Virendra Kumar Markande ... vs Tarseem Chand Jain Deceased ...
2013 Latest Caselaw 4911 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of decision: 25th October, 2013.

+                               RFA 627/1998

       VIRENDRA KUMAR MARKANDE (DECEASED)
       THROUGH LR'S                              ..... Appellant
                   Through: Mr. Akshay Makhija and Ms.
                            Sanjugeeta Moktan, Advocates.

                                   Versus

    TARSEEM CHAND JAIN DDECEASED THROUGH LR'S
    & ORS                                      ..... Respondents
                  Through: Mr. Sarvesh Biraria with Mr. Prakash
                           Chandra Sharma, Advocates for R-2.
                           Mr. Anil Kumar, Adv. for R-3(b) to
                           (d).
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree dated 12 th August, 1998

of the learned Additional District Judge (ADJ), Delhi of dismissal of Suit

No.860/1990 filed by the appellant, for recovery of possession of

immovable property bearing No.A-199 admeasuring 180 sq. yds. forming

part of Majlis Park, Delhi and for recovery of mesne profits.

2. Notice of the appeal was issued and accepted by the counsel for the

respondents No.1 & 2/caveators; the appellant was directed to take steps for

service of the respondents No.3(a) to 3(d) and respondent No.4. The appeal

was on 5th July, 1999 admitted for hearing and by subsequent order dated 6 th

March, 2006, the Trial Court record requisitioned. The appeal was on 18th

May, 2009 dismissed in default of appearance of the parties. Applications

for restoration and for substitution of the legal heirs of the respondent No.1

were filed along with applications for condonation of delay in applying

therefor; the appellant also died during the pendency of the said applications

and application for substitution of his legal heir was also filed. Vide order

dated 22nd August, 2012, the delays were condoned and the legal heirs of the

appellant and of the respondent No.1 substituted.

3. The counsel for the legal heirs of the appellant/plaintiff and the

counsel for the respondents No.2 & 4 namely Sh. Sat Pal Garg and Smt.

Raksh Devi have been heard. The counsel for the respondents No.3(b) to

(d) namely Sh. Brij Bhusan, Smt. Kusum and Mrs. Suman, being the legal

heirs of the deceased respondent No.3 Smt. Santosh Jain has adopted the

arguments of the counsel for the respondents No.2 & 4. None has appeared

for the respondent No.3(a) Sh. Suraj who was on 23 rd August, 2013

proceeded against ex-parte. The respondents No.3(a) to (d) are also the

legal heirs of deceased respondent No.1.

4. The appellant instituted the suit from which this appeal arises,

initially against the deceased respondent No.1 Tarseem Chand Jain and

respondent No.2 Sh. Sat Pal Garg only; subsequently their wives namely

deceased respondent No.3 Smt. Santosh Jain and respondent No.4 Smt.

Raksh Devi, respectively were also impleaded. The pleadings in the fourth

amended plaint dated 19th July, 1994 were:

(i) that the appellant/plaintiff is the owner of house No.199

admeasuring 180 sq. yds. in the area forming part of Block-A, Majlis

Park, Delhi by virtue of Sale Deed registered on 12th May, 1954;

(ii) that the vendors Sh. Faqir Chand and Sh. Brij Nandan sons of

Sh. Ram Swaroop through their attorney Sh. Thakur Dass, who had

executed the Sale Deed registered on 12th May, 1954 in favour of

appellant/plaintiff also executed a Supplementary Sale

Deed/Rectification Deed dated 26th August, 1983 registered on 15th

November, 1983;

(iii) that the appellant/plaintiff remained in physical possession of

the property;

(iv) that two years prior to the institution on 31st March, 1981 of the

suit, the appellant/plaintiff constructed one room and boundary wall

on the said plot of land;

(v) that though the appellant/plaintiff was staying at Sarojani

Nagar, New Delhi but regularly and periodically visited the said

property;

(vi) that in the visit in the week of December, 1980, his lock on the

property was intact;

(vii) that on 14th March, 1981, when he visited the property, he

found the construction raised by him to have been demolished and the

property to have been divided into two plots of 90 sq. yds. each and

construction thereon being underway with the respondent/defendant

No.1 Sh. Tarseem Chand Jain in possession of North portion of the

property and the respondent/defendant No.2 Sh. Sat Pal Garg in

possession of South portion of the property;

(viii) that since it was claimed that respondent/defendant No.3 Smt.

