Jugal Kishore vs Roshan Lal And Anr.
2017 Latest Caselaw 2826 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         Ex.F.A. No.13/2017

%                                                     31st May, 2017
JUGAL KISHORE                                           ..... Appellant
                          Through:       Mr. Puneet Yadav, Advocate.
                          versus

ROSHAN LAL AND ANR.                                    ..... Respondents

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.20665/2017 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

Ex.F.A. No.13/2017 and C.M. No.20664/2017 (stay)

2. This Execution First Appeal has been filed by the

appellant/objector/Sh. Jugal Kishore impugning the judgment of the

executing court dated 10.3.2016 which has dismissed the objections

filed by the appellant/objector claiming ownership rights in the suit

property bearing no.1200, Gali Mata Wali, Najafgarh, New Delhi,

situated on a plot of 120 sq. yds. Execution petition is filed by the

respondent no.1/plaintiff/decree holder of the judgment and decree

dated 24.5.2007 of possession of the suit property passed against

respondent no.2/defendant/judgment debtor.

3. (i) The facts of the case are that the respondent no.1 herein/

Sh. Roshan Lal has filed against the respondent no.2/Smt. Surekha

Rani subject suit for possession and mesne profits with respect to the

suit premises. In the suit plaint, it was pleaded that the suit property

belonged to Sh. Mehnga Ram, father of the respondent no.1/plaintiff,

and Sh. Mehnga Ram had allowed his two brothers, namely Sh. Sohan

Lal and Sh. Mohan Lal to be in permissive user of the suit property.

The respondent no.2/defendant/judgment debtor/Smt. Surekha Rani is

the daughter-in-law of Sh. Sohan Lal. It was pleaded in the suit that

the family of Sh. Sohan Lal comprised of his son Sh. Hira Lal and

daughter-in-law Smt. Surekha Rani. Sh. Hira Lal died on 16.6.1998

and Smt. Surekha Rani shifted to Moga in Punjab after re-marriage on

18.3.2001. Sh. Sohan Lal, who was said to be in the permissive user of

the suit property died on 1.6.2002 and since then the suit property is

lying vacant. Since Sh. Sohan Lal and Smt. Surekha Rani falsely

claimed rights in the suit property, respondent no.1/plaintiff/Sh.

Roshan Lal had filed an earlier suit for injunction against Sh. Sohan

Lal and Smt. Surekha Rani on 19.4.2001 and which was decreed on

28.7.2005 in favour of the respondent no.1/Sh. Roshan Lal, the

plaintiff in that other injunction suit. As per the judgment dated

28.7.2005 passed in civil suit no.166/04/01, the defendants in that suit,

who were Sh. Sohan Lal and Smt. Surekha Rani were injuncted from

in any manner transferring the suit property.

(ii) The respondent no.1/plaintiff in the present suit terminated the

licence of Smt. Surekha Rani and filed the present suit for possession

and mesne profits.

(iii) Smt. Surekha Rani failed to appear in the suit. Respondent

no.1/plaintiff led ex-parte evidence and proved on record ownership of

the suit property of Sh. Mehnga Ram vide documents Ex.PW1/1 to

Ex.PW1/7. By the judgment dated 24.5.2007, and execution whereof

resulted in the objections filed by the present appellant/objector, the

suit of the respondent no.1/plaintiff was decreed for possession of the

suit property.

4. The case of the appellant/objector is that the respondent

no.2/Smt. Surekha Rani had been appointed as an attorney holder by

her father-in-law Sh. Sohan Lal. This power of attorney dated

28.10.2000 is a registered power of attorney. It is further pleaded by

the appellant/objector that Sh. Mehnga Ram gave up his rights in the

suit property in terms of the family settlement entered into between Sh.

Mehnga Ram and his two brothers namely Sh. Mohan Lal and Sh.

Sohan Lal. It was pleaded that hence as regards half of the property

admeasuring 120 sq. yds of Sh. Sohan Lal, Smt. Surekha Rani as

attorney of Sh. Sohan Lal sold rights in the same to one Sh. Bal Ram in

terms of the documentation dated 3.3.2001 and which included the

agreement to sell, power of attorney, receipt etc. The present

appellant/objector Sh. Jugal Kishore is said to have purchased the suit

property from Sh. Bal Ram in terms of a registered sale deed dated

17.1.2008. Accordingly, the appellant objected that he was the owner

of the suit property, and therefore, execution petition was liable to be

dismissed.

5. The executing court below has held that the

appellant/objector could not have a better title than the respondent

no.2/Smt. Surekha Rani. It was also held by the executing court below

that when the respondent no.2/Smt. Surekha Rani executed the

documents dated 3.3.2001 in favour of Sh. Bal Ram, at that time the

executant of the power of attorney Sh. Sohan Lal was alive and hence

the general power of attorney in favour of Smt. Surekha Rani will not

make Smt. Surekha Rani owner of the suit property for transferring

title to Sh. Bal Ram. The court below also notes that earlier suit

no.166/04/01 titled as Roshan Lal Vs. Smt. Surekha Rani & Anr. for

perpetual injunction was decreed against Smt. Surekha Rani and Sh.

