Delhi High Court
Sunil Jain vs Zamiruddin on 18 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Ex. S. A. No.5/2015
% 18th May, 2017
SUNIL JAIN ..... Appellant
Through: Mr. G.P. Thareja, Advocate
with Mr. Usman Khan,
Advocate.
versus
ZAMIRUDDIN ..... Respondent
Through: Mr. Sanjeev Soni, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Execution Second Appeal is filed by the
appellant/objector/Sh. Sunil Jain against the impugned judgment dated
28.9.2015 of the first appellate court. The first appellate court allowed
the appeal filed by the respondent/decree holder/Zamiruddin and set
aside the judgment of the executing court dated 13.3.2015 whereby the
executing court had allowed the objections filed by the present objector
and thereby refused to grant execution of the decree for possession
dated 28.9.2004 passed in favour of the respondent/decree holder.
2. Before turning to the facts of the present case I would like
to note that the first appellate court has indeed given a very elaborate,
exhaustive and thorough judgment dated 28.9.2015. The issues at hand
have been discussed in a threadbare manner. Even this Court could
possibly can do no better and therefore this Court would at the relevant
places simply reproduce the relevant portions of the impugned
judgment dated 28.9.2015 as regards the issues decided for the purpose
of dismissing this execution second appeal.
3. The property in question is property bearing no.C-5/210,
Yamuna Vihar, Delhi. Admittedly the respondent/decree holder is the
allottee of this property from the Delhi Development Authority (DDA)
inasmuch as DDA had executed a perpetual lease deed in favour of the
respondent/decree holder. One Shanu Mohd. had claimed to be a tenant
in possession of the suit property and who filed a suit for injunction
against the respondent/decree holder whereby Shanu Mohd. claimed
rights of a tenant in the suit property. In this suit filed by Shanu Mohd.
the respondent/decree holder filed a counter-claim. It is this counter-
claim which was decreed by the first appellate court and which
judgment and decree is the subject matter of the present execution
proceedings. The civil court in which Shanu Mohd. filed a suit
claiming rights as a tenant, and in which counter-claim was filed by the
respondent herein, both the suit and counter-claim were dismissed by
the first/trial court. Respondent/decree holder/Zamiruddin appealed
against the judgment of the trial court and this appeal being RCA
No.51/2002 was allowed by the first appellate court of Ms. Anju Bajaj
Chandna, Addl. Senior Civil Judge in terms of the judgment dated
28.9.2004. As a result of the judgment dated 28.9.2004, a decree for
possession stood passed in favour of the respondent/decree holder and
against the judgment debtor/Shanu Mohd. The formal decree in RCA
No.51/2002 was drawn on 23.3.2006 after the requisite court fee was
paid by the respondent/decree holder, and which court fee was required
to be paid in terms of the judgment of the first appellate court because
the entitlement of possession as per the decree was to arise on payment
of 50% of the court fee on the market value of the property in question.
4. When the respondent/decree holder filed execution
proceedings to execute the subject judgment and decree dated
28.9.2004 passed by the first appellate court, firstly one Sh. Margoob
Ahmed filed the objections on 10.11.2006 claiming himself to be
owner of the suit property. Sh. Margoob Ahmed claimed ownership on
the ground that the respondent/decree holder had sold the suit property
to one Sh. Hakikat Ali on 9.12.2003 and Sh. Hakikat Ali had sold the
suit property to Sh. Margoob Ahmed on 2.12.2005. Sh. Margoob
Ahmed claimed that he got the suit property converted into a freehold
property from the DDA and a conveyance deed was executed in his
name on 4.7.2006. Accordingly, it was prayed that the execution
proceedings be dismissed.
5. In these objections filed by Sh. Margoob Ahmed issues
were framed by the trial court vide order dated 12.10.2009 and after
evidence was led by both the parties, objections were ultimately
dismissed by the executing court by its order dated 19.2.2010, the
objections of Sh. Margoob Ahmed being dismissed in default. Fresh
warrants of possession were therefore issued in favour of the
respondent/decree holder.
