Dr. Ramesh Gupta vs M/S. Saj Property Pvt. Ltd. & Ors.
2014 Latest Caselaw 4546 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CM(M) No.472/2012 and C.M. No.7266/2012 (stay)

%                                                    17th September, 2014

DR. RAMESH GUPTA                                   ......Petitioner
                           Through:      Mr. Atul Batra, Advocate with Mr.
                                         B.N. Sharma, Advocate.



                           VERSUS

M/S. SAJ PROPERTY PVT. LTD. & ORS.                  ...... Respondents

Through: Mr. Surender Sheoran, Advocate for respondent Nos.1,2,5 and 6.

Mr. Ajay Veer Singh Jain, Advocate for respondent No.4.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this petition under Article 227 of the

Constitution of India is by the plaintiff in the suit one Dr. Ramesh Gupta to

the impugned orders dated 13.3.2012, 19.3.2012 and 21.3.2012. Essentially

what is challenged is the order dated 13.3.2012 because the subsequent

orders dated 19.3.2012 and 21.3.2012 are only consequential orders for

implementation of the earlier order dated 13.3.2012.

2. By the impugned order dated 13.3.2012, two applications under

Order I Rule 10 read with Section 151 of the Code of Civil Procedure, 1908

(CPC) were allowed, one having been filed by M/s Vardhman Adhyatmik

Sansthan (Regd.), a society registered under the Societies Registration Act,

1860 and another application moved by two persons Sh. Anand Kumar and

Gajraj Singh. Really the main grievance is with respect to the application

under Order I Rule 10 CPC moved by M/s Vardhman Adhyatmik Sansthan

(Regd.) which has been allowed and directions have been issued against the

plaintiff/petitioner to remove his locks from the main gate of the temple

which were put pursuant to an interim order dated 1.12.2011, passed not

against the society but against the defendant nos. 1 and 2 to the suit

(respondent nos. 1 and 2 herein).

3. A reading of the plaint shows that the plaintiff filed the subject

suit for the suit property which is described to be having an area of 6 biswas

i.e 300 sq yds and forming part of khasra no.8/9 Min, situated at Doctor's

Enclave Society, in the Revenue Estate of village Salahpur, Tehsil Vasant

Vihar, New Delhi. A reading of the plaint, as also its prayer clauses, shows

that the entire plaint pertains only to this suit property i.e 300 sq yds in

khasra no.8/9. No other property or portion of any other area of any other

property or even other area of the same khasra number is referred to and

relief so claimed in the plaint as being the suit property. Rights are claimed

by the petitioner/plaintiff only and only in the suit property of 300 sq yds

which are said to arise by virtue of the documents dated 13.6.2007, which

are an agreement to sell and general power of attorney, executed in favour of

the petitioner/plaintiff by the defendant no.1 in the suit/respondent no.1

namely M/s. Saj Properties Pvt. Ltd. acting through the defendant

no.2/respondent no.2, Mrs. Sangeea Ahlawat, Director of the defendant

no.1/respondent no.1. The applicant/society M/s Vardhman Adhyatmik

Sansthan (Regd.) claims that it had purchased the rights in the area of 1411

sq yds for a sum of Rs.1.30 crore from defendant Nos.1 and 2/respondent

nos.1 and 2 i.e M/s. Saj Properties Pvt. Ltd. and Smt. Sangeeta Ahlawat, and

out of the total amount of Rs.1.30 crore, a sum of Rs.1 crore was already

paid. The applicant-society claimed to be in possession of the property

purchased by them since 16.10.2011 and a small pooja was also organized

on Diwali i.e on 26.10.2011 followed by a Grand Murti Sthapna function on

27.11.2011, and of which event various photographs have also been filed.

The rights which are claimed by the applicant are on the basis of certain

receipts showing payments having been made to the defendant nos.1 and 2

in the suit/respondent nos. 1 and 2, and that the applicant has already filed a

suit for specific performance against the defendant nos.1 and 2/respondent

nos. 1 and 2 with respect to the 1411 sq yds, and which suit is pending in

the original side of this Court.