Sohan Lal in terms of the judgment dated 28.7.2005. In the said suit

no.166/04/01 Smt. Surekha Rani as defendant no.1 has taken up a plea

that Sh. Sohan Lal had become the owner of the suit property on the

basis of the family settlement but this plea was not accepted. The court

below has also held and commented upon the non-existence of

documents Ex.AW1/8 to Ex.AW1/13 in favour of Sh. Bal Ram dated

3.3.2001, including because respondent no.2/defendant no.1/judgment

debtor in the earlier suit no.166/04/01 did not take up any stand that

she had already transferred the suit property to Sh. Bal Ram. In para

21 of the judgment the executing court below has clearly observed that

the documents Ex.AW1/8 to Ex.AW1/13 dated 3.3.2001 in fact should

be treated as non-existent documents. The court below also notes that

in the suit no.166/04/01 Sh. Sohan Lal as defendant no.2 had made a

statement in favour of the plaintiff/Sh. Roshan Lal admitting to the

claim of Sh. Roshan Lal that Sh. Sohan Lal had no right, title and

interest in the suit property and which has the effect that if Sh. Sohan

Lal had no right, title and interest then his daughter-in-law Smt.

Surekha Rani would not have any right/title, and consequently even

assuming that the documentation dated 3.3.2001 are existing

documents, yet such documents dated 3.3.2001 could not have given

any right to Sh. Bal Ram and hence the appellant/Sh. Jugal Kishore

could not have purchased the suit property from Sh. Bal Ram. The

court below has also relied upon Section 52 of the Transfer of Property

Act, 1882 that any property transferred during the pendency of the

legal proceedings would become invalid and that in the present case

the appellant/objector claimed rights in the suit property in terms of the

registered sale deed dated 17.1.2008 which has been executed after the

subject judgment and decree dated 28.7.2005 which was passed in

favour of the respondent no.1/plaintiff/decree holder. The court below

has also observed that the present appellant/objector is related to the

respondent no.2/Smt. Surekha Rani as it is the admitted position that

the respondent no.2/Smt. Surekha Rani after re-marriage is the

daughter-in-law of the sister of the appellant's mother.

6. In law by virtue of Section 11 CPC and the provision of

Order XXI Rule 96 to 103 CPC any person who claims any

independent title is not to be bound by a judgment in the suit. In the

present case judgment in the present suit has been passed on 24.5.2007

with respect to the suit for possession instituted on 30.11.2005 by the

respondent no.1/plaintiff against the respondent no.2/Smt. Surekha

Rani. The appellant/objector can claim to have better title only if he

has a valid independent title arising in terms of the documents executed

prior to filing of the suit on 30.11.2005, and also in fact a title arising

prior to the earlier suit filed on 19.4.2001 for injunction and which was

decreed vide judgment dated 28.7.2005.

7. No doubt the documentation executed by Smt. Surekha

Rani in favour of Sh. Bal Ram dated 3.3.2001 are those prior to filing

of the earlier suit on 19.4.2001 being suit no.166/04/01 titled as

Roshan Lal Vs. Smt. Surekha Rani & Anr. and decreed on 28.7.2005

as also prior to the filing of the present suit on 30.11.2005, however,

the appellant/objector can only claim a valid legal right if the

documentation dated 3.3.2001 in favour of Sh. Bal Ram by the

respondent no.2/Smt. Surekha Rani are valid and not fabricated

documents. Validity of the documents dated 3.3.2001 is to be judged

from two aspects. One aspect is as regards whether at all there existed

validly executed documents of 3.3.2001 i.e these documents were in

fact executed on 3.3.2001 and these documents dated 3.3.2001 are not

non-existent/fraudulent/forged documents. The second aspect is that

even assuming the documents dated 3.3.2001 did exist then even then

whether at all Sh. Sohan Lal or her daughter-in-law Smt. Surekha Rani

could have at all transferred the title in the suit property to Sh. Bal Ram

by the documentation dated 3.3.2001.

8. It is seen that the executing court below has rightly come

to a finding that documentation dated 3.3.2001 executed by the

respondent no.2/Smt. Surekha Rani in favour of Sh. Bal Ram are non-

existing documents i.e they are not valid documents but are fabricated

documents. This is because it is seen that the documentation dated

3.3.2001 although allegedly came into existence prior to the filing of

the earlier suit for injunction being suit no.166/04/01 instituted on

19.4.2001, yet the defendants in the said earlier suit namely Smt.

