Gurcharan Singh vs Saraswati Mishra & Ors
2015 Latest Caselaw 3286 Del

$~A-9
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                      Date of decision: 23.04.2015

+     CS(OS) 821/2012
      GURCHARAN SINGH                                 ..... Plaintiff
                  Through             Mr.V.P.Rana, Advocate

                         versus

      SARASWATI MISHRA & ORS                 ..... Defendant
                  Through  Mr.Dinesh Garg and Ms.Uditi
                           Khattar, Advocates for D-1 & D-3

CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

IA No.5789/2012 & 2808/2014

1. IA No.5789/2012 is filed by the plaintiff seeking ad interim injunction. This application came up for hearing on 13.4.2012 when this Court passed an ex parte ad interim injunction restraining the defendant No.3 from creating any third party interest in respect of suit property, i.e.agricultural land measuring 20 Bighas, 8 Biswas comprising in Khasra No.47/16 (4-16), 46/21(4-16), 20 (4-16), 19 (4-16), 22/1 (0-4), 22/2Min (1-0) situated at village Rafipur, Ranhola, New Delhi till further orders. IA No.2808/2014 is filed by defendant No.3 under Order 7 Rule 11 CPC for rejection of the plaint read with Order 39 Rule 4 CPC for vacation of the above interim order. In the course of arguments learned counsel for the defendant has submitted that the defendant does not press the prayer in IA No.2808/2014 under Order 7 Rule 11 CPC for dismissal of the

plaint.

2. The suit is filed by the plaintiff seeking a decree of declaration for declaring the sale deed dated 31.8.2010 executed by defendant No.1 in favour of defendant No.3 as null and void and not binding on the plaintiff and for a decree of cancellation of the said deed and other connected reliefs. The brief facts are that the plaintiff claims to be the bonafide purchaser of agricultural land measuring 20 bighas 8 biswas in village Rafipur, Ranhola, New Delhi stated to be purchased for a consideration of Rs.4 lacs from the defendant No.1 through her attorney defendant No.2 vide sale deed dated 05.03.2001. Possession is also stated to have been handed over to the plaintiff by the vendor on the spot. It is elaborated that defendant No.2 purchased a total land of 28 Bighas 16 Biswas for Rs.16 lacs in respect of which a written receipt was executed by defendant No.1 in favour of defendant No.2 on 28.8.2000. It is out of this 28 Bighas and 16 Biswas that the plaintiff purchased land measuring 20 Bighas and 8 Biswas vide sale deed dated 05.03.2001. The mutation was sanctioned by order of Tehsildar, Punjabi Bagh, New Delhi in favour of the plaintiff vide order dated 07.04.2001. Defendant No.1 challenged the said order of mutation passed by the Tehsildar in favour of the plaintiff before the Additional Collector. The Additional Collector vide order dated 16.04.2010 set aside the order of the Tehsildar. The plaintiff challenged the order of the Additional Collector before the Financial Commissioner. The Financial Commissioner dismissed the said appeal of the plaintiff. The matter was challenged in the High Court and it is stated that the writ petition is pending. It is also pointed out that defendant No.1 has filed a separate suit in the Civil Court at Tis Hazari Courts, Delhi

whereby sale deed in favour of the plaintiff dated 5.3.2001 was challenged. The said suit it is said is still pending. It is stated that now it has transpired that defendant No.1 has in violation of an interim order of the Financial Commissioner executed a sale deed in favour of defendant No.3 on 31.8.2010. The said sale deed is what is sought to be challenged in the present suit.

3. Learned counsel appearing for defendant No.3 has strenuously urged that the present suit is a gross abuse of the process of the Court. He submits that defendant No.2 the alleged power of attorney holder of defendant No.1 is actually a property broker who in connivance with the plaintiff has duped defendant No.1, who it is urged is a simple lady staying in Orissa. Defendant No.1 it is urged was hoodwinked into signing some blank documents which were forged into a power of attorney by the defendant No.2. Defendant No.2 had helped defendant No.1 purchase the present suit property long back hence defendant No.1 had confidence in defendant No.2. It is pointed out that on account of the fraud done by defendant No.2 and the plaintiff an FIR was lodged against the plaintiff and defendant No.2 and the police has filed a chargesheet against plaintiff and defendant No.2. The chargesheet gives a complete description of the fraud played by defendant No.2 where plaintiff is an active party. It is pointed out that the chargesheet lists out six earlier attempts by defendant No.2 to deceive defendant No.1 and abuse the process and transfer the property in his name. It is pointed out that in the Suit filed by defendant No.1 against the plaintiff in District Courts it is very clearly described by defendant No.1 that she was promised Rs.1,10,00,000/- as sale consideration but was paid only Rs.16 lacs and