6. At this stage the present appellant/Sh. Sunil Jain filed his
objections on 13.8.2010 to the execution of the decree that the
appellant had purchased the suit property from Sh. Margoob Ahmed on
12.1.2007 through a registered sale deed and since the appellant was a
bonafide purchaser, hence, he could not be dispossessed. It is these
objections which were allowed by the trial court, and against which the
impugned judgment has been passed by the first appellate court setting
aside the judgment of the trial court consequently dismissing the
objections filed by the present appellant/Sh. Sunil Jain, which are in
issue in this second appeal.
7. To complete the narration of facts, it is required to be
stated that Sh. Margoob Ahmed had filed a suit for permanent and
mandatory injunction against the respondent/decree holder in the civil
court and which suit was dismissed in default and even the restoration
application stood dismissed in default. Sh. Margoob Ahmed did not
stop there and he yet filed one more suit on 27.10.2006 against the
respondent/decree holder impleading DDA as an additional party but
which was with the same basic facts and also by concealing the factum
of dismissal in default of the earlier suit as also dismissal of the
restoration application. The fresh suit (second suit) of Sh. Margoob
Ahmed was dismissed by the civil judge on 20.3.2008 with costs and
appeal of Sh. Margoob Ahmed being RCA No.8/2009 was also
dismissed by the first appellate court of the concerned ADJ on
21.12.2009. As already stated above, the appellant/Sh. Sunil Jain had
filed the objections on 13.8.2010 i.e after dismissal of the appeal filed
by Sh. Margoob Ahmed on 21.12.2009. Earlier the present appellant
had filed a civil suit against Sh. Margoob Ahmed in this Court seeking
declaration that he is the bonafide purchaser of the suit property. In
this suit filed against Sh. Margoob Ahmed the respondent/decree
holder was intentionally not made a party. When the present decree
holder moved an application under Order I Rule 10 CPC in this suit
filed by the appellant/Sh. Sunil Jain, the suit was withdrawn by the
appellant from this Court with liberty to file a suit against Sh. Margoob
Ahmed, Sh. Shanu Mohd. as also the present respondent/decree holder.
8. The following issues were framed by the executing court
in the objections filed by the appellant:-
"1. Whether the purported GPA, Agreement to Sell, Receipt
of consideration amounting to Rs.1,10,000/-, Will, Affidavit all
dated 9-12-2003 allegedly executed by DH in favour of Sh.
Hakikat Ali s/o Shokat Ali are forged and fabricated? OPDH
2) Whether the DH has not delivered the actual physical
possession of the suit property on 9-12-2003 to Sh. Hakikat Ali
s/o Sh. Shokat Ali as he himself was not in physical possession?
OPDH
3) Whether the present objections are liable to be dismissed in
view of the doctrine of lis-pendence as provided under section 52
of Transfer of Property Act? OPDH
4) Whether the objector Sh. Sunil Jain is the owner of the suit
property? OP objector
5) Relief."
9. There were three main issues as regards the validity of the
objections and conversely of the entitlement of the respondent/decree
holder to get possession under the judgment and decree dated
28.9.2004. The first issue was that whether the respondent/decree
holder did or did not execute the documentation dated 9.12.2003 in
favour of Sh. Hakikat Ali because the respondent/decree holder
categorically denied that he ever executed any such documents or ever
transferred title in the suit property to Sh. Hakikat Ali. The second
issue was that whether Sh. Hakikat Ali was ever at all in possession of
the suit property so that he could have transferred the same to Sh.
Margoob Ahmed in terms of documents by which Sh. Margoob Ahmed
purchased the property from Sh. Hakikat Ali and from which Sh.