Santosh Jain wife of respondent/defendant No.1 Sh. Tarseem Chand

Jain and respondent No.4 Smt. Raksh Devi wife of

respondent/defendant No.2 Sh. Sat Pal Garg was also in possession of

the property, they were also impleaded as parties;

(ix) that it thus appeared that the respondents/defendants had

between the first week of December, 1980 and 14 th March, 1981

trespassed into the property;

(x) that the complaints of the appellant/plaintiff to various

authorities did not meet with any success.

Accordingly, the suit for recovery of possession and for mesne

profits/damages for use and occupation was filed.

5. All the respondents/defendants filed a common written statement,

contesting the suit on the grounds:

(a) that the suit was barred by Order 7 Rule 3 of the Civil

Procedure Code (CPC), 1908;

(b) that even the fourth amended plaint was completely silent as to

the actual location and situation of the property of which possession

was claimed in regard to revenue records;

(c) that the appellant/plaintiff himself did not know the actual

particulars of his own land as was apparent from the repeated

amendments sought by the appellant/plaintiff and the Supplementary

Sale Deed/Rectification Deed got executed by the appellant/plaintiff

himself after about 30 years of the Sale Deed;

(d) that as per the original Sale Deed set up by the

appellant/plaintiff, the appellant/plaintiff had purchased the plot

No.199 in Block-A of Majlis Park Colony, Delhi situated in Khasra

No.6 in the revenue estate of Village Azadpur with an area of 180 sq.

yds. bounded on North by plot No.272, on the South by road, on the

East by plot No.200 and on the West by plot No.198;

(e) that however as per the receipt No.191 dated 10th March, 1954

issued to the appellant/plaintiff by M/s. Cheap Housing Company,

sponsor of the colony, at the time of booking, the plot was bounded

on East by 25 inch wide road, on the West by plot No.198, on the

North by plot No.238-A and on the South by 25 inch wide road;

(f) that there were thus inconsistencies in the description of the

plot in the document of booking and in the Sale Deed in pursuance to

the said booking, set up by the appellant/plaintiff;

(g) that the Supplementary Sale Deed/Rectification Deed was a

result of conspiracy of the appellant/plaintiff with Sh. Thakur Dass

alleged general attorney of the vendors;

(h) that the execution of the said Supplementary Sale Deed

tantamount to creating and fabricating evidence in order to meet the

defence of the respondents/defendants in the suit;

(i) that in the rectified Sale Deed, not only the Khasra number has

been changed from 6 to 26 but the entire boundaries of the plot had

been changed and which was untenable in law;

(j) that in the layout plan of the colony of Majlis Park prepared by

M/s. Cheap Housing Company which was the colonizer and

developer of the said colony also, the plot of which the possession

was claimed was not the plot which the appellant/plaintiff had

purchased;

(k) that as per the said layout plan, the plot in possession of the

respondents/defendants was in Block-B and not in Block-A of the

said colony;

(l) that owing to the said inconsistencies, the plaint was liable to

be rejected under Order 7 Rule 11 of the CPC;

(m) that the Supplementary Sale Deed/Rectification Deed having

been got executed during the pendency of the suit, without taking

permission of the Court and by an incompetent person, was not liable

to be taken into consideration;

(n) that thus, the title document relied upon by the

appellant/plaintiff, did not pertain to the land of which possession was

claimed;

(o) that the respondents/defendants No.3 & 4 namely Smt. Santosh

Jain wife of Sh. Tarseem Chand Jain and Smt. Raksh Devi wife of Sh.

Sat Pal Garg had come into possession of their respective 90 sq. yds.

portions of the property together with construction thereon through

the rightful owner thereof and on the basis of documents of transfer in

their favour;

(p) that the claim of the appellant/plaintiff was barred by time;

(q) that the claim of the appellant/plaintiff was barred by Section

53A of the Transfer of Property Act, 1882;

(r) that the appellant/plaintiff cannot claim any title to the plot, of

which possession was sought, on the basis of the Sale Deed executed

in his favour by Sh. Thakur Dass, who himself was not competent to

execute any document of title;

(s) that the respondents/defendants were in occupation of plots

comprised in Khasra No.262/258/217/4 of Village Bharola (know

known as Majlis Park Colony) in pursuance to Agreements to Sell in

their favour of the years 1980 and 1981 respectively and were in

possession thereof since then.

6. After the demise of respondent/defendant No.3 Smt. Santosh Jain

wife of Sh. Tarseem Chand Jain, a written statement was also filed by her

legal heirs on the same lines as the joint written statement earlier filed by all

the respondents/defendants.

7. The appellant/plaintiff has filed replication to the written statements

but need is not felt to refer thereto.

