Abhishik Singh vs Shehnaz Begum & Ors
2014 Latest Caselaw 4553 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CS(OS) 74/2012
%                                      Date of Decision : 17th September, 2014

        ABHISHIK SINGH                                    ..... Plaintiff
                 Through:           Mr.Pramod Ahuja, Advocate

                           versus

        SHEHNAZ BEGUM & ORS                    ..... Defendant
                Through: Mr.N.K. Jain, Adv for defendants 1 to 7
                Mr.Sradhananda Mohapatra and Mr.VIpin, Singh,
                Advocates for defendants No.8 to 12.

        CORAM:
           HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J. (ORAL)

I.A. 16224/2012 (u/O.12 Rule 6 CPC)

1. Plaintiff has filed the present suit seeking cancellation of sale deed dated 11.6.2009 which has been executed by defendants no.8 to 12 in favour of defendants no.1 to 7; and also symbolic possession given by defendants no.8 to 12 in favour of defendants no.1 to 7.

2. Plaintiff has filed the present application under Order 12 Rule 6 CPC seeking a decree on admission.

3. The necessary facts to be noticed for disposal of this application and as set out in the plaint are that one Smt.Pratibha Singh was the owner of the property bearing No.836 - 837 (old), 1230 (new), Ward No.X, situated at Rakabganj, behind Delite Cinema, New Delhi, measuring 899 sq. yds. Smt.Pratibha Singh was the grand-mother of the plaintiff, herein, and had purchased the suit property from the husband of defendant no.9, who was

the father of defendants no.8, 10 to 12 vide a registered sale deed dated 6.8.1965 for a total sale consideration of Rs.1.10 lacs. This original sale deed is stated to have been filed by the plaintiff in these proceedings. The name of Smt.Pratibha Singh was also entered in the records of the Municipal Corporation of Delhi. Being a widow, she could not manage the property, which comprised of 26 unauthorized occupants. As per the plaintiff, he was in occupation even at the time of purchase of the property by Smt.Pratibha Singh, which fact finds mention in the sale deed executed by the husband of defendant no.9. Smt.Pratibha Singh died on 8.1.2004; her son Pranav Pratap Singh had pre-deceased her, leaving behind his widow Smt.Rajshree Singh and one son i.e. the plaintiff herein and two daughters.

4. Smt.Pratibha Singh during her lifetime executed a Will dated 30.1.2001 by which she bequeathed the property in favour of the present plaintiff i.e. her grand-son; and a probate was also granted by the Court in favour of the plaintiff. In the absence of Smt.Pratibha Singh actively looking after the suit property, some unknown persons, who had an evil eye on the property of the plaintiff, started negotiating with defendants no.8 to 12 who wanted to buy the said property. Further as per the plaint, the defendants No.1 to 7 conspired with defendants no.8 to 12, knowing fully well that the deceased, Jyoti Chander Bhattacharya, who was the husband of defendant no.9 and father of defendants no.8 and 10 to 12 had already sold the property in favour of late Smt.Pratibha Singh in the year 1965. The said defendants i.e. defendants no.8 to 12 despite being aware of this sale, after a lapse of 45 years executed a registered sale deed in favour of defendant no.1 on 11.6.2009.

5. It is the case of the plaintiff that defendant no.8 to 12 had no right, title or interest left in the suit property after late Sh. Jyoti Chander Bhattacharya

had sold the same to late Smt.Pratibha Singh by a registered sale deed in the year 1965 for a sum of Rs.1.10 lacs.

6. It is the case of the defendants no.1 to 7 that they are bona fide purchasers as they purchased the property on the assurance given by defendants no.8 to 12 that the property was free from all encumbrances and on the basis of a certified copy of the sale deed in favour of Jyoti Chander Bhattacharya.

7. During the pendency of this matter, the case has taken an interesting turn.

The defendants No.8 to 12 have now made a statement, and also taken a stand in reply to the application under Order 12 Rule 6 CPC as well as in their written statement that they executed the sale deed in favour of defendants no.1 to 7 inadvertently and being misled by defendants no.1 to 7 that the property belonged to their father/husband.