Margoo Ahmed the appellant/Sh.Sunil Jain purchased the suit
property, inasmuch as, it was the judgment debtor/Shanu Mohd. and
not Sh. Hakikat Ali who was in possession of the suit property when
the alleged documentation was executed by the respondent/decree
holder in favour of Sh. Hakikat Ali on 9.12.2003. It be noted that
various litigations were pending on 9.12.2003 between the
respondent/decree holder and the judgment debtor/Shanu Mohd. The
third issue is that whether Sh. Margoob Ahmed or Sh. Sunil Jain can be
said to have received a valid title to the suit property under the
documentation executed in their favour because the documentation was
executed in favour of Sh. Hakikat Ali when the counter-claim/subject
litigation was pending against the judgment debtor/Shanu Mohd. who
was in possession of the suit property and thus such documentation is
hit by the doctrine of lis pendens contained in the Section 52 of the
Transfer of Property Act, 1882.
10. As already stated above in the second para of this
judgment that since the first appellate court in the impugned judgment
has done a very thorough job of discussing the issues and therefore I
had observed that I would reproduce the paras of the judgment of the
first appellate court, I accordingly propose to do this at this stage. The
first issue is whether there took place any genuine sale transaction
between the respondent/decree holder and Sh. Hakikat Ali on
9.12.2003 (Issue no.1). This issue has been dealt with and decided in
favour of the respondent/decree holder by the impugned judgment of
the first appellate court as under:-
" This fact is not in dispute that original allottee of the suit property was DH
as per lease deed executed in his favour by the DDA. Respondent relied
upon the sale documents Ex. OW1/10 to 14 i.e. GPA, Agreement to Sell,
Will and Receipt dated 9-12-2003 to show that title and possession of the
suit property itself was transferred by DH to Sh. Hakikat Ali. The
Agreement to Sell was initially undervalued and deficient stamp duty was
paid on it but this deficiency was removed on 28-11-2005 by Sh. Hakikat
Ali just before the sale of the suit property to Sh. Margoob Ahmed. DH has
described these documents as forged and fabricated.
The above documents in favour of Sh. Hakikat Ali as relied upon by the
respondent are not proved as per law because the said Sh. Hakikat Ali has
not been examined by the respondent despite mentioning his name in his list
of witnesses. Respondent in his list of witnesses mentioned the name of five
private witnesses including Sh. Hakikat Ali and Sh. Margoob Ahmed
besides witnesses of the sale documents but none of them was called in the
witness box and withheld from the court for the reasons best known to him.
The argument advanced on behalf of respondent now that sufficient
opportunities were not given by the ld. Executing Court to complete the
evidence and his evidence was closed abruptly despite objections cannot be
accepted because respondent had not challenged that order in higher court
ever. Due to non examination of material witness Sh. Hakikat Ali and
attesting witnesses of the documents in his favour by the respondent,
adverse inference has to be drawn against him because it is not the case of
the respondent that this witness was not available or could not come to the
court. Even Notary Public who attested these documents Ex. OW1/10 to 14
is examined. The sale documents in favour of Sh. Hakikat Ali allegedly
executed by DH were also unregistered documents. These alleged
documents in favour of Sh. Hakikat Ali were not executed in presence of the
respondent, so he could not prove it and exhibit it. Even no expert witness is
examined by the respondent to establish that signatures on these documents
are of DH. Supreme Court in Rosammal vs. Joosa Mairyan Fernandez
2000 VI AD (SC) 569 held that where document is unregistered and its
execution is disputed, then atleast one of its attesting witnesses is required to
be examined to prove it. Accordingly, it is held that the same is not proved
as per law and thus it cannot be looked into even if respondent has put
exhibit mark on the same.
The attestation of GPA and other documents in favour of Sh. Hakikat Ali
done by Notary Public are also not proper and defective because no entry
number of register of such notary is mentioned anywhere. There is no
endorsement of the Notary Public on these documents who had identified
DH before him. How, Notary Public satisfied himself that person appearing
before him is the DH and none other is not reflected from any of his
statement made while attesting the same. Hence, the attestation done by the
Notary Public on the GPA and other documents Ex. OW1/10 to 14 is liable
to be discarded due to violation of the notary rules.
