Delhi High Court

Omwati vs Ashok Kumar Arora & Ors on 29 October, 2015

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 29th October, 2015

+                              RFA 247/2005
       OMWATI                                                ..... Appellant
                         Through:      Mr. Sarthak Guru, Mr. N. Raja Singh,
                                       Advs.

                                Versus

    ASHOK KUMAR ARORA & ORS.                ..... Respondents

Through: Mr. Mukesh Kumar, Adv.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This first appeal under Section 96 of the Code of Civil Procedure

(CPC) impugns the judgment and decree dated 5th March, 2005 of the Court

of Mr. D.S. Bawa, Additional District Judge (ADJ), Delhi in Suit

No.736/01/99 instituted on 5th March, 1991 by the respondent No.1 /

plaintiff Mr. Ashok Kumar Arora for specific performance of an agreement

to sell dated 16th August, 1997 of immovable property against the

respondents No. 2 & 3 Mr. Mukesh Kumar and Mr. Vinod Kumar

(defendants no.1&2 in the Suit), by directing the respondent No. 1/ plaintiff

to pay the balance consideration within one month to the respondents No. 2

and 3 / defendants no.1 & 2 and by directing the respondents No. 2 and 3/

defendants no.1 & 2 to thereafter execute the sale deed in favour of the

respondent No. 1/ plaintiff. The appellant was defendant no.3 in the said

Suit.

2. Notice of the appeal was issued and vide ad-interim order dated 20th

April, 2005 the operation of the impugned judgment and decree was stayed.

The appeal, on 19th July, 2006 was admitted for hearing and the earlier ad-

interim order made absolute subject to the condition that the appellant does

not alienate or transfer the property in question or otherwise encumber the

same. Vide subsequent order dated 7th May, 2007 the said condition earlier

imposed only on the appellant was extended to the respondent No. 2 and 3/

defendants also. The appeal, on 3rd September, 2014 was dismissed in

default but on application of the appellant was on 23 rd April, 2015 restored

to its original position and posted for hearing on 12th August, 2015. On 12th

August, 2015 the matter was adjourned to today. The counsel for the

appellant has completed his arguments.

3. Mr. Mukesh Kumar, Advocate who has been present since the

beginning of the hearing, after the counsel for the appellant has completed

his arguments states that Mr. A.K. Gupta, Advocate is the main counsel for

the respondent No. 1/ plaintiff and is out of station and seeks adjournment.

Once this appeal, which is 10 years old, has been posted for hearing today,

the same cannot be adjourned on such frivolous grounds. Moreover, if a

request for adjournment was to be made, it ought to have been made before

the commencement of hearing. Accordingly, I proceed to adjudicate the

appeal after perusing the trial court record.

4. The respondent No. 1 plaintiff instituted the suit from which this

appeal arises pleading:

(i) that the respondents No. 2 and 3/ defendants no.1 & 2 had

entered into an Agreement to Sell (bayana agreement) with the

respondent No. 1/ plaintiff and thereby agreed to sell their property

bearing No. H-49, Aruna Nagar, Majnu Ka Tila, Delhi - 110 054

measuring 20 sq. yards to the respondent No. 1/ plaintiff for a total

consideration of Rs. 4,00,000/- and against which had received Rs.

50,000/- at the time of signing the balance receipt;

(ii) that the respondent No. 1/ plaintiff at the time of entering into

the aforesaid agreement was already in occupation of one shop in the

said property at a monthly rent of Rs. 500/- under the appellant /

defendant No. 3;

(iii) that the appellant / defendant No. 3 is the widow of Sh. Suresh

Kumar, brother of respondents No. 2 and 3 / defendants no.1 & 2 and

the respondents No. 2 and 3 / defendants no.1 & 2 had informed the

respondent No. 1/ plaintiff that after the death of their father Sh. Gopi

Ram the said property was distributed amongst all the three sons in

equal shares;

(iv) that however later on the respondent No. 1/ plaintiff came to

know that all the legal heirs of Sh. Gopi Ram are the owners of the

suit property and the appellant / defendant No. 3 is also the legal heir

of Sh. Gopi Ram as her husband was the son of Sh. Gopi Ram;

(v) that the respondent No. 1 plaintiff learnt so when the appellant /

defendant no.3 filed a suit for permanent injunction against the

respondent No. 1/ plaintiff as well as the respondents No. 2 and 3;

(vi) that the respondent No. 1/ plaintiff approached "the defendants"

on 1st November, 1997 for executing the sale deed in terms of the

agreement to sell but the „defendants‟ had expressed their inability;

(vii) that when the repeated efforts of the respondent No. 1/ plaintiff

failed, the suit was being filed for specific performance of the

Agreement to Sell dated 16th August, 1997 and for possession of the

property aforesaid admeasuring 20 sq. yards and for restraining the

„defendants‟ from encumbering or parting with the possession of the

property.