8. In the aforesaid state of pleadings, the following issues were framed

in the suit on 11th November, 1986:

"(1) Whether the suit is bad for non-compliance of Order VII Rule 3 C.P.C.?

(2) Whether the suit has been property valued for the purpose of court-fee and jurisdiction and the court did not have pecuniary jurisdiction to try the suit? (3) Whether the plaintiff is the owner of the property in occupation of the defendants and is entitled to the possession thereof?

(4) Whether the plaintiff is entitled to the damages. If so, at what rate?

(5) Whether the defendants, demolished any construction of the plaintiff. If so, what construction has been demolished and what is the cost thereof?

(6) Whether the suit is barred by time?

(7) Whether the defendant's possession is protected under the Provision of the Section 53-A of the T.P. Act? (8) Relief?"

9. The appellant/plaintiff besides himself examined six other witnesses.

10. The respondents/defendants examined the respondent/defendant No.1

Sh. Tarseem Chand Jain, respondent/defendant No.2 Sh. Sat Pal Garg and

two other witnesses.

11. The learned ADJ, vide the impugned judgment, has dismissed the

suit, finding/observing/holding:

(I) that the suit was originally filed on 2 nd April, 1981; the

appellant/plaintiff amended the plaint on 27th July, 1981, 4th May,

1982, 9th January, 1984 and lastly on 19th July, 1994; for all these

years, the appellant/plaintiff had not been careful in describing the

property correctly;

(II) that though the claim of the appellant/plaintiff originally in the

plaint as well as in the Sale Deed was that the property was comprised

in Khasra No.6 but the appellant/plaintiff subsequently pleaded that

the Khasra No.6 was wrongly mentioned in the Sale Deed and the

correct Khasra number is 26; however in the other documents

executed at the time of purchase by the appellant/plaintiff and in the

site plan filed by the appellant/plaintiff in the Court, there was no

mention of Khasra No.26; in fact, in the site plan, no Khasra number

was mentioned;

(III) that though the appellant/plaintiff had also described the

property as bearing No.A-199, Majlis Park but the thrust was on

Khasra number only;

(IV) that the evidence laid by the appellant/plaintiff cannot make the

plaint in accordance with Order 7 Rule 3 of the CPC; rather, no

evidence beyond pleadings could be looked into;

(V) that the boundaries of the plot in dispute having been not

described in the plaint, the Issue No.(1) was decided against the

appellant/plaintiff;

(VI) that qua Issue No.(2), the appellant/plaintiff was asked to pay

additional court fees;

(VII) that Issue No.(3) was decided against the appellant/plaintiff for

the reasons:

(a) the appellant/plaintiff claimed to have booked the plot

vide receipt No.191 dated 10th March, 1954 of M/s. Cheap

Housing Company; however, the said receipt was signed by the

Clerk of the Company and not by any authorized officer of the

Company and did not also bear any official seal of the

Company; no Khasra number also was mentioned on the

receipt;

(b) from 1954 till 1983, the appellant/plaintiff did not try to

get the Sale Deed rectified;

(c) that the boundaries of the plot as defined in the booking

receipt and as defined in the Sale Deed were different;

(d) the appellant/plaintiff himself, by getting the

Rectification Deed executed, admitted that the boundaries

mentioned in the Sale Deed were not correct;

(e) the Khatauni proved by the appellant/plaintiff does not

show the name of the appellant/plaintiff as purchaser;

(f) the Sale Deed was disputed by the

respondents/defendants in the suit and was thus a disputed

document; the same could not have been corrected during the

pendency of the suit behind the back of the

respondents/defendants;

(g) if the Rectification Deed were to be ignored, then the

other documents on record did not prove the title of the

appellant/plaintiff;

(h) any document got prepared by the appellant/plaintiff

after the institution of the suit and behind the back of the

respondents/defendants cannot be taken into consideration;

(i) though the witness of the appellant/plaintiff had deposed

that the land was comprised in Khasra No.6 but the stand of the

appellant/plaintiff himself in the amended plaint was that it was

comprised Khasra No.26;

(j) the possession of the appellant/plaintiff of the land, from

1954 to 1981, was with wrong boundaries;

(k) the appellant/plaintiff had lost his ownership right of the

plot due to long passage of time;

(l) the appellant/plaintiff had not proved any document to

show his possession from 1954 to 1981;

(m) the ownership of the plot purchased by the

appellant/plaintiff has extinguished and expired by lapse of

time from 1954 till 1981 i.e. even before the execution of the

Rectification Deed.