In the said GPA Ex. OW1/10, DH allegedly has described himself as
„Owner General Attorney" which fact is incorrect because he was only the
allottee of the DDA property at that time. DH has also described himself in
possession of the suit property which fact is also incorrect because he was
not there actually as held below while dealing with issue no. 2. Thus, the
above details allegedly given by the DH in the GPA is wrong and these facts
create doubt about the genuineness and correctness of the said document.
Further Agreement to Sell Ex. OW1/11 dated 9-12-2003 allegedly executed
by DH in favour of Sh. Hakikat Ali is unregistered document. This was
required to be compulsorily registered as per provisions of Section 17 (1A)
of Registration Act at that time so due to its non registration, it cannot be
read in evidence. In this regard, reliance can be placed upon the decision of
Delhi High Court in case Arun Kumar Tandon vs. Akash Telecom Pvt. Ltd.
CM (M) no. 1371/2008 decided on 2-3-2010.
As per judgment of Supreme Court in Suraj Lamp & Industries Pvt. Ltd.
vs. State of Haryana (2012) I SCC 656 the transfer of title and ownership
through GPA, Agreement to Sell etc. is not permissible and only those GPA
etc. have been exempted executed prior to the date of judgment which were
genuinely executed. Here in this matter, the alleged first sale transaction in
favour of Sh. Hakikat Ali itself is found not genuine and accordingly he
could not have got any right or title of the suit property. Accordingly, he
could not transfer any title better then himself to his successors.
All the above mentioned facts leads to the conclusion that there was no
genuine transaction between DH and Sh. Hakikat Ali on 9-12-2003 as
alleged by respondent and no title or ownership of the suit property passed
from DH to said Sh. Hakikat Ali on the basis of documents Ex. OW1/10 to
14. The findings given by ld. Executing Court in this regard is not correct
and is liable to be set aside." (underlining added)
11.(i) A reading of the aforesaid paras of the first appellate court
showed that the documentation executed in favour of Sh. Hakikat Ali
dated 9.12.2003 was proved by the appellant/Sh. Sunil Jain as
Ex.OW1/10 to Ex.OW1/14. This documentation was held by the court
below to be illegal and had no effect for various reasons.
(ii) The first reason is that the documents dated 9.12.2003 including
therein the agreement to sell were for seeking rights on the basis of the
doctrine of part performance contained in Section 53A of the Transfer
of Property Act. By Act 48 of 2001 the provision of Section 53A of
the Transfer of Property Act was amended w.e.f 24.9.2001, and also by
introduction of Article 23A in the Stamp Act, 1899 as applicable to
Delhi, and as a result of which amendment no agreement to sell in the
nature of part performance could give valid rights unless the agreement
to sell was duly stamped and registered. Admittedly, the agreement to
sell was not registered. Therefore the appellant cannot seek validity of
the documents dated 9.12.2003 allegedly executed by the
respondent/decree holder in favour of Sh. Hakikat Ali.
(iii) Another reason for the documents not being valid and as held by
the first appellate court is that the documents are not proved to have
been duly executed inasmuch as neither Sh. Hakikat Ali was examined
and nor the attesting witnesses to the documents dated 9.12.2003 were
examined. Obviously the appellant could not have proved due
execution of the documents dated 9.12.2003 as those documents were
not executed in his presence.
(iv) Also the documents being notarized, the notary public could
have been summoned to show the factum with respect to due
notarization at a particular serial number of the register of notary but
this was also not proved inasmuch as there was no entry of the number
of the register of the notary mentioned anywhere in the documentation
Ex.OW1/10 to Ex.OW1/14.
(v) The next reason given by the first appellate court is that
signatures of Sh. Hakikat Ali could have been proved if an expert
witness was examined to show that the signatures on the documents are
of Sh. Hakikat Ali, but no expert was examined.