5. The respondents No. 2 and 3/ defendants no.1 & 2 contested the suit

by filing a written statement, though admitting the Agreement to Sell but

controverting the readiness and willingness of the respondent No. 1/

plaintiff. Qua appellant / defendant No. 3 it was pleaded that the respondent

No. 1/ plaintiff since beginning knew that the appellant / defendant no.3 is

also a co-sharer in respect of the „shop‟ for which Agreement to Sell was

executed and the respondent No. 1/ plaintiff had stated that he would himself

settle the matter with the appellant / defendant no.3.

6. The appellant / defendant no.3 also contested the suit by filing a

written statement pleading that the property aforesaid belonged to her father-

in-law Sh. Gopi Ram and which had been distributed by Sh. Gopi Ram

amongst all the family members in equal share and in the said settlement two

shops and a small room forming part of the property were given to the

appellant / defendant no.3 and the appellant / defendant no.3 had let out the

two shops, with one of the shops being let out to the respondent No. 1/

plaintiff. It was yet further pleaded that the respondents No. 2 and 3/

defendants no.1 & 2 had without the consent of the appellant sold half of the

property and feeling threatened wherefrom the suit for permanent injunction

aforesaid had been filed by the appellant / defendant no.3. It was yet further

pleaded that since the appellant / defendant no.3 was a co-owner, the

respondents No. 2 and 3/ defendants no.1 & 2 had no right to agree to sell

the property to the respondent No. 1/ plaintiff.

7. The respondent No. 1/ plaintiff is found to have filed replications to

the written statements aforesaid and in which he denied that he knew from

the beginning that the appellant / defendant no.3 was also a co-sharer in the

property.

8. On enquiry, the counsel for the appellant informs that in the suit for

permanent injunction afore referred filed by the appellant / defendant no.3,

a settlement was arrived at between the appellant / defendant no.3 and the

respondents No. 2 & 3/ defendants no.1 & 2 and as per which settlement,

two shops and one room was recognized by the respondents No. 2 & 3/

defendants no.1 & 2 as being the share of the appellant / defendant no.3 in

the property. A copy of the said settlement deed has been proved on the Trial

Court Record as Ex.PW-1/4 and in terms of the said settlement deed the said

suit was disposed of on 8th March, 2009. A perusal of the order sheet of the

said date in that Suit shows that the respondent No. 1/ plaintiff was present

before the Court on that date.

9. Be that as it may, on the pleadings aforesaid of the parties, the

following issues were framed in the suit:

"1. Has the plaintiff failed to perform his part of the agreement within the stipulated time?

2. Has defendant No. 3 any right, title or interest in the suit property? If so to what effect?

3. Is the plaintiff entitled to the decree prayed for?

4. Relief."

10. Needless to state the Ld. Additional District Judge has decided all the

said issues in favour of the respondent No. 1/ plaintiff and hence decreed the

suit.

11. On enquiry it is informed that the respondents No. 2 & 3/ defendants

no.1 & 2 have not preferred any appeal against the impugned decree. The

appellant / defendant no.3 in this appeal is concerned with the findings of

Issue No. 2 supra only.

12. The learned ADJ has under Issue No. 2 held that the

appellant/defendant no.3 has no right, title or interest in the suit property for

the following reasons:

(i) that the onus to prove the said issue was on the

appellant/defendant no.3;

(ii) that though the appellant in her written statement had pleaded a

Will of her father-in-law Sh. Gopi Ram but had not proved the said

Will and had merely stated that the same was in possession of the

respondents No. 2 & 3/ defendants no.1 &2 ; that even if that be so,

the appellant/ defendant no.3 should have got the same produced from

the respondents No. 2 & 3/ defendants no.1 & 2;

(iii) that though the appellant / defendant no.3 in her pleadings had

stated that two shops and one room had fallen to her share but in her

cross-examination stated that there was no partition before the

settlement aforesaid arrived at in the suit for permanent injunction

filed by her;

(iv) that the settlement aforesaid was after the institution of the

present suit for specific performance and was to defeat the claim of

the respondent No. 1/ plaintiff for specific performance;

(v) that though the appellant/defendant no.3 claimed that the

respondents No. 2 & 3/ defendants no.1 & 2 sold half of the property

without her consent but had not taken any action in that regard;

(vi) that if the appellant/defendant no.3 had any share in the

property, she would have certainly agitated the same when half of the

property was sold by the respondents No. 2 & 3/ defendants no.1 & 2

without her consent;

(vii) that the stand of the appellant/defendant no.3 varied from, Sh.

Gopi Ram having left a Will to a settlement having been arrived at

between herself and the respondents No. 2 & 3/ defendants no.1 & 2;

(viii) that adverse inference had to be drawn against the

appellant/defendant no.3 for not producing the Will of Sh. Gopi Ram

which was pleaded to have been in existence;

(ix) that had the said Will been shown to the respondent No. 1/

plaintiff he would not have agreed to purchase the property from the

respondents No. 2 & 3/ defendants no.1 & 2 only;

(x) that it was not the case that the property was ancestral; that Sh.

Gopi Ram was free to do whatever he wanted to do and to Will the

same to whosoever he wanted.