(VIII) that in view of the aforesaid, Issues No.(4) & (5) were also

decided against the appellant/plaintiff and qua Issue No.(6) the suit

was held to be time barred;

(IX) that since the respondents/defendants were not purchasers from

the appellant/plaintiff, the provisions of Section 53A of the Transfer

of Property Act were not applicable to them.

12. The counsel for the appellant/plaintiff, at the outset, informed that the

colony of Majlis Park has since been regularized. It is further his

contention:

(A) that the learned Trial Court has wrongly believed the

unregistered documents of title set up by the respondents/defendants

in their favour;

(B) that the respondents/defendants claimed title through one Sh.

Tara Chand but have not proved his ownership;

(C) that the revenue records proved by the appellant/plaintiff show

entries in the name of one Sh. Brij Nandan through whom the

appellant/plaintiff claims title to the property;

(D) G.M. Divekar's text book Practical Guide to Deeds &

Documents of the year 2000 (5th revised edition) is cited to contend

that Deed of Rectification is executed when there is some mistake in

the main deed or where the area or survey numbers are not properly

mentioned;

(E) reliance is placed on Rajaram Vs. Manik AIR 1952 Nagpur 90

to contend that a failure to rectify the deed does not extinguish title to

the property which has been sold but was not properly described in

the Sale Deed due to mistake;

(F) reliance is placed on Tetali Sooramma Vs. Kovvuri Venkayya

AIR 1938 Madras 589 laying down that title may be established

without rectification of an instrument also;

(G) reliance is also placed on Balaprasad Asaram Charkha Vs.

Asmabi AIR 1954 Nagpur 328 (DB) laying down that a suit for

possession of immovable property can be maintained even without

getting the document rectified by filing a suit under Section 31 of the

Specific Relief Act, 1963;

(H) that it is not in dispute that as per the rectified Sale Deed in

favour of the appellant/plaintiff, the appellant/plaintiff is the owner of

the property to which the suit pertains.

13. Per contra, the counsel for the respondents/defendants No.2 & 4 at the

outset stated that the respondents/defendants give up their plea of having

title to the land to which the suit pertains and are now contesting these

proceedings only on the aspect that the land purchased by the

appellant/plaintiff in the year 1954 was not the land to which the suit

pertains and the Rectification Deed got executed by the appellant/plaintiff

during the pendency of the suit and behind the back of the

respondents/defendants and without taking permission of the Suit Court,

cannot vest any right in the appellant/plaintiff.

14. It was enquired from the counsel for the respondents/defendants

whether the property sold to the appellant/plaintiff as per the correction vide

Rectification Deed executed during the pendency of the suit is the property

to which the suit pertains. They answer in the affirmative. They however,

inviting attention to the repeated amendments carried out by the

appellant/plaintiff to the plaint, contend:

(i) that as per the last amended plaint, the description of the

property is A-199, Majlis Park, without reference to any Khasra

number; still in the arguments, Khasra No.26 is being argued;

(ii) that the rectification, while the matter was sub-judice, could not

be without the permission of the Court;

(iii) that the execution of the Rectification Deed amounted to

creating third party rights during the pendency of the suit;

(iv) that the Rectification Deed could have been executed only

within three years of the Sale Deed and not thereafter.

15. It was at that stage enquired from the counsel for the

respondents/defendants whether they admit to be in possession of the plot

No.A-199, Majlis Park. They again replied in the affirmative.

16. It was further enquired from the counsel for the

respondents/defendants that if there was a discrepancy between the property

number and the boundaries, which was to prevail.

17. The counsel for the respondents/defendants on the next date of

hearing invited attention to:

A. Krishan Lal Dutta Vs. Behari Lal Chhabra 36 (1988) DLT

324;

B. Judgment dated 5th November, 2012 of the High Court of

Karnataka in R.S.A. No.2504 of 2011 titled Smt. Javaramma Vs. Sri

Shivashetty;

C. Judgment dated 29th October, 2012 of the Madras High Court

in S.A. No.853 of 2004 titled Marimuthu Vs. Gurusamy;

D. Judgment dated 17th February, 2011 of the Madras High Court

in S.A. No.1028 of 2010 titled S. Syed Abubakkar Vs. Sardhar;

and further contended:

(i) that the Rectification Deed got executed by the

appellant/plaintiff was to get over the defence of the

respondents/defendants in their written statement;

(ii) that the rectification was in contravention of Section 52

of the Transfer of Property Act;

(iii) that the appellant/plaintiff had not proved being in

possession of the subject land at any time;

(iv) that the judgment of the Trial Court is correct on the

basis of other material on record;

(v) that the respondents/defendants have been acquitted in

the prosecution against them under Section 448 of the Indian

Penal Code.