12. In my opinion, the aforesaid reasoning of the first
appellate court is faultless and I completely agree with the same that
documentation dated 9.12.2003 allegedly executed by the
respondent/decree holder in favour of Sh. Hakikat Ali are not valid
documents. It may also be noted that counsel for the respondent/decree
holder states that the original perpetual subject lease executed by the
DDA in favour of the respondent/decree holder is still with the
respondent/decree holder and which has not only been brought to this
Court today but also was shown to the first appellate court and that in
case the respondent/decree holder had transferred title to Sh. Hakikat
Ali then this original perpetual lease deed would have been given to
Sh. Hakikat Ali because if title is transferred then the original title
documents are handed over to the transferee. I may note that the case
of the appellant was that original perpetual lease deed executed by the
DDA in favour of the respondent/decree holder was with him but no
such original lease deed was filed, and surely the same could not have
been filed because the original of this lease deed has always been and
continues to be with the respondent/decree holder as stated above.
13. To the above discussion I would like to add an additional
reason for holding as non-genuine the documents executed by the
respondent/decree holder in favor of Sh. Hakikat Ali and this
additional reason is that there is no consideration which is paid by Sh.
Hakikat Ali to the respondent/decree holder by cheque. Whenever a
document is forged/fabricated it is very easy to state therein that
payment of price is in cash. If payment was by cheque then its
encashment would have shown the transaction to be genuine but
admittedly there is no payment by a bank instrument made to the
respondent/decree holder and thus clearly the documentation said to be
executed by the respondent/decree holder in favor of Sh. Hakikat Ali
are forged and fabricated documents.
14. The next issue which arises was as regards whether the
documentation dated 9.12.2003 allegedly executed by Sh. Hakikat Ali
in favour of Sh. Margoob Ahmed could at all be valid because actually
on 9.12.2003 Sh. Hakikat Ali was not in a position to transfer the
possession of the suit property to Sh. Margoob Ahmed because on this
date it was the judgment debtor/Shanu Mohd. who was in possession
of the suit property. The first appellate court again in a very detailed
and exhaustive manner has dealt with this aspect and shown as to how
in different litigations, different FIRs, different documentations etc etc
the address of the suit property was of Shanu Mohd. and where Shanu
Mohd. was served with different processes issued by the different
courts as also such address of Shanu Mohd. existed in the public
record. The relevant portion of the judgment of the first appellate court
dealing with this aspect reads as under:-
"The documents Ex. OW1/10 to 14 allegedly executed by DH in favour of
Sh. Hakikat Ali on 9-12-2003 and relied upon by the respondent says that
possession of the suit property was handed over by the DH to Sh. Hakikat
Ali on the date of execution of these documents. However, the same could
not have been possible as on the said date, DH himself was not in actual
physical possession of the suit property. The following evidence on record
establishes the same;
(a) The judgment of court of Addl. Senior Civil Judge Ms. Anju Bajaj
Chandna in RCA no. 51/2002 dated 28-9-2004 which is Ex. DH- 1/1
clearly reveals that DH who was in possession of the suit property at one
time was dispossessed by the JD, that is why direction was given to the
JD to restore possession to the DH. Thus, it is established from the
judicial pronouncement that DH was not in possession of the suit
property even as on 28-9-2004. If the judgment dated 28-9-2004 is read
as a whole especially paragraphs no. 21 and 23, then it is clear that the
suit no. 244/2000 was filed by the JD himself. Thus the argument
advanced on behalf of respondent that the signatures of JD on the plaint
of the said suit and other documents are different and accordingly it
cannot be said that he had filed this suit has no merits. The record
indicates that infact JD was of the habit of signing in different manner at
different time.
(b) JD Sh. Shanu Mohd. and his wife Smt. Shalu Khan were the
injured/eyewitness of the case FIR no. 3/2001 under section 308/
324/452 IPC registered in PS Bhajanpura against the DH. They had
given their residential addresses of the suit property to the police as per
chargesheet Ex. DH-1/2. Even during trial of this case, both were served
through summons of the Sessions Court for date of 24- 1-2004 and
through bailable warrants for 18-3-2004 at the same address. They
appeared in the Sessions Court on 18-3-2004 as a witness and gave
statement on oath in which also gave their residential addresses as of
suit property. It also proves that JD was in the possession of the suit
property even in March, 2004.