8. It is the case of the plaintiff that on the basis of this admission made by defendant nos.8 to 12 the present application under Order 12 Rule 6 CPC has been filed. It is the case of the plaintiff that the admission made by defendants no.8 to 12, who have executed the sale deed in favour of the defendants no.1 to 7 is clear, equivocal and specific.

9. Counsel, who appears on behalf of defendant no.8 to 12 states on instructions that the defendants no.8 to 12 stand by their admissions made in their written statement, reply to the application under Order 12 Rule 6 CPC as well as statement made in court, and that they were not aware of, at the time the sale deed was executed in favour of defendant nos.1 to 7, that in fact they had no right, title or interest in the suit property and they could not have sold the suit property to the defendant nos.1 to 7.

10. Attention of the Court is drawn to paragraphs 10 of the written statement filed by defendants no.8 to 12. Paragraphs 8 to 13 are reproduced below:

"8. While the answering defendants were having coffee, Mr.Tahir brought a Sale Deed, typed on a stamp paper which they rigorously perused, and were satisfied with the contents of the document. He told the answering defendants that they would have to wait a while for their turn to come to go to the Sub-Registrar for their final signatures. Then he finally came and took the answering defendants to the office, just a little distant away, which was a very crowded hall. Somehow a place for Smt.Anila Devi to sit was found. Mr.Tahir introduced the answering defendants to quite a few burqua-clad ladies, his relatives, as the buyers. The Sub- Registrar and his assistants sat on a higher platform while the crowd was jostling in front of them. Mr.Tahir told the answering defendants that when asked as to whether they have received the „full & final‟ payment, they should say in the affirmative. When their turn came, the answering Defendants had to somehow fight their way to the front, near the dias, one by one and somehow put their signatures (in case of Smt. Anila Devi, her RTI), wherever they were directed by the Court Assistant.

9. When asked by the personnel present in the Sub-Registrar‟s office whether they had received the „full‟ payment the answering defendants all answered in the affirmative. It is submitted that the exact amount was not specified and the answering defendants assumed that a reference was being made to the figure of Rs.5.0 lacs which they had been paid, as agreed. Thereafter, Mr.Tahir assured the answering defendants that after the entire process was over, which would take a few weeks, he will come and give the answering defendants a copy of the documents. This he never did.

10. After receiving the notice from EOW (Crime Branch Delhi Police) answering defendant no.8 perused the reference to the sale deed mentioned in notice and applied for the certified copy of the sale deed which was executed by the answering defendants in June, 2010 at the office of Sub-Registrar. On perusing it the answering

defendants found that some of the pages, from the one which they were shown by Tahir at the restaurant, had been cleverly replaced and fabricated. The discrepancy between the two documents is mainly on the pages where the consideration amounts were mentioned. This registered Deed records that Rs.45.0 lacs were paid to the answering defendants whereas actually only Rs.5.0 lacs were paid. Also on page 2 wherein it mentions the execution of the Sale Deed as 11.6.2009 whereas actually it was signed and executed in June, 2010.

11. It clearly appears that some of the pages of sale were replaced after it was originally shown to the answering defendants. The signatures were obtained when the answering defendants were made to sign some pages in the Sub-Registrar‟s office.

12. It is further submitted that the answering defendants themselves have been duped and induced by Sh.Tahir, who completely misused the trust reposed in him by them under a mistaken belief that the sale transaction which the answering defendants were made to enter into was legitimate and genuine.

13. It is submitted that Sh.Tahir has mischievously got mentioned in the sale deed that the entire amount of Rs.45,00,000/- (Rs. Forty Five Lacs) was paid in cash, but he has failed to place on record any documents related to payment. Furthermore, he has also failed to produce the source of funds pertaining to substantial amounts of Rs.45,00,000/- (Rupees Forth Five Lacs) which Sh.Tahir claims was paid to the answering defendants. It is very clear from the abovesaid facts that Sh.Tahir has tried to legalize the entire transaction on the basis of stamp duty paid by the defendant Nos.1 to 7 at the time of registration of sale-deed, although no such amounts, which have been mentioned in sale deed, have been paid to the answering defendants."

11. Reliance is also placed on paragraphs 13 and 14 of the written statement on merits, which are reproduced below:

"13. Contents of paragraph 13 of the plaint are wrong and denied. It is vehemently denied that the fraud has been played by the defendant nos.8 to 12 in connivance and collusion with defendant nos.1 to 7. It is submitted that on the basis of misrepresentation made by Sh.Tahir, defendant nos.8 to 12 executed the sale deed in question. It is vehemently denied that the set of answering defendants were aware of the fact that the suit property belongs to Late Pratibha Singh. It is also submitted that the defendant nos.8 to 12 had no knowledge that the suit property was sold by their deceased father and they executed the sale deed in question on the basis of representation made by Sh.Tahir and same was not intentional and was bona fide mistake. It is also denied that the plaintiff reserves his rights in filing the suit for damages suffered by the plaintiff. It is submitted that nothing has been lost by the plaintiff.

14. In response to the contents of paragraph 14 of the plaint it is submitted that the defendant nos.8 to 12 were not competent to execute the sale deed in favour of the defendants No.1 to 7 since, father of the defendant Nos.8, 10, 11 and 12 had already executed a registered sale deed in favour of deceased Pratibha Singh. It is also submitted that Sh.Tahir who is husband of defendant no.1 had misrepresented the facts and shown the certified copy of sale deed date 12.4.1965 which was in favour of father of the defendant nos.8, 10, 11 and 12, relying upon the presentation made by Sh.Tahir, answering defendants executed the sale deed in question."

12. Mr.Jain, counsel for defendants no.1 to 7 submits that the present application is not maintainable, as there is no admission, much less a clear, unequivocal admission on the part of the defendants no.8 to 12. It is further submitted that defendants no.1 to 7 are bona fide purchasers having purchased the suit property by means of registered sale deed and after paying substantial sale consideration to the sellers, defendants no.8 to 12. He further submits that defendants no.8 to 12 had claimed themselves to be the legal heirs of late Sh. Jyoti Chander Bhattacharya, who was the original owner of the property in question. This fact finds mention in the sale deed. It has also been mentioned that Sh. Jyoti Chander Bhattacharya had died intestate on 31.3.1973 and defendants no.8 to 12 being the only legal heirs, are absolute / joint / co-owners of the suit property.

13. It is submitted that defendants no.8 to 12 in connivance with the plaintiff have filed the present application, moreover despite receipt of the sale consideration the defendants no.8 to 12 had neither refunded the same to the defendants no.1 to 7 nor have they sought cancellation of the sale deed.

14. It is also submitted that the admission is not binding on defendants no.1 to 7 and moreover during the admission / denial of documents the defendants no.8 to 12 have denied the sale deed dated 6.8.1965.

15. In rejoinder, counsel for the plaintiff has submitted that there is no connivance between the plaintiff and defendants no.8 to 12 and in fact the plaintiff has lodged an FIR against the defendants no.8 to 12 and thus the submission with regard to the connivance, is misplaced.

16. Counsel appearing for defendants no.8 to 12 submits that the sale deed was denied, as they are not the signatory to the sale deed and according to them, the forgery was unearthed when the FIR was lodged by the plaintiff.

It was at that stage, the defendants no.8 to 12 examined the sale deed dated 11.6.2009, which was executed, and they found that the defendants no.1 to 7 had changed certain pages of the sale deed and that the sale consideration mentioned in the sale deed is Rs.45.0 lacs whereas only Rs.5.0 lacs was paid and other changes were also made in the sale deed.

17. I have heard counsel for the parties and considered their rival submissions. It is well settled that the object of Order 12 Rule 6 CPC is to enable the party to obtain speedy justice on the basis of admission, provided the admission is clear, unambiguous, unconditional and unequivocal. In the case of Usha Rani Jain Vs. Nirulas Corner House Pvt. Ltd. ILR (2005) II DELHI 349, it was held:

"18. The object of Order XII Rule 6 CPC is to enable a party to obtain a speedy judgment, at least, to the extent of the admissions of the defendant to which relief the plaintiff is entitled to. The rule permits the passing of the judgment at any stage without waiting for determination of other questions. It is equally settled that before a Court can act under Order 12 Rule 6, the admission must be clear, unambiguous, unconditional and unequivocal. Admissions in pleadings are either actual or constructive. Actual admissions consist of facts expressly admitted either in pleadings or in answer to interrogatories."

18. In the case of Uttam Singh Dugal & Co. Ltd. vs. Union Bank of India & Ors., (2000) 7 SCC 120, a contention was raised on behalf of the appellant, that admissions under Order XII Rule 6 CPC should be only those which are made in the pleadings, and, in any event the expression "either in pleadings or otherwise" should be interpreted ejusdem generis. The Apex Court while rejecting the aforesaid contention, has held that the Court should not unduly narrow down the application of the provisions of

Order XII Rule 6 CPC as the object is to enable a party to obtain speedy judgment. Relying upon the observations made in the abovesaid case, the Apex Court in the case of Charanjit Lal Mehra and Ors. vs. Kamal Saroj Mahajan (Smt.) and Anr., (2005) 11 SCC 279 construed the provisions of Order XII Rule 6 CPC to include admissions that could be "inferred" from the facts and circumstances of the case, and opined that Order XII Rule 6 CPC is enacted for the purpose of and in order to expedite the trials. The Court observed:

"If there is any admission on part of the defendants or an admission that can be inferred from the facts and circumstances of the case (emphasis added) without any dispute then, in such a case in order to expedite and dispose of the matter such admission can be acted upon."

19. [Also see Karam Kapahi and Ors. vs. Lal Chand Public Charitable Trust and Anr., (2010) 4 SCC 753].

20. In this case the basic facts are not in dispute that the suit property was sold by defendant no.8 to 12 to defendants no.1 to 7 in the year 2010. It is the case of the plaintiff that initially one Smt.Pratibha Singh, was the owner of the suit property. Smt.Pratibha Singh was the grand-mother of the plaintiff and she had purchased this property from the husband of defendant no.9 and father of defendant nos.8, 10 to 12 by a registered sale deed dated 6.8.1965. The original sale deed has been filed on record of this court. It is also established on record that the name of Smt.Pratibha Singh was entered in the records of the Municipal Corporation of Delhi. Smt.Pratibha Singh executed a Will on 30.1.2001 by which she bequeathed the property in favour of the present plaintiff (her grand-son), the said Will also stands probated.

21. The suit property was sold by defendants no.8 to 12 on the basis of a certified copy of the sale deed in the name of Sh.Jyoti Chandra Bhattacharya. There is no explanation on the part of the defendants no.1 to 7 as to why they did not insist on the original title documents. In paragraph 13 of the written statement the defendant nos.8 to 12 have categorically made an admission that the said defendants were not aware that the suit property belongs to late Smt.Pratibha Singh. They had no knowledge that the suit property was sold by their deceased father and they executed the sale deed on the basis of representation made by Sh.Tahir and that the same was not intentional and was a bona fide mistake.

22. In paragraph 14 of the written statement, defendants no.8 to 12 have made a categorical assertion that they were not competent to execute the sale deed in favour of defendants no.1 to 7, since their father had already executed a registered sale deed in favour of deceased, Smt.Pratibha Singh.

23. In the light of the clear admission made by defendant no.8 to 12 and having regard to the fact that the original title deeds are in the possession of the plaintiff, the sale deed dated 11.6.2009 executed by defendants no.8 to 12 in favour of defendants no.1 to 7 is liable to be cancelled.

24. Having regard to the categorical admission made by the executants of the sale deed in favour of the defendants no.1 to 7, admitting that they had no right, title or interest to execute the sale deed, and moreover alleging that the defendants no.1 to 7 had in fact even played a fraud upon them to the extent that Rs.5.0 lacs were paid but in the actual sale deed the consideration has been shown as Rs.45.0 lacs and further that pages of the sale deeds were replaced, the present application is allowed. The suit [CS(OS) 74/2012] is decreed in favour of the plaintiff and against the defendants. It is, however, made clear that all legal rights of the

defendants no.1-7 are kept open qua defendants no.8-12. Decree-sheet be drawn up accordingly.

I.A. 532/2012

25. Application stands disposed of.

G.S.SISTANI, J SEPTEMBER 17, 2014 ssn