Rajat Sud vs J P Sud & Ors
2019 Latest Caselaw 1784 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Judgment reserved on: February 20, 2019
                            Judgment delivered on: April 01, 2019

+     FAO(OS) 66/2018, CM No. 14761/2018
      RAJAT SUD                                   ..... Appellant
                      Through: Mr. Rajiv Tyagi, Adv. with
                                 Mr. Manish Dua, Mr. Rohit Gupta &
                                 Mr. Manish Kumar, Advs.

                         versus

      J P SUD & ORS                                     ..... Respondents
                         Through:     Mr. Sanjeev Sindhwani, Sr. Adv.
                                      with Mr. Gurinder Pal Singh &
                                      Mr. Sidharth Borah, Advs. for R-1 to
                                      R-3
                                      Mr. Arvind Kr. Gupta, Adv. with
                                      Mr. Anurag Tirthankar, Adv. for
                                      R-4

      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE V. KAMESWAR RAO
                            JUDGMENT

V. KAMESWAR RAO, J

1. The present appeal filed by the appellant against the order

dated February 01, 2018 passed by the learned Single Judge of

this Court striking off the proposed issue with regard to

appellant's share in the House No.D-8, Saket, New Delhi-110017

and resultantly dismissing the suit of the appellant, in respect to

the said property under Order XV of the Code of Civil Procedure,

1908.

2. The facts as noted from the appeal are that father of the

appellant, Sh. B.P. Sud had started a garments business under the

name of Shanker Enterprises. The respondent No.1 Sh. J.P Sud

was not a part of the business initially and was employed in a

private firm. The garment business started by Sh. B.P Sud under

the name and style of M/s. Shanker Enterprises, flourished and

Sh. Prem Chand Sud, grandfather of the appellant and Sh. D.C.

Sud, uncle of the appellant joined the business. However, during

1974-75, M/s. Shanker Enterprises got involved into serious

labour disputes and litigation. Consequently the Firm was closed

down. To retain the original clientele of M/s. Shankar Enterprise,

the respondent No.1 along with Mrs. Jaswanti Sud, grandmother

of the appellant, formed another firm under the name of M/s.

Hemstitch India. The entire business of Shanker Enterprises was

transferred to M/s. Hemstitch India. Sh. B.P. Sud consciously did

not join the new business as he was facing several labour cases.

In 1976, a partnership in the name of the grandmother of the

appellant and the respondent No.1 was constituted under the

name of Hemstitch India. In 1978 Mrs. Anila Sud, mother of the

appellant, joined M/s. Hemstitch India as a partner. By the

agreement to sell dated October 16, 1979 and out of the moneys

drawn from M/s. Hemstitch India, Mrs. Anila Sud, the original

plaintiff and the mother of the appellant, the respondent No.1 and

the respondent No.3 jointly purchased the House No.D-8, Saket,

New Delhi from Sh. Gur Prashad Khanna (Seller). The seller

nominated Sh. B.P. Sud, father of the appellant as his Attorney.

Later on, from the funds drawn from M/s. Hemstitch India, the

family residential house on Plot No.D-8, Saket New Delhi was

constructed. The grandmother of the appellant, respondent No.1

and the mother of the appellant reconstituted the partnership

under the name of Hemstitch India, in 1980.

3. It is stated that the parties have been living together at D-

8, Sakhet, New Delhi. They had a common kitchen until

difference cropped up in the year 2009. Several assets and

properties, which are the subject matter of the suit have been

acquired out of the moneys drawn from the joint and common

businesses. It is averred that the respondent No.1, through

mischievous designs, contrived manipulation and by practicing

deception, dishonestly got the conveyance deed dated January 14,

1994 of the House No.D-8, Saket New Delhi, executed in his

individual name from the DDA. Sh. B.P. Sud expired on

November 07, 2006. With effect from June, 2009, the respondent

No.1 along with his family started living separately in another

house at Sainik Farms. It is the case of the appellant that without

the knowledge and consent of the appellant's family, the

respondent No.1 started sending interested persons to visit the

house at D-8, Saket, New Delhi for buying or taking on rent even

while the appellant and his family members were living in that

house.

4. It is stated that it was sometime in 2009 that Mrs. Anila

Sud realized that the respondent No.1 was systematically keeping

her family out of the affairs of the Partnership Firm and had not

been rendering the true accounts of the business and the personal

assets and properties owned by and between the family members.