(c) In respect of one money decree dated 13-2-2004 passed in suit no.
256/2003, an execution bearing no. 14/04 between DH and JD was
pending in the court. In that execution Ex. DH-1/3, warrants of
attachment of movable property of the JD were issued at the address of
the suit property. On 1-10-2004, a part payment of Rs. 8,000/- was made
to the DH on behalf of the JD and time was given to the parties for
compromise but it could not be materialized. The report of the bailiff on
warrants of attachment proves on record through statement of concerned
bailiff given in the concerned court on 23-9-2005 says that he had met
wife of the JD at the suit property address and even recorded her
statement which says that JD had gone out of station and she would
inform him about the warrants as and when comes. The concerned
Executing Court even issued warrants of arrest against the JD vide order
dated 23-9-2005 at the address of the suit property. These facts also
prove that JD was residing at the suit property address and DH was not
in possession of the same even in September, 2005.
(d) Ld. Addl. Senior Civil Judge Ms. Anju Bajaj Chandna passed judgment
in RCA no. 51/2004 on 28-9-2004 but decree could not be prepared as
the DH was required to pay some court fees. In the year 2006, DH
moved an application u/s 151 CPC for preparation of the decree as he
showed willingness to pay the requisite court fee. The court issued
notice of this application to the JD at the address of the suit property and
he was served because his counsel appeared in the court and filed
vakalatnama as per order sheet Ex. DH-1/4. There after no one appeared
for the JD, so the court framed formal decree on 23-3-2006. The fact of
service of notice of the application of the DH at the address of the suit
property upon JD also point out that he was occupying the same even in
the year 2006.
(e) It is also proved from the certificate issued by the ADM cum Election
Returning Officer dated 12-10-2006 Ex. DH-1/5 that name of JD was
still existing in the electoral roll of the area at the suit property address.
Respondent has not led any evidence to show that JD was living
somewhere else at that relevant time and the entry in this electoral roll is
not reliable. Accordingly, this fact also proves that JD was in possession
of the suit property and not the DH.
(f) Respondent himself gave a police complaint in police station on 19-8-
2010 in which he stated that JD Sh. Shanu Mohd. has left no concern
with the possession of the suit property with effect from 12- 1-2007 i.e.
the date of purchase of the property by him. It also leads to the
conclusion from the above admission of the respondent that 15 JD
remained in possession of the suit property atleast till 12-1- 2007.
(g) From two FIRs Ex. DH2/1 and 3 registered against JD and others in
police station Bhajanpura on 10-10-2002 and 31-8-2003 respectively
under section 448/380 IPC on the complaint of one Sh. Majid Ali Khan
advocate, it is also clear that JD had tried to dispossess the said advocate
from one room in his possession in the capacity of a tenant on the first
floor. Some Kalandras under section 107/151 Cr.P.C. are also proved on
record by the DH prior to the period of 2003 instituted against the JD.
Though those are not material one but these facts apparently brought on
record by the DH only to prove that JD was of the habit of encroaching
upon the properties of others and thus the directions given against him
to restore the possession of the DH vide RCA no. 51/2002 were genuine
and based upon sound grounds. Otherwise also, these two FIR shows
that Sh. Majid Ali Khan was only occupying one room in the suit
property and not the entire property. DH cannot be held liable for any
concealment of fact of tenancy of Sh. Majid Ali Khan by filing
execution against JD only as it is not proved on record that Sh. Majid
Ali Khan was also the tenant at the time when suit property was in
possession of the DH prior to year 2000.