18. The counsel for the appellant/plaintiff in rejoinder has argued:

(a) that the judgments cited by the respondents/defendants are not

applicable inasmuch as in none of the those the mistake in description

had been established;

(b) that on the contrary, in the present case, there was a

discrepancy in the boundaries in the booking receipt and in the Sale

Deed;

(c) that there is no limitation for execution of a Rectification Deed

and there can be limitation only for institution of a suit under Section

31 of the Specific Relief Act for rectification of a document;

(d) that here there was no dispute between the vendors of the

appellant/plaintiff and the appellant/plaintiff and hence the

Rectification Deed was executed;

(e) that the documents of title set up by the respondents/defendants

in their favour also did not mention any Khasra number.

19. I may record that the appellant/plaintiff has handed over written

submissions along with copy of the judgment in Pratibha Singh Vs. Shanti

Devi Prasad AIR 2003 SC 643 laying down that where the property, in a

decree in a suit as to immovable property is not definitely identified,

direction for ascertaining the exact description of the property can be issued

by the Executing court; on the basis thereof it is argued, that the Suit Court

in the present case also, vide order dated 5 th June, 1998 had ordered the

Tehsildar to report as to in which Khasra number the suit property falls and

the Tehsildar had reported the suit property to be falling in Khasra No.26

only.

20. The counsel for the respondents/defendants has also handed over a

compilation of the following judgments:

I. Madan Mohan Prasad Vs. Sital Prasad AIR 1921 Patna 226;

II. Julien Marret Vs. Mahomed Khaleel Shirazi & Sons AIR

1930 Privy Council 86;

III. Abdul Majid Vs. Abdul Ghaffar 1997 AIHC 2933;

IV. Khalil Nahak Vs. Hadu Nahak AIR 2006 Orissa 131;

V. State of Karnataka Vs. K.K. Mohandas (2007) 6 SCC 483;

VI. Jagga Singh Vs. Mal Singh (1996) 113 PLR 272;

VII. Judgment dated 26th March, 2010 of Andhra Pradesh High

Court in S.A. No.326 of 2006 titled Sri Chalasani Satyanarayana

Murty Vs. Sri Chalasani Rama Koteswararao;

VIII. Judgment dated 23rd July, 2012 of Karnataka High Court in

R.F.A. No.1895/2010 titled Mr. S. Padmasankar Vs. Ms. Adeline

Priyadarshini Sebastian;

IX. Judgment dated 10th September, 2012 of Karnataka High Court

in R.S.A. No.2133/2006 titled Sri Venkateshappa Vs. Sri

Narayanappa.

21. I have considered the rival submissions. Though the

respondents/defendants were earlier setting up title in the property in

themselves but are now no longer doing so. It is also now admitted that the

property in possession of the respondents/defendants and to which the suit

and this appeal pertains, is the property purchased and owned by the

appellant/plaintiff as per the Sale Deed and Rectification Deed in favour of

the appellant/plaintiff. The question to be determined thus is, whether the

Rectification Deed is valid and to be considered and if not, whether

independent of that the appellant/plaintiff establishes his title to the property

to be entitled to possession thereof and whether the suit is not maintainable

for the reason of the plaint being non-compliant with Order 7 Rule 3 of the

CPC.

22. Though the learned ADJ has also held (and which aspect has not been

argued by the counsel for the respondents/defendants) the suit from which

this appeal arises to be barred by time but in my view, on a wrong

appreciation of law. The learned ADJ has proceeded on a premise that an

owner who is out of possession of his property has limitation of 12 years

from the date he lost possession, to sue for recovering back of the

possession. However, that is not the position in law. Article 64 of the

Schedule to the Limitation Act prescribes the said period of limitation of 12

years from the date of dispossession only for a suit for recovery of

possession based on previous possession and not on title. However, the

appellant/plaintiff herein has not sued for possession merely on the basis of

previous possession; he has also sued for possession on the basis of title to

the property i.e. being owner thereof by virtue of Sale Deed dated 12th May,

1954 in his favour. When the suit is for recovery of possession of

immovable property or any interest therein based on title, the limitation

provided therefor as per Article 65 is of 12 years commencing from the date

when the possession of the defendant becomes adverse to that of the

plaintiff. The respondents/defendants did not contest the claim of the

appellant/plaintiff claiming adversely to the appellant/plaintiff. It was not

their case that though the appellant/plaintiff was the owner but they had

trespassed into the property denying the title of the appellant/plaintiff and

setting up title in themselves owing to having forcibly occupied the

property. Rather, they claimed lawful title to the property through

documents executed in their favour by one Sh. Tara Chand and which claim

has now been given up by the respondents/defendants. Once, that is so, the

period of limitation of 12 years prescribed in Article 65 (supra) commencing

from the date when the possession of the respondents/defendants becomes

adverse to that of the appellant/plaintiff cannot be said to have begun. The

Supreme Court in Mohan Lal Vs. Mirza Abdul Gaffar (1996) 1 SCC 639,

Karnataka Board of Wakf Vs. Government of India (2004) 10 SCC 779,

Annasaheb Bapusaheb Patil vs. Balwant @ Balasaheb Babusaheb Patil

(1995) 2 SCC 543 and in L.N. Aswathama Vs. P. Prakash (2009) 13 SCC

229 has held that a claim of lawful title to the property cannot be adverse

possession. Thus, the suit cannot be said to be time barred.

23. The counsel for the respondents/defendants though has argued that

the Rectification Deed dated 26 th August, 1983 could not have been

executed during the pendency of the suit for possession, without the

permission of the Court, but has not supported the said argument neither by

any law or precedent nor by any legal logic. The Rectification Deed

executed in favour of the appellant/plaintiff is by a non party to the suit.

The reference by the counsel for the appellant/plaintiff to Section 52 of the

Transfer of Property Act is incomprehensible. Section 52 of Transfer of

Property Act deals with transfer of property pending a suit relating thereto.

If it is the case of the respondents/defendants that the property to which the

suit pertained was not the property purchased by the appellant/plaintiff vide

Sale Deed dated 12th May, 1954 then the rectification of the said Sale Deed

cannot bring into play Section 52 of the Transfer of Property Act. On the

contrary, if it were to be the case of the respondents/defendants that it is the

same property, then there is no transfer thereof inasmuch as all that the

Rectification Deed does is to clarify that the property subject matter of the

suit is the property which was sold to the appellant/plaintiff vide Sale Deed

dated 12th May, 1954 and there is no transfer of the said property to any

other person. Even otherwise, the purport of Section 52 is only to render the

pendente lite transfers subservient to the outcome of the suit. I fail to see, as

to how the principle of lis pendens enshrined in Section 52 is attracted to the

situation in hand.

24. Similarly, except for a bare argument that the rectification could have

been carried out within three years of the date of execution of Sale Deed and

not thereafter, no legal justification or explanation therefor was forthcoming

inspite of prodding. I am unable to find any such limitation. The

Rectification Deed in the present case is a voluntary act of the seller and

buyer of immovable property and in my view they are not prohibited by any

law from executing such a Rectification Deed after any length of time.

25. As far as the competence/authority or title of the executant of the Sale

Deed/Rectification Deed in favour of the appellant/plaintiff in concerned, a

perusal of the evidence on record shows that the colony of Majlis Park,

Delhi was developed by M/s. Cheap Housing Company on village land

owned by persons in whose name the same stood in revenue records, by

executing Sale Deeds of plots in the said colony as attorney of the said

owners of the said land. There is evidence of Sh. Brij Nandan son of Ram

Swaroop, being owner of the village land and Sh. Thakur Das of M/s. Cheap

Housing Company being the Attorney of the land owners and executing

Sale Deeds in favour of purchasers. There is no basis for the plea of

collusion between the appellant/plaintiff and the said Sh. Thakur Das. In

any case, once the respondents/defendants have given up their defence of

setting up title to the property in themselves, their locus to challenge the title

document in favour of appellant/plaintiff is in a narrow domain. Thus, there

is no merit in the challenge to the Rectification Deed on this ground also.

26. Once, it is admitted by the counsel for the respondents/defendants that

the property in possession of the respondents/defendants is the same as the

property which was sold to the appellant/plaintiff vide Sale Deed dated 12 th

May, 1954 as rectified vide Deed dated 26 th August, 1983, I have wondered

whether not it was open to the appellant/plaintiff to have, after the

Rectification Deed dated 26th August, 1983 sued afresh for recovery of

possession, even if there were any errors in the description of the property in

the plaint as earlier filed or any ambiguity as to the identity of the property.

I fail to see, as to why the appellant/plaintiff could not have done so. It was

the plea of the respondents/defendants that the property of which the

appellant/plaintiff claimed title under the Sale Deed dated 12th May, 1954

was not the property in their possession; so the fresh suit by the

appellant/plaintiff for possession on the basis of title in terms of

Rectification Deed would not have been barred. Order 23 Rule 1(3) of the

CPC also entitles a plaintiff to leave to sue afresh where the suit must fail by

reason of some formal defect, or there are sufficient grounds for allowing

the plaintiff to institute a fresh suit for the same subject matter. Once, it is

so, I fail to see as to what prejudice the respondents/defendants can be said

to have suffered on account of the amendment of the suit in pursuance to the

Rectification Deed.