13. The counsel for the appellant/defendant no.3 has drawn attention to

the cross-examination recorded on 9th April, 2003 of the respondent No. 1/

plaintiff and has argued therefrom that the title of the appellant/defendant

no.3 to the property stood admitted by the respondent No. 1/ plaintiff in the

said cross-examination.

14. It is deemed expedient to set out the said cross-examination in toto

here under:-

"I am tenant in the suit shop for the last 15-16 years. I had taken this shop on rent from Suresh Kumar husband of defendant No. 3. The property belongs to Gopi Chand, father of defendant No. 1 and 2 and father-in-law of defendant No. 3. Gopi Chand has denied and he had 5 or 6 children. But I am not sure. The property was having an area of 40 sq. yds. prior to the agreement. I did not know whether after the death of Gopi Chand all his children became owners of the property. But I knew that husband of defendant No. 3 was son of Gopi Chand. I knew that Om Wati became the owner of the property of the share of her husband Suresh Kumar. I had not made any agreement with Om wati for purchase of this property although this property was let to me by her husband. Fresh agreement of tenancy was made with Om Wati by me 2/3 years after the death of Suresh Kumar. The rent agreement with Omwati was made by me prior to the agreement for sale with defendant No. 1 and 2. I knew that Omwati was owner of the property when I made agreement with defendant No. 1 and 2 for the purchase of this property. This property was not partitioned to my knowledge. I came to know of the partition in the year 1999 in the case which was pending in the court of Sudesh Kumar, Civil Judge. I was also a party to it. I did not file any suit for injunction against the defendants.

In fact I did not file any suit. It is correct that I had filed a suit prior to the agreement for biana. It is correct that I have filed a suit even prior to the filing of the suit by Om Wati against me and defendant Nos. 1 and 2. It is correct that I have not filed on record any order or proceedings of the earlier suit filed by me on record. It is correct that half of the property by sold by defendant No. 1 and 2 even prior to my biana agreement. At the time of the agreement, defendant No. 1 and 2 had told me that they are the owner of the property by way of Will but later defendant Nos. 1

and 2 had backed out. I had told my counsel about the Will at the time of drafting of the plaint as stated by defendant No. 1 and 2. I have not seen the Will. I had signed the plaint after understating it. It is wrong to suggest that I am deposing falsely, in order to grab the property of defendant No. 3.

xxxx on behalf of defendant No. 1 and 2.

Nil (Opp. given).

RO & AC 9.4.03."

15. A bare perusal of the aforesaid cross-examination is enough to hold

that the finding and reasoning of the learned ADJ on Issue No.2 is erroneous.

The learned ADJ has not only not considered the cross-examination

aforesaid but has also not considered:

(a) that the respondent No. 1/ plaintiff in the plaint itself had

admitted to the appellant who was impleaded as defendant No. 3

having a share in the property; in fact the appellant/defendant no.3

though not a party to the agreement of which specific performance

was claimed was impleaded as a defendant to the suit for the said

reason only;

(b) that the respondent No. 1/ plaintiff in the replication to the

written statement of the respondents No. 2 and 3/ defendants no.1 & 2

had also only taken a stand that the respondents No. 2 and 3/

defendants no.1 & 2 had not disclosed to him the share of the

appellant/defendant no.3 in the property agreed to be sold to him at the

time of entering into the Agreement to Sell and the respondent No. 1/

plaintiff learnt of it subsequently;

(c) that once it was admitted position that Sh. Gopi Ram was the

original owner of the property and the appellant/defendant no.3 was a

heir of Sh. Gopi Ram, it was the duty of the respondent No. 1/ plaintiff

to prove that the respondents No. 2 and 3/ defendants no.1 & 2 alone

were entitled to agree to sell the property to the respondents No. 1/

plaintiff; the learned ADJ wrongly placed the onus on the

appellant/defendant no.3;

(d) that the fact that the appellant/defendant no.3 did not take any

action with respect to the sale by the respondents No. 2 and 3/

defendants no.1 & 2 of half of the property without her consent cannot

extinguish the title of the appellant/defendant no.3 to the property; it

cannot be forgotten that the appellant/defendant no.3 as a heir of Sh.

Gopi Ram had only 1/3rd share in the property and the fact that the

appellant/defendant no.3 chose not to object to sale of one half of the

property being of the share of respondents No. 2 and 3 / defendants

no.1&2 cannot be the basis for any inference of the

appellant/defendant no.3 not having a share in the property.

16. I have perused the trial court record and do not find any material

contrary to the logic/reasoning aforesaid.

17. Once it is held that the appellant/defendant no.3 also is the owner of

the property, for specific performance of an Agreement of Sale of which the

suit was filed, the appellant/defendant no.3 being admittedly not a party to

the agreement, the agreement would be incapable of enforcement against the

appellant/defendant no.3. The respondent No. 1/ plaintiff has not made out

any case for specific performance of the agreement against the share of the

respondents No. 2 and 3/ defendants only.

18. The only relief which can be granted to the respondent No. 1/ plaintiff

is to be of refund of the amount of Rs. 50,000/- admittedly received by the

respondents No.2 and 3 / defendants no.1 & 2 and together with interest