It is averred that the respondents pressurized the appellant and his

family members to vacate the house at D-8, Saket, New Delhi. It

is their case that the respondent No.1 had plans to sell the house

at D-8, Saket, New Delhi. On August 07, 2009, the appellant and

his mother, the Original Plaintiff, filed the C.S. (OS)

No.1507/2009 before this Court for suit for declaration,

permanent and mandatory injunction, and rendition of accounts

against the respondents along with an application for Ad-interim

ex-parte injunction in respect of the various properties including

the house No.D-8, Saket, New Delhi purchased in the joint names

of (i) Ms. Anila Sud (mother of appellant) (ii) Sh. J.P. Sud

(respondent No.1) and (iii) Ms. Prabha Sud (respondent No.3).

The Court had issued notice and directed the appellant and the

respondents to maintain status quo with regard to the suit

properties. By the judgment and decree dated October 05, 2012 a

preliminary decree in respect of the immovable properties owned

by the Firm M/s. Hemstitch India as also certain other properties

jointly owned by the parties herein was passed. The suit thus

became confined to the three properties i.e. D-8, Saket New

Delhi, agricultural land bearing Khasra No.644 min East North

Corner (1-12) 645 min West North Corner (1-4) situated at House

No.W-12B/5, Western Avenue, Old No. K-249, Sainik Farms,

Village Neb Sarai, Tehsil Mehrauli, New Delhi, and Shop No.5,

PVR Cinema Complex, Saket. On the application of the

appellant, the Court by the order dated November 01, 2012,

amended the preliminary decree dated October 05, 2012.

5. On November 17, 2015 after the completion of the

pleadings, the learned Single Judge framed the issues and posted

the suit for filing the list of witness and affidavits of evidence by

the appellant. It is the case of the appellant that when the suit

was listed on February 01, 2018, the learned Single Judge

observed that there was a conveyance deed in the name of the

respondent No.1 with respect to the house No.D-8, Saket, New

Delhi and therefore, the appellant could not claim a title to the

said house and dismissed the suit of the appellant with regard to

the rights of his family in the house No.D-8, Saket, New Delhi.

It is in this background that the present appeal has been filed.

6. Mr. Rajiv Tyagi, learned counsel appearing for the

appellant would challenge the order of the learned Single Judge

by stating that the suit qua house No.D-8 Saket, New Delhi could

not have been dismissed under Order XV CPC, as Rule 3 of

Order XV CPC postulates the consent of the parties for the

decision on the proposed issue without any evidence being led.

7. According to him, it is apparent from the fact that the

present appeal has been filed by the appellant that the appellant

had not agreed to the issue regarding his right in the subject

house property, being decided without evidence. According to

Mr. Rajiv Tyagi the issue regarding the appellant's right in the

aforesaid property being D-8, Saket, New Delhi had to be framed

under Order XIV Rule 1 CPC as the plaintiff had in the suit

asserted his right of a share in terms of agreement to sell dated

October 16, 1979 executed between Sh. G.P. Khanna as seller

and the respondent Nos.1and 3 and Late Mrs. Anila Sud (mother

of the appellant) as the joint purchasers. The respondent Nos.1 to

3 had denied the claim of the appellant and pleaded that there was

a registered conveyance deed dated January 14, 1994 in favour of

the respondent No.1, while the case of the appellant is that in a

properly conducted trial, the appellant would be able to show, on

the basis of evidence, that the purported conveyance deed dated

January 14, 1994 though registered, was a mere sham document,

and did not create any rights in favour of the respondent No.1 and

was therefore, of no legal effect and consequence.

8. According to him, it is the settled position of law, that

the registration of a document does not confer any more

legitimacy upon the document than what is contemplated in the

terms and contents of such registered document. The registration

of a document is mere proof of its execution. According to him,

the contents of the document can still be challenged and an issue

can be tried on the contents and character of the registered

document.

9. He submits that the stand of the respondent Nos.1 to 3 in

the written statement pleading the manner in which he had

purportedly acquired the complete and exclusive rights in the said

property has been specifically denied by the appellant.

Therefore, an issue under Order XIV Rule 1 of the CPC had to be

framed with regard to the assertion of right by the appellant and

its denial by the respondent No.1 and also respondent Nos.2 and

3. According to him, the conveyance deed even though

registered, the contents therein have to be read in juxtaposition

with the agreement to sell dated October 16, 1979 and the same

would also reveal grave inconsistency in the terms of the

purported conveyance deed.

10. In other words, the terms of proviso to Section 49 of the

Registration Act, 1908, the agreement to sell can be used to prove

or disprove the collateral transaction. Therefore, according to

him, the learned Single Judge could not have disbelieved the

legal existence and validity of the agreement to sell dated

October 16, 1979. In this regard, he would rely upon the

judgment of the Supreme Court in the case of S. Kaladevi v. R.

Somasundaram & Ors. AIR 2010 SC 1654. He submits that the

appellant and the respondents are in joint and equal possession of

the aforesaid house property in terms of the agreement to sell

dated October 16, 1979. The appellant and the respondent No.4

continue to reside in the residential house since their birth and

they have never given up the vacant physical possession of the

residential house to the respondent No.1 so as to put the

respondent No.1 in exclusive possession of the said house.