she was made to sign some blank papers by the defendant No.2. It appears that these blank papers have been converted to a power of attorney and defendant No.2 has thereafter exeuted a sale deed in favour of the plaintiff on 05.03.2001.

4. It is also pointed out by defendant No.3 that as per the sale deed dated 5.3.2001 the plaintiff claims to have paid Rs.4 lacs to the vendor, namely, defendant No.1 for purchase of 20 Bighas 8 Biswas of land. In contrast the defendant No.3 has paid Rs.94 lacs for purchase of 8 Bighas 8 Biswas of land. It is further alleged that the NOC received from the concerned revenue office shows that the agreed consideration is Rs.14 lacs and the total land which was being sold is only 14 Bighas and 8 biswas. In contrast the sale deed has been made in favour of the plaintiff for 20 Bighas 8 biswas showing a sale consideration of only Rs.4 lacs. It is pointed out that a perusal of the sale deed shows that details of the land have been interpolated in page 2 which interpolation shows additional Khasra other than the Khasras for which permission was granted by the revenue authority. Hence, there is a manipulation apparent on the face of the record as permission has been granted by the revenue authorities for a different area of land for a different consideration and sale deed has been executed for a different dimension of land for a different consideration. Hence, it is urged that on account of the fraud writ large on the face of it by the plaintiff in connivance with defendant No.2 the present stay order be vacated.

5. Learned counsel appearing for the plaintiff has on the other hand submitted that his clients have acted bonafide. Defendant No.3 has manipulated and a chargesheet has been filed by the police against the

plaintiff but no charges have been framed so far in the case. Reliance is also placed on the suit filed by defendant No.1 challenging the sale deed in favour of the plaintiff pointing out that the said suit though filed in 2001 is still pending adjudication. In view of this litigation and the fact that the plaintiff has a registered sale deed in his favour it is urged that interim orders should continue.

6. A perusal of the chargesheet filed by the police shows that details are given of the extent of conspiracy entered into by the plaintiff and defendant No.2. As per the chargesheet the plaintiff and defendant No.2 are guilty of having made six attempts to transfer the said property as follows:-

i. The first attempt was made by Defendant no.2 and plaintiff in connivance with other accused in the chargesheet, when they forged a GPA dated 13.05.1994 in favour of an employee of Defendant no.2 which was witnessed by another employee of Defendant no.2 and they tried to obtain an NOC from Tehsildar on the basis of forged GPA for selling the land to brother-in-law of Defendant no.2. The forged GPA was purportedly signed by Defendant no.1 in Hindi. Defendant no.1 therein stated that she does not sign in Hindi as she does not know the language. ii. In the second attempt Defendant No.2 fabricated documents including GPA, Agreement to Sell, Will, etc. all dated 18.01.2000 by forging defendant No.1's signatures in Hindi. The said GPA was registered before Sub-Registrar, Khurda, Orissa and on that basis a conveyance deed was executed on 28.01.2000 at Mumbai. In this connection eight persons including defendant No.2 are

facing trial in Orissa.