All the above mentioned fact clearly establishes on record that DH was not
in possession of the suit property on 9-12-2003 when the alleged transaction
took place in favour of Sh. Hakikat Ali vide documents Ex. OW1/10 to 14
as stated by the respondent. The contents of the sale documents in favour of
Sh. Hakikat Ali that DH himself had handed over possession of the suit
property to him are totally false averment. DH could not do so when he
himself was not 16 in possession of the suit property. In such situation also,
when DH was not using the suit property and was not occupying the same,
there was no obligation upon him to pay the house tax or to pay any
electricity or water charges. Non lodging of any complaint by the DH
against MCD or DJB or Electricity Department for mutating property or
giving connections in the name of Sh. Margoob Ahmed is not sufficient to
reject the execution. The findings given by the ld. Executing court in this
regard are not correct and liable to be set aside accordingly."
(underlining added)
15. I am aware that reproducing of extensively the relevant
portions of the judgment of the first appellate court has made this
judgment prolix, however, in view of the thorough manner in which
the first appellate court has dealt with the issues, I have thought it fit
that instead of changing the language of the first appellate court into
my language and adopting such reasoning with my language, it would
be better if the entire relevant discussion on the relevant aspects of the
first appellate court are reproduced by this Court. I therefore adopt and
accept the complete reasoning given hereinabove of the first appellate
court whereby it has been held that the documentation dated 9.12.2003
is invalid and forged/fabricated for the reason that Sh. Margoob
Ahmed could never have been handed over possession of the suit
property on 9.12.2003 because Sh. Hakikat Ali himself was not in
possession so as to transfer the same to Sh. Margoob Ahmed.
16. So far as the aspect of entitlement of Sh. Hakikat Ali
and/or Sh. Margoob Ahmed and/or the appellant/Sh. Sunil Jain not
being entitled to receive valid rights because of the bar of Section 52 of
the Transfer of Property Act, in my opinion, findings in this regard of
the first appellate court are not correct because the applicability of
Section 52 of the Transfer of Property Act would only arise only if
transfer of property is by a defendant in a suit or by a person who
claims through defendant in the suit. The rights in the suit property are
claimed by the appellant/Sh. Sunil Jain through Sh. Margoob Ahmed
and Sh. Hakikat Ali i.e not through the judgment debtor/Shanu Mohd.
who was the defendant in the counter-claim which was decreed by the
impugned judgment dated 28.9.2004, and therefore, the
respondent/decree holder can take no benefit of Section 52 of Transfer
of Property Act. Nothing however turns on this aspect because it has
been held that the documentation by Sh. Hakikat Ali in favor of Sh.
Magroob Ahmed are forged and fabricated.
17. I may note that it is a fact found on record that when DDA
transferred the suit property in the name of Sh. Margoob Ahmed by
executing a conveyance deed, the said conveyance deed was executed
without any notice to the respondent/decree holder, and therefore such
documentation executed in favour of Sh. Margoob Ahmed by DDA are
void documents for all intents and purposes, and therefore neither Sh.
Margoob Ahmed nor the present appellant can derive any title from
void documentation. Once the documentation in favour of Sh. Hakikat
Ali allegedly executed by the respondent/decree holder are forged and
fabricated documents then on the basis of such forged and fabricated
documents there could not have been transfer of the suit property by
DDA, much less ex-parte, in favour of Sh. Margoob Ahmed. I
therefore hold that any documentation including a conveyance deed
executed by the DDA in favour of Sh. Margoob Ahmed or the present
appellant are illegal and void ab initio for all intents and purposes.
18. The present case may appear to bring a harsh result
against the appellant, but the fact of the matter is that the appellant has
been completely duped by Sh. Margoob Ahmed and Sh. Hakikat Ali
and hence the remedy of the appellant is really against Sh. Margoob
Ahmed and Sh. Hakikat Ali who have defrauded him and not against
the respondent/decree holder. There cannot be misplaced sympathy in
favour of the appellant because the appellant seems to have paid
consideration to Sh. Margoob Ahmed and hence effectively to Sh.