11. Thus the registered conveyance deed shall operate as an

agreement to sell. He would rely upon the judgment of the

Supreme Court in the case of Janak Dulari Devi v. Kapildeo Rai,

AIR 2011 SC 2521. He would also rely upon the judgment in the

case of Prem Singh v. Birbal, (2006) 5 SCC 353 to contend that

being in possession of the property, the appellant is within its

right to file a suit for declaration that the deed is not binding upon

him. Similarly, on same proposition, he would rely upon the

judgment in the case of Vishwanath Bapurao Sabale v.

Shalinibai Nagappa Sabale, (2009) 12 SCC 101. He also stated

that the seller under the agreement to sell dated October 16, 1979

had granted the power of attorney to Sh. B.P. Sud, the appellant's

father to execute the sale deed in favour of the three purchaser

co-owners under the said agreement to sell, namely, respondent

Nos.1 and 2 and the mother of the appellant. The said Power of

Attorney was specific with regard to the execution of the sale

deed in favour of the three co-owners. The respondent No.1 has

however, alleged that the registered conveyance deed was

allegedly executed by the said Attorney Sh. B.P. Sud in favour of

the respondent No.1 exclusively which power was never

conferred by Sh. G.P. Khanna, the seller / the grantor upon the

said Attorney.

12. Therefore, assuming without admitting that if Sh. B.P.

Sud had executed the conveyance deed in favour of the

respondent No.1 as alleged then, the alleged sale deed would be

void as Sh. B.P. Sud had no authority to execute the registered

conveyance deed in favour of the respondent No.1 exclusively or

he may have been under a mistake as to the character or contents

of the document. He also stated that in the purported conveyance

deed the respondent No.1 had paid an amount of Rs.1,45,200/- as

consideration for the execution of the said registered conveyance

deed. It is however, not stated therein as to whom the said

consideration has been paid, nor the manner in which the said

consideration has been paid and as to why it was paid, especially

when the three co-owners under the said agreement had already

acquired all the rights in the residential house property from its

original owner Sh. G.P. Khanna.

13. According to him, the learned Single Judge erred in law

in observing that the plaintiff should have amended his plaint

upon coming to know of the alleged registered conveyance deed.

It is submitted that no law, practice or procedure prescribes that

every time, a defendant raises a defence, the plaintiff must amend

his suit plaint in order to counter the case set up in defence. He

submits that the plaintiff may either meet the challenge in the

same suit or may file a separate suit if the law so prescribes. He

would rely upon the judgment of the Supreme Court in the case

of Suhrid Singh @ Sardool Singh v. Randhir Singh, AIR 2010

SC 2807, wherein it has been held that the plaintiff being the non

executants of the alleged registered conveyance deed can only

file the suit for declaration for the cancellation of the registered

conveyance deed.

14. It is his submission that the purported conveyance deed

being vitiated by fraud, manipulation and fabrication of

documents, misrepresentation, is the subject matter of the suit for

cancellation of the conveyance deed, pending in the Court of the

learned Additional District Judge, Saket Court, Saket, New Delhi.

He states that the case of the appellant in the present appeal

stands on the footing that the purported conveyance deed does

not confer any rights upon the respondent No.1 due to inherent

inconsistencies in the terms and bona fide character of the said

conveyance deed. According to him, it was therefore, incumbent

upon the learned Single Judge to decide if the appellant had any

share in the said house property in view of the conflicting

averments made by the parties, and if so, to what extent.

15. Mr. Rajiv Tyagi also contended that the learned Single

Judge, who placed great emphasis on the judgment of the

Supreme Court in Suraj Lamp & Industries v. State of Haryana

(2012) 1 SCC 656 had failed to notice that the Supreme Court has

not laid down any new law with regard to the effect of

registration of documents and the rights conferred thereby and the

position has always remained the same. He also submits that the

Supreme Court has clarified that its earlier judgment reported in

(2009) 7 SCC 363, lest it be misunderstood, would not affect

bona fide transactions and in any event, any transactions that had

taken place before the second judgment of Suraj Lamp &

Industries (supra). According to him, in the present case, the

agreement to sell had been executed on October 16, 1979 and

hence the rights created thereby are duly protected under the

Suraj Lamp & Industries case.

16. He further stated that even though the amendment under

Section 17 of the Indian Registration Act, 1908, by introduction

of sub-section (1A) on September 24, 2001, would not affect the

case in hand as the amendment is prospective in nature, whereas

the agreement to sell was executed on October 16, 1979. In other

words, the agreement to sell dated October 16, 1979, confers

complete legal rights upon the appellant and the respondent No.4

vis-à-vis the respondent Nos.1 to 3 with regard to their rights in

their residential house. Without prejudice to the aforesaid, he

also stated that the rights in immovable properties involve

complex questions of facts and law which should be decided at

trial and hence the necessity of framing a proper issue in respect

of the inter se rights of the parties in the residential house.