iii. Thereafter, in a third attempt, Defendant No.2 in collusion with one Azad Singh filed a suit before the Delhi High Court against Rajender, his employee claiming to have purchased the 28 Bigha 16 Biswa land from a fictitious person and claiming that Rajender is trying to grab the same. This suit was filed to obtain favourable order to mutate the property in their favour. The matter was eventually withdrawn on the pretext of it getting settled. iv. Fourth attempt was made by the accused when Defendant No.2 claiming himself to be Attorney of defendant No.1 executed a registered sale deed in Mumbai on 02.12.2000 in favour of his brother-in-law in respect of 28 Bighas and 16 Biswas land. v. The fifth attempt was made in August, 2000. Defendant No.2, plaintiff and other people convinced defendant No. 1 to sell her land for Rs.1.10 crores, out of which it was represented to her that Rs.60 lacs will be paid through demand drafts and for the remaining three petrol pumps will be allotted to her. They paid Rs.16 lacs to her and made her sign some blank papers which later on was used in making a forged GPA dated 28.08.2000. The accused executed a Sale Deed on 13.03.2001 by claiming himself to be the attorney of defendant no.1.

vi. As a sixth attempt, it was found during investigation that 7 Bighas 4 Biswas of land stood executed in the name of one Darya Rama and Maya Ram. This sale deed was witnessed by defendant No. 2.

7. Similarly, a perusal of the plaint filed by the defendant No.1 corroborates above allegations made in the chargesheet. Defendant No.1

in the plaint has pointed out that plaintiff therein and her husband engaged defendant No.2 and he helped them purchase the suit property comprising of 28 Bighas and 16 biswas vide sale deed of 9.11.1981. The defendant No.1 and her family had close relations with defendant No.2 who used to call her his elder sister and who used to also tie rakhi to him. The plaint further points out that defendant No.2 manufactured a GPA dated 13.5.1994 by forging the plaintiffs signatures in Hindi but defendant No.2 could not succeed in usurping the aforesaid land. Other instances where attempts were made to grab the land in question by defendant No.2 have also been listed out. Finally, it is averred that the defendant No.2 offered to purchase the said land orally for a total consideration of Rs.1,10,00,000/- Four drafts amounting to Rs.16 lacs on 1.9.2000 were handed over as advance. Defendant No.2 also handed over one more demand draft of Rs.3 lacs being the price of usufructs of the above land and requested the plaintiff to sign two back dated receipts of 28.08.2001 in the name of defendant No.2 and another in the name of Prem Shankar Aggarwal. Defendant No.2 also obtained plaintiff's signature on a blank non-judicial stamp paper of Rs.50 and blank plain papers. The ostensible reasons for getting these documents signed were that defendant No. 2 had agreed to help defendant No.1 purchase some petrol pump also. For the purpose of getting the petrol pump allotted, defendant No. 2 also took four passport size photographs of defendant No.1, her husband, children and photocopies of the election identity cards. Defendant No.2 also took the defendant No.1's husband and defendant No.1 to around in the neighbourhood for purchase of land for the petrol pump. Some negotiations were held but nothing was finalised.

The blank judicial stamp paper and other papers were misused to create a power of attorney. Based on this attorney defendant No.2 is said to have executed a sale deed in favour of the plaintiff dated 05.03.2001. The above narration of facts tallies with the narration of facts in the chargesheet. The sale deed dated 5.3.2001 in favour of the plaintiff is signed by defendant No.2 as attorney of defendant No.1. The GPA dated 28.8.2000 is in favour of defendant No.2.

8. In my opinion, prima facie there is enough evidence on record to show that the sale deed executed by defendant No.2 in favour of the plaintiff is not bona fide. The fraudulent acts of defendant No.2 in connivance with the plaintiff prima facie in my opinion make out a clear case that the ex parte injunction granted to the plaintiff should no longer continue. There is no prima facie case in favour of the plaintiff.

9. In this context reference may be had to the judgment of the Supreme Court in the case of Bhaurao Dagdu Paralkar vs. State of Maharashtra and Ors., AIR 2005 SC 3330: MANU/SC/0495/2005 relevant portion of which reads as follows:-

"10 ......

"Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he

knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. (See Ram Chandra Singh v. Savitri Devi and Ors. MANU/SC/0802/2003: (2003)8SCC319."

10. In my opinion, there is also no equity in favour of the plaintiff. Accordingly, the plaintiff would not be entitled to interim protection of this Court. I vacate the interim order dated 13.4.2012. Both the applications stand disposed of.

CS(OS) 821/2012

List on 24.8.2015 for framing of issues.

JAYANT NATH, J.

APRIL 23, 2015 n