4. Trial court in the impugned order notes that the documentation

relied upon by the petitioner/plaintiff cannot help the petitioner because

these documents are of the year 2007 and unregistered documents being the

agreement to sell cannot create any rights or entitlement to possession under

Section 53A of the Transfer of Property Act, 1882 because this section was

amended by Act 48 of the year 2001 w.e.f 24.9.2001 whereby no rights in

the nature of part performance under Section 53A can be claimed under an

agreement to sell, if the agreement to sell is unregistered and unstamped.

Since the petitioner/plaintiff could not have and cannot claim possession by

part performance under the illegal documentation dated 13.6.2007,

consequently, there did not arise any rights in favour of the

petitioner/plaintiff for him to secure interim orders from the trial court and

purportedly against defendant nos. 1 and 2 in the suit but which were really

against the society, which earlier orders have been effectively set aside by

the impugned orders. Admittedly, the agreement to sell relied upon by the

petitioner/plaintiff is unregistered and unstamped and therefore no rights

whatsoever can be legally established by the petitioner/plaintiff pursuant to

the documentation dated 13.6.2007. Once the rights claimed by the

petitioner/plaintiff on the basis of the documentation dated 13.6.2007 go,

then possibly in fact, the suit as a whole will also go because the entire basis

of the suit is of the illegal documents dated 13.6.2007 which confer no right,

title and interest upon the petitioner/plaintiff. Of course, I am not finally

observing one way or the other on this aspect, and which aspect will be

decided by the trial court in accordance with law. I am making these

observations with respect to invalidity of the documentation dated 13.6.2007

inasmuch as once no rights under the same can be claimed, surely possession

of the suit land thereunder cannot also be claimed even assuming the 300

sq yds purchased by means of the documents include the land on which the

applicant M/s Vardhman Adhyatmik Sansthan (Regd.) claims to have

received possession w.e.f 26.10.2011. In fact, even if the documents dated

13.6.2007 are for arguments sake taken as valid, yet, there is nothing in these

documents to show, much less an attached site plan, that the 300 sq yds

stated in these documents is of the land which forms part of the 1411 sq yds

purchased by the society from the defendant nos. 1 and 2 in the

suit/respondent nos. 1 and 2.

5. It is trite that if an interim order affects third party rights, such a

third party can move an application under Order I Rule 10 CPC for being

added as a party and also for vacating the interim order dated 1.12.2011

because otherwise it would mean that plaintiff and a defendant in a collusive

suit can obtain effectively an order against a third party although that third

party has a right but is not a party to the suit. In law, no order can be granted

in favour of a person without actually the affected party being heard much

less an order of an interim nature by which possession is taken. Since in the

present case the interim order was passed in favour of the petitioner/plaintiff

which had the effect of dispossessing the applicant society M/s Vardhman

Adhyatmik Sansthan (Regd.), the interim order passed could rightly have

been sought to be vacated by the applicant-society in its application under

Order I Rule 10 CPC alongwith an application under Section 151 CPC.

Trial court rightly notes that though the documentation dated 13.6.2007 is

only for 300 sq yds, in the garb of the suit and by these documentation,

possession and control of a much much larger area of over 1600 sq yds is

sought to be taken by the petitioner/plaintiff. It may be noted that the trial

court notes that defendant nos.1 and 2/respondent nos. 1 and 2 have not

appeared in the suit and were proceeded exparte, and which aspect in my

opinion makes the collusion between the petitioner/plaintiff and the

defendant nos.1 and 2/respondent nos. 1 and 2 very clear.