17. He also stated that a suit cannot be dismissed without a

trial and depending upon the purity of the pleadings, the Court is

duty-bound to frame an issue with regard to every point in

controversy between the parties. He would also rely upon the

following judgments in support of his contention:

(i) A. Shanmugam v. Ariya Kshatriay Rajakula Vamsathu

Madalaya Nandhavana Paripalanai Sangam, AIR 2012 SC 2010;

(ii) Makhan Lal Bangal v. Manas Bhunia & Others. AIR 2001 SC 490;

(iii) Pratima Sinha & Ors. v. Shashi Kumar Narain Sinha & Ors. (2004) 13 SCC 599;

(iv) Mayar (H.K.) Ltd. v. Owners & Parties Vessel M.V. Fortunue Express & Ors. AIR 2006 SC 1828;

(v) Alka Gupta v. Narender Kumar Gupta AIR 2011 SC 9;

(vi) Maria Margarida Sequeira Fernandes & Ors. Erasmo Jack De Sequeria (Dead) Through Lrs. (2012) 5 SCC 370;

(vii) Biswanath Agarwalla v. Sabitri Bera and Ors. (2009) 15 SCC 693;

(viii) Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar & Ors. (2018) 7 SCC 639;

(ix) S. Kaladevi v. V.R. Somasundram & Ors. AIR 2010 SC 1654;

(x) Maya Devi Lalta Prasad. AIR 2014 SC 1356;

(xi) Abhishek Sharma & Anr. v. Jyoti Makhija 254 (2018) DLT 730

(xii) Suraj Lam & Industries Pvt. Ltd. v. State of Haryaan 7 Anr. AIR 2012 SC 206.

18. Mr. Sanjeev Sindhwani, learned Senior Counsel

appearing for the respondent Nos.1 to 3 in his submission stated

that the appellant had filed the suit for partition and permanent

injunction, inter alia with respect to the said property i.e. D-8,

Saket, New Delhi. The original plaintiff i.e. the mother of the

appellant had predicated her rights in the said property on the

basis of an agreement to sell dated February 16, 1979. The suit

was filed on or around August 07, 2009. The respondent No.1 to

3 denied the claim of the of the original plaintiff in the written

statement by mentioning that there is a conveyance deed dated

January 14, 1994 executed by the Delhi Development Authority

in respect of the said property in favour of the defendant No.1. It

is further submitted that this conveyance deed was executed

through the original vendor / Lessor Sh. G.P. Khanna acting

through his attorney Sh. B.P. Sud i.e. the father of the appellant

herein. He states that Sh.B.P. Sud has also signed the

conveyance deed as the attorney of the lessor and that the

document also bears his photograph. According to Mr. Sanjeev

Sindhwani the appellant had filed a replication to the written

statement in February, 2010 wherein it was mentioned that the

plaintiff reserved its right to challenge the deed before the Court

of law.

19. According to him, implicit in the statement of the

appellant is his admission of necessity of challenging the said

deed by duly constituted proceedings. He states that the learned

Single Judge has rightly held that as the said registered

conveyance deed in favour of the respondent No.1 has not been

challenged and the challenge to the same is barred by time, the

suit in respect of the said property cannot be sustained and has

thus been dismissed. According to Mr. Sanjeev Sindhwani, it

was imperative for the appellant to have challenged the registered

conveyance deed in order to assert his right, if any, in the said

property and maintain his suit.

20. He stated that the conveyance deed in favour of the

respondent No.1 is a registered document and the fact of

registration, by itself, constitutes a notice to the world at large.

The suit for partition filed feigning ignorance of the same, is per

se not maintainable. The appellant, in the plaint, has

categorically mentioned that the respondent No.1 is claiming the

property to be his own but has conveniently side-stepped any

reference to the conveyance deed.

21. It was also submitted that the conveyance deed was

signed by none other than Sh. B.P Sud, the husband of the

original plaintiff / father of the appellant herein. It is a matter of

record that Sh. B.P. Sud did on November 07, 2006. Though, the

conveyance deed in favour of respondent No.1 was executed on

January 14, 1994, Sh. B.P Sud never challenged the same during

his lift time, i.e. for 12 long years. It is therefore inconceivable

that the plaintiff can be permitted to challenge the same on any

ground whatsoever.

22. He also stated that it is a matter of record that the said

conveyance deed was duly mentioned by the defendant in the

written statement dated October 05, 2009. At least from that

date, the plaintiff had knowledