceived. A perusal of the aforesaid judgment and decree dated

29.05.2009 reveals that the same was passed under the provisions of

Order XII Rule 6 CPC, on the basis of admissions that were made by

the defendant No.2 in his written statement. In fact, the statement of

defendant No.2 was separately recorded by the trial court much

earlier, on 16.10.2008 when he had undertaken to vacate the suit

premises by 27.10.2008. However, when he did not vacate the same,

the defendant No.1 was compelled to file an application under Order

XII Rule 6 CPC, for grant of a judgment on admission. In view of the

aforesaid position, the learned ACJ/ARC(West), Tis Hazari Courts,

Delhi, had held that the defendant No.1 was the owner of the suit

premises in view of the registered Sale Deed that was executed in her

favour by the defendant No.2, who was the original allottee and

subsequent to the sale, there was a relationship of landlord and tenant

between the said parties, by virtue of the registered Rent Agreement

dated 27.02.2008 and when the tenancy period had expired on

26.05.2008 by efflux of time, defendant No.2 was in unauthorized

occupation of the suit premises. Consequently, the suit for possession

instituted by the defendant No.1 was decreed under Order XII Rule 6

CPC and based on the said judgment and decree dated 29.5.2009,

defendant No.1 had filed the execution proceedings against the

defendant No.2, wherein the plaintiffs had filed their objections, that

came to be dismissed, vide order dated 3.3.2011.

32. The plea of marital discord between the plaintiff No.1 and

the defendant No.2 as taken by the plaintiffs, cannot be a ground for

holding that there is a prima facie case in their favour or that balance

of convenience lies in their favour, nor can the said plea be treated as

a ground to treat the Sale Deed executed by the defendant No.2 in

favour of the defendant No.1 as a sham transaction or one that was

intended to defeat the claims of the plaintiffs only on account of the

fact that they are in physical possession of the suit premises.

33. As noted above, the plaintiffs have failed to place on

record even a semblance of a document to establish that the suit

premises had been allegedly purchased out of the funds received from

ancestral property that had been allegedly sold by the defendant No.2.

Instead, the contents of letter dated 28.01.2003 addressed by the

defendant No.2 to the plaintiff No.2 and heavily relied upon by the

plaintiffs completely wipes out the aforesaid stand for the reason that

in the said letter, defendant No.2 had categorically stated that he had

not transferred the agricultural land at his native place to anybody and

that cultivation thereof had become unremunerative. The entire letter

has to be read as a whole and not in bits and pieces as sought to be

done by the plaintiffs, as that would distort the meaning conveyed

therein by the defendant No.2, the author thereof.

34. Similarly, if it is the stand of the plaintiffs that they had

made financial contributions towards the purchase of the suit

premises, then it was for them to have demonstrated that they had

filed some objections with the DDA when the same had been

converted into a freehold property, solely in the name of the defendant

No.2.

35. The bald denial issued by the plaintiffs that they were

blissfully unaware of the factum of execution of the Sale Deed in

respect of the suit premises in favour of defendant No.1 or the

execution of the Rent Agreement runs contrary to the contents of the

letter dated 06.03.2008 addressed by the defendant No.2 to the

plaintiff No.1, wherein he had duly informed his wife of having sold the

suit premises to the defendant No.1 by virtue of a registered Sale

Deed and he had also apprised her of the fact that a Rent Agreement

had been executed by him with the defendant No.1 for retaining the

house as a tenant for a period of three months and had undertaken to

vacate the same by 27.10.2008. For them to now claim that they

came to know about the sale transaction only on 12.12.2009, when

the defendant No.1 had tried to forcibly enter the suit premises,

cannot cut any ice in the light of the aforesaid documents that have

been filed by the plaintiffs themselves.

36. Another important event that must be noticed, is the ex

parte ad interim injunction order dated 19.12.2011 and the order

dated 2.3.2012. A perusal of the order dated 19.12.2011 reveals that

in para 8 thereof the Court had recorded the submission of the counsel

for the plaintiffs to the effect that the defendant No.2 had in collusion

with the defendant No.1, sold the suit premises to the latter so as to

deprive the plaintiffs of a shelter over their heads. Further, counsel for

the plaintiffs had categorically stated that the original Conveyance

Deed of the suit premises, a copy whereof had been filed on record,

was in the possession of the plaintiffs and that they had been in

settled possession therein ever since the year 1983. Persuaded by the

aforesaid submissions that were made by the counsel for the plaintiffs

as recorded in paras 8 and 9 of the aforesaid order, an ex parte ad

interim injunction was granted in favour of the plaintiffs by directing

that no coercive action would be taken against them in the execution

petition filed by the defendant No.1.

37. However, on the very next date, i.e., on 02.03.2012,

learned counsel for the plaintiffs had proceeded to submit that it had

been wrongly recorded in para 8 of the order dated 19.12.2011 that

the original Conveyance Deed of the suit premises was in the

possession of the plaintiffs, and in fact only a photocopy thereof was in

their possession. Although the said submission was recorded in the

order dated 02.03.2012, but the Court did not make any specific

observation in that regard.

38. In view of the above, this Court is of the opinion that

misleading facts were deliberately presented by the plaintiffs on

19.12.2011, which had resulted in passing of the ex-parte interim

order in their favour and knowing very well that the said statement

could not be substantiated by them, later on an innocuous statement

was sought to be made on their behalf that the original conveyance

deed of the suit premises was not in their possession. There was no

occasion for the predecessor Bench to have on its own recorded in the

order dated 19.12.2011, that the original Conveyance Deed was in the

possession of the plaintiffs unless and until such a submission had

been made on behalf of the plaintiffs. This is more so when only a

copy of the Conveyance Deed had been filed by the plaintiffs while

instituting the suit, which fact had been admitted by the counsel for

the plaintiffs on 02.03.2012.

39. Furthermore, if it was an erroneous recording of the

statement of learned counsel for the plaintiffs, then he ought to have

approached the Court for making necessary corrections, at the first

given opportunity. This is all the more so when the copy of the order

dated 19.12.2011 was given to the plaintiffs dasti and therefore

knowledge thereof cannot be denied by them till as late as in March,

2012, and nor can there be any justification for remaining silent in this

regard till 2.3.2012. The above events fortify the view of this Court

that the plaintiffs knew all along that they were on a weak wicket and

they still proceeded to take their chance by asserting that the

Conveyance Deed of the suit premises was in their possession and

after the ex-parte injunction order was passed, sought to attribute

their submission to an error in the court proceedings as recorded on

19.12.2011.

40. In view of the aforesaid facts and circumstances, this

Court is not persuaded to continue the interim order dated 19.12.2011

in favour of the plaintiffs, which is accordingly vacated forthwith and

the present application is dismissed with costs of Rs.10,000/- payable

to the defendant No.1 within two weeks.

                                                     (HIMA KOHLI)
OCTOBER 31, 2012                                         JUDGE
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