6. The relevant observations of the trial court in the impugned

order dated 13.03.2012, and which are completely justified, for granting

relief to the society, read as under:-

"In the present case the plaintiff has claimed himself to be owner of area of 6 biswa i.e 200 sq yds (2700 sq ft) as shown in the site plan in red color, though in the site plan plaintiff has shown one Nav Durga Temple of area 20X25 sq yds i.e 500 sq ft encircled in red boundary having four sides of 220'x60'x245'x 60'area i.e area of 13000-14000 sq ft. It is also pertinent to mention here that GPA, Agreement to Sell does not specifically shows that where that 300 sq yds area of the plaintiff is situated. It is pertinent to mention here that when during the course of arguments court generally asked from the plaintiff that how much area belongs to him to which he replied more than 1600'' sq yds but he could not show any documents in support of his allegation. Therefore, the plaintiff cannot be allowed to use a wrong specification of its property against any person and it is his duty to tell to the court where his property is situated. It is also pertinent to mention here that all the documents in favour of the plaintiff are un-registered documents and they are simply notorized which does not confer any right, title or interest in favour of plaintiff in any manner whatsoever and plaintiff on the strength of these documents cannot have the right to retain the possession of the land against the transferor i.e defendant No.1and 2 in terms of provision of Section 53(A) of Transfer of Property Act. For transfer of possession it is mandate of the law that agreement to sell should be registered after payment of necessary stamp duty on the consideration amount which has not

been in this case, though if we see the stand of the applicant, the photographs placed on record by them clearly shows that possession of the temple was handed over to them by the original owner i.e defendant No.2 and that is why after receiving of Rs.1 crore out of 1.30 crore after which possession of the property was given to the applicant and they have not claimed any threat from the side of defendant No.2 against their possession and they can be safely termed as permissible user of the suit property till Sale Deed is executed of their favour as they have already filed a specific performance suit before Hon'ble Delhi High Court. Even SHO PS Kapashera in his status report stated that plaintiff is claiming himself the owner of 6 biswa has put locks on the entire premises and has got his name written on the gate and now he is not providing any documents to the IO as a result of which further inquiry is held up. The claim of the plaintiff that idol were stolen from the temple type structure have not been found to be reported with the police station and from the inquiry several facts have emerged from the statement of Sangeeta Ahlawat, Anad, Gajraj Rana and Shikhar Chand Jain which require further inquiry. It is submitted that it is plaintiff who had brought material to carry out the construction and now he is claiming his ownership of around 1700 sq yds of land on the basis of documents of 6 biswa only. All these facts clearly shows that plaintiff is trying to take advantage of the order of Ld. Predecessor of the court passed on 01-12-2011 and he is trying to defeat the claim of the applicant. It is also pertinent to mention here that defendant No.1 and 2 have not appeared before this court despite their service and they were proceeded ex parte. In view of above mentioned facts and circumstance application U/o 1 Rule 10 CPC is allowed as it is the applicant who is having a conflicting interest in the suit property and therefore applicant M/s Vardhman Adhyatmik Sansthan (Regd) is impleaded as defendant No.4 and plaintiff is directed to remove the locks from the main gate and temple so that the applicant M/s Vardhman Adhyatmik Sansthan (Regd) and other devotees may perform their daily rituals and pooja at the Jain Temple in the suit property till the disposal of the suit." (underlining added)

7. Counsel for the petitioner/plaintiff very valiantly tried to make

out a case with respect to an area more than the area of 300 sq yds, however,

in my opinion, the argument is totally frivolous because a reading of the

plaint shows that the only rights which are claimed are only and only under

the documents dated 13.6.2007 and which documentation is only for six

biswas i.e 300 sq yds of the property. Therefore, I fail to understand as to

how rights which are claimed under the subject matter of the suit or the

documentation dated 13.6.2007 can be for an area of more than 300 sq yds,

either in the suit and definitely not by an interim application. The orders

dated 19.3.2012 and 21.3.2012 are really consequential orders to ensure

compliance of the order dated 13.3.2012 by which petitioner/plaintiff was

directed to remove his locks but which were not removed and consequently

which were allowed to be removed by the applicant by the subsequent orders

dated 19.3.2012 and 21.3.2012.

8. In view of the above, this petition is a gross abuse of the

process of law and is therefore dismissed with costs of Rs.25,000/- and

which costs shall be paid within six weeks from today to the society.

SEPTEMBER 17, 2014/Ne                              VALMIKI J. MEHTA, J