Surekha Rani and Sh. Sohan Lal, made no mention of existence of

these documents dated 3.3.2001 allegedly executed by the respondent

no.2/Smt. Surekha Rani as the attorney holder of Sh. Sohan Lal and in

favour of Sh. Bal Ram and thus the earlier suit was decreed only

against the respondent no.2/Smt. Surekha Rani and Sh. Sohan Lal in

terms of the judgment dated 28.7.2005 restraining them from in any

manner selling or transferring the suit property.

9. In my opinion the documents dated 3.3.2001 are clearly

fabricated and non-existing documents and created only to frustrate the

subject judgment and decree dated 24.5.2007 of which execution is

sought. The fact that documents dated 3.3.2001 are non-existent and

fabricated documents becomes clear from the following facts:-

(i) The consideration which is sought to be paid in terms of the

documents dated 3.3.2001 is said to be paid in cash. It is always easy

to manufacture documents of a back date by showing payment of

consideration in cash. Validity would have been given to the

documents dated 3.3.2001 if consideration was paid through a bank

instrument and admittedly neither whole nor part consideration of the

documentation dated 3.3.2001 is by means of a cheque or bank draft.

(ii) If way back in the year 2001 Sh. Bal Ram by virtue of

documents dated 3.3.2001 would have become owner of the suit

property then Sh. Bal Ram would have acted upon the ownership by

seeking mutation of the property in his name in the municipal record,

but Sh. Bal Ram who sold the suit property to the appellant/objector in

the year 2008, took no steps from the year 2001 to 2008 for getting the

suit property mutated in his name and nor were these documents dated

3.3.2001 ever declared before any public authority.

(iii) As rightly noted by the court below that if these documents

dated 3.3.2001 did in fact exist, then, there was no reason why in the

earlier suit for injunction being suit no.166/04/01 instituted in April,

2001 would the defendants in the said suit Smt. Surekha Rani and Sh.

Sohan Lal not mention at all existence of these documents dated

3.3.2001. Obviously, these documents have now been created for

frustrating the judgment and decree for possession passed in favour of

the respondent no.1/Sh. Roshan Lal and against the respondent no.2/

Smt. Surekha Rani.

10. In this earlier suit no. 166/04/01 it was decided that the

respondent no.2/Smt. Surekha Rani or Sh. Sohan Lal had no right, title

and interest in the suit property because it was Sh. Mehnga Ram who

was the owner of the suit property. In the earlier judgment dated

28.7.2005 in suit no.166/04/01 the court held that though Sh. Roshan

Lal failed to prove ownership of the suit property yet in that suit it was

admitted by the defendants Smt. Surekha Rani and Sh. Sohan Lal that

the suit property was purchased in the name of Sh. Mehnga Ram, and

that although the claim of the defendants in the said suit was that the

suit property was purchased out of the joint family funds but the onus

to prove that the property was joint family property was on Smt.

Surekha Rani and Sh. Sohan Lal in the earlier suit and which onus they

failed to discharge because no evidence to this effect was led on behalf

of Smt. Surekha Rani and Sh. Sohan Lal. Accordingly holding Sh.

Roshan Lal as owner of the suit property injunction was granted in his

favour in terms of the judgment dated 28.7.2005 in suit no. 166/04/01.

11. I may also note that in the present case it was for the

appellant/objector to show that the title to the suit property which was

purchased in the name of Sh. Mehnga Ram was given up to Sh. Sohan

Lal and Sh. Mohan Lal, but the appellant/objector who is claiming

through Smt. Surekha Rani and Sh. Sohan Lal, is estopped and barred

from doing so in view of the earlier judgment dated 28.7.2005 in suit

no.166/04/01 and in which suit the title of the suit property in favour of

Sh. Roshan Lal and against Smt. Surekha Rani and Sh. Sohan Lal

stood decided.

12. The conclusion thus is that either the documentation dated

3.3.2001 are forged and fabricated documents or that even if the

documents dated 3.3.2001 are not fabricated but since Sh. Sohan Lal

and Smt. Surekha Rani were not the owners of the suit property and

which property was in the ownership of Sh. Mehnga Ram as held in

the judgment in the suit no.166/04/01, hence the appellant/objector

could not have purchased rights in the suit property in terms of the sale

deed dated 17.1.2008 because of the maxim nemo dat quod non habet,

i.e no one can give what he has not got. Putting it in other words, if

Smt. Surekha Rani and Sh. Sohan Lal did not have any right, title and

interest in the suit property obviously then neither the first transferee

Sh. Bal Ram and the second transferee/appellant/Sh. Jugal Kishore

would have any right, title and interest in the suit property.

13. In view of the above, there is no merit in the appeal and

the same is therefore dismissed, leaving the parties to bear their own

costs.

MAY 31, 2017/ Ne                               VALMIKI J. MEHTA, J