Hakikat Ali, because, this Court cannot extinguish vital ownership
rights of the respondent/decree holder in the suit property simply
because the appellant has been defrauded by Sh. Magroob Ahmed and
Sh. Hakikat Ali. If the objections filed by the appellant would be
allowed, then, the respondent/decree holder for no fault of his would be
deprived of ownership rights of the suit property because of a fraud
being perpetuated upon him by Sh. Hakikat Ali and Sh. Margoob
Ahmed.
19.(i) Learned counsel for the appellant very vehemently argued
that the judgment and decree passed by the first appellate court on
28.9.2004 decreeing the counter-claim of the respondent/decree holder
against Shanu Mohd. is void as a decree for possession under Section 6
of the Specific Relief Act, 1963 because the first appellate court had no
power to pass a decree inasmuch as if a suit is filed under Section 6 of
the Specific Relief Act no appeal lies against such a decree in such a
suit and that the first appellate court when it passed the subject
judgment and decree dated 28.9.2004 did so in exercise of powers
under Section 6 of the Specific Relief Act.
(ii) In my opinion this argument urged on behalf of the appellant is
misconceived inasmuch as mere using of a wrong provision of law to
decree the suit would not mean that decree passed would be by a court
lacking inherent jurisdiction. The suit for possession was decreed by
the first appellate court vide its judgment dated 28.9.2004 on the basis
of ownership of the respondent/decree holder of the suit property. I
may note that there is a misconception that a suit for possession merely
because it is titled as a suit under Section 6 of the Specific Relief Act
really becomes one under Section 6 of the Specific Relief Act
inasmuch as in a suit under Section 6 of the Specific Relief Act, the
plaintiff does not have to prove title and the proceedings are summary
in nature whereas in the present case the counter-claim for possession
was decreed not on account of prior possession of the
respondent/decree holder against Shanu Mohd. but on the ground of
the respondent/decree holder being owner of the suit property. The
law in this regard is well settled in view of the judgment of the
Supreme Court in the case of Nair Service Society Ltd.
Vs. Rev. Father K.C. Alexander and Others AIR 1968 SC 1165. In
this judgment the Supreme Court has held that a suit which is filed
under Section 6 of the Specific Relief Act actually can be treated as a
suit for possession on the basis of title once the suit is found to have
been filed beyond the period of six months of alleged dispossession
and only during which period a suit under Section 6 of the Specific
Relief Act could have been filed to reclaim possession. Therefore, I do
not find any inherent lack of jurisdiction of the first appellate court
when it decreed the counter-claim by the judgment dated 28.9.2004. In
any case the appellant not only has no locus standi to question the
judgment and decree of the first appellate court dated 28.9.2004, the
objection raised is not an objection as to inherent lack of jurisdiction of
the Additional Senior Judge who decreed the counter-claim by the
judgment dated 28.9.2004. This argument of the appellant is therefore
rejected.
20.(i) I would also like to note that the appellant finally argued
as regards the invalidity of the judgment and decree dated 28.9.2004 on
the ground that the suit which was filed for mandatory injunction was
not filed by real Shanu Mohd., and in which counter-claim was filed by
the respondent/decree holder, and therefore the counter-claim which
has been decreed against Shanu Mohd. is without jurisdiction.
(ii) Once again this objection does not go to the lack of jurisdiction
of the court which passed the judgment and decree dated 28.9.2004.
Also and in any case the argument of the appellant is with respect to
the suit filed by Shanu Mohd. whereas the issue decided by the court
below as also being decided by this Court is with respect to the
decreeing of the counter-claim filed by the respondent/decree holder
against Shanu Mohd., and in these proceedings there is no dispute as to
the identity of Shanu Mohd. and that it was Shanu Mohd. who was
sued as a defendant in the counter-claim and against whom possession
was decreed in terms of the judgment and decree of the first appellate
court dated 28.9.2004. This argument of the appellant is also therefore
rejected.
21. In view of the above, there is no merit in this appeal, and
the same is therefore dismissed, leaving the parties to bear their own
costs.
MAY 18, 2017 VALMIKI J. MEHTA, J
Ne