27. The error in description appears to have occurred because the colony

was an unauthorized one, which has only now been regularized and the

plotting in which colonies is not on the basis of any layout plain sanctioned

by the municipality but by the developer only. However, the same cannot

be in negation of the title conveyed by virtue of the Sale Deed.

28. I also tend to agree with the view taken in the judgments cited by the

counsel for the appellant/plaintiff that a mere error in the description or

boundaries of the property sold in the Sale Deed cannot be in negation of

the title conveyed thereunder. It is not the case of the

respondents/defendants that the Sale Deed in favour of the

appellant/plaintiff was in collusion with the vendors therein (the plea of

collusion is only with respect to the Rectification Deed) or that there was no

land to which the same pertains. It is not their case that plot No.A-199 in

the colony of Majlis Park, Delhi was sold by the developers of the said

colony to any other person. In all these years, since when the proceedings

are pending, no other person has come forward to claim title thereto.

Though the respondents/defendants had earlier set up title in themselves to

the said plot but have given up the same now. The appellant/plaintiff has

thus but to be necessarily held to be the owner of the said land under the

Sale Deed dated 12 th May, 1954 as rectified vide Deed dated 26 th August,

1983 and axiomatically to recovery of possession thereof.

29. It is also necessary to deal with the finding of the learned ADJ on

Issue No.(1) supra of the suit being bad for non-compliance of Order 7 Rule

3 of the CPC. The same requires that when the subject matter of the suit is

an immovable property, the plaint shall contain a description of the property

sufficient to identify it and in case such property can be identified by

boundaries or numbers in a record of settlement or survey, the plaint shall

satisfy such boundaries or numbers.

30. The last amended plaint describes the property, for recovery of

possession of which the suit is filed, as house No.A-199, admeasuring 180

sq. yds. in area forming part of Block-A, Majlis Park, Delhi. I fail to see, as

to how the said description of the property is not sufficient within the

meaning of Order 7 Rule 3 of the CPC to identify it. The requirement to

specify the boundaries as per Order 7 Rule 3 of the CPC is only if the

property can be identified by such boundaries in a record of settlement or

survey. I have not found any averment in the written statement that the

property qua which the suit had been filed could be identified by boundaries

in a record of any settlement or survey. The Full Bench of the Allahabad

High Court in Ganesh Vs. Sri Ram Lalaji Mahraj Birjaman Mandir

MANU/UP/0045/1973 has held that if independently of the boundaries, the

property can be sufficiently identified, then any error or misdescription in

the boundaries cannot affect either the suit or the decree passed therein. I

respectfully concur. Here, as aforesaid there is no dispute that plot No.A-

199 was sold to the appellant/plaintiff vide Sale Deed dated 12 th May, 1954

and the plot of which respondents/defendants are in possession is admitted

to be plot No.A-199. Only, the boundaries as per the Sale Deed were not as

per the site plan. The question thus was not of non-compliance with Order 7

Rule 3 of the CPC.

31. Though the counsels for the respondents/defendants have made much

out of the repeated amendments to the plaint carried out by the

appellant/plaintiff and which appears to have swayed the learned ADJ also,

but I fail to see, as to what difference the same makes. It is not as if, all the

said amendments pertain to the description of the property only. The first of

the amendments was necessitated inasmuch as the suit was originally filed

against Sh. Tarseem Chand Jain and Sh. Sat Pal Garg and upon their setting

up title to the land in the name of their wives in the written statement, the

impleadment of their wives was necessitated. Moreover, all the said

amendments, were after due permission of the Court and the amendment

once permitted, in the absence of any observation to the contrary in order

allowing amendment, relates back to the date of institution of the suit (see

Siddalingamma Vs. Mamtha Shenoy (2001) 8 SCC 561). The orders

permitting the amendments have attained finality and have not been

challenged in these proceedings also.

32. In the light of the aforesaid, need is not felt to deal with the judgments

cited by the counsel for the respondents/defendants mentioned in paragraph

17 above. As far as the compilation of judgments mentioned in paragraph 20

above handed over by the counsel for the respondents/defendants are

concerned, though the practice of handing over such compilations without

even showing the applicability thereof has to be deprecated but I have

perused the said judgments and find them to be concerning claims in Court

for rectification of documents and to which claims the Limitation Act

applies and on the aspect of requirement of pleading of mutual mistake or

fraud for such relief and both of which aspects have no applicability to the

present controversy. Reference may however be made to Khalil Nahak and

S. Padmasankar supra of the Orissa and Karnataka High Courts

respectively dealing Section 52 of the Transfer of Property Act. The Single

Judge of the Orissa High Court did indeed hold a Rectification Deed to be

hit by Section 52 supra and for that reason refused to consider the same in

support of the claim for title. Section 52 undoubtedly, besides prohibiting

transfer, also prohibits otherwise dealing with the property subject matter of

the suit. I have already observed above that according to the

respondents/defendants, the land in their possession was not the land for

recovery of which suit had been filed on the basis of Sale Deed dated 12 th

May, 1954. In the face of such a plea, the respondents/defendants cannot on

the other hand claim that the land conveyed under the Sale Deed was the

land in their possession. I am also, with respect, unable to agree with the

view taken by the Orissa High Court in Khalil Nahak. Section 52 as

aforesaid statutorily enshrines the doctrine of lis pendens which rests on the

foundation that it would plainly be impossible that any action or suit could

be brought to a successful termination if alienations pendente lite were

permitted to prevail (see Sefali Roy Chowdhary Vs. A.K. Dutta (1976) 3

SCC 602). A mere correction/rectification got done by the plaintiff of the

title document on the basis of which the plaintiff sued cannot amount to

alienation of the property. It is not as if the appellant/plaintiff has become

the owner of the property in possession of the respondents/defendants vide

Rectification Deed itself and had no title therein prior thereto, as already

held above. Also the effect of the doctrine of lis pendens is not to annul all

voluntary transfers effected by the parties to a suit but only to render it

subservient to the rights of the parties thereto and to make the transferee

bound by the decree in such suit. The appelant/plaintiff at the time of

institution of the suit also claimed to be the owner of the property No. A-

199 in possession of the respondents/defendants and all that the

Rectification Deed has done is to have corrected the error in description of

the boundaries thereof. Similarly, the Karnataka High Court held the

Rectification Deed got executed during the pendency of the suit to be not

entitled to be considered for the reason of both parties thereto claiming title

through the same vendor and which was held to be the reason for the

prejudice caused to the other party. Here as aforesaid no prejudice has been

caused to the respondent/defendant.

33. I am therefore unable to agree with the view, reasoning and logic of

the learned ADJ and which cannot thus be upheld. The appeal is allowed

and the impugned judgment and decree of dismissal of suit for recovery of

possession filed by the appellant/plaintiff set aside. Resultantly, the suit

filed by the appellant/plaintiff for recovery of possession is allowed and a

decree for recovery of possession of plot No.A-199 admeasuring 180 sq.

yds. in the colony of Majlis Park, Delhi and in possession of the

respondents/defendants is passed in favour of the appellant/plaintiff and

against the respondents/defendants.

34. As far as the claim of the appellant/plaintiff for mesne

profits/damages is concerned, a perusal of the evidence led shows the

appellant/plaintiff to have deposed that the plot in question can fetch rent of

Rs.200/- per month and the respondents/defendants to have not cross-

examined him on the said aspect. Rather, the respondents/defendants

challenged the valuation given by the appellant/plaintiff of the market value

of the plot and which plea of the respondents/defendants was accepted and

the appellant/plaintiff asked to pay higher court fees. Even otherwise, claim

of mesne profits/damages at the rate of Rs.200/- per month is found to be on

the lower side only. Though the proceedings have remained pending for

over three decades and in which the rates of rent have galloped but in the

absence of any evidence and considering the fact that the possession sought

was only of plot of land in an unauthorized colony which has only now been

regularized, it is not deemed fit to grant any increases. The

appellant/plaintiff is thus found entitled to mesne profits/damages for use

and occupation from the date of institution of the suit and till the date of

possession at the rate of Rs.200/- per month. The appellant/plaintiff shall

also be entitled to interest @ 10% per annum on arrears of mesne

profits/damages from the last day of each month for which mesne

profits/damages are due and till the date of payment.

35. A decree is accordingly passed in favour of the appellant/plaintiff and

against the respondents/defendants for recovery of possession by

demolishing the structure raised by the respondents/defendants, if not

removed by the respondents/defendants themselves and by removing

whomsoever may in possession thereof. A decree for mesne profits/damages

for use and occupation with interest as aforesaid is also passed in favour of

appellant/plaintiff and against the respondents/defendants jointly and

severally. The appellant/plaintiff shall also be entitled to costs of the suit

and costs of this appeal.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

OCTOBER 25, 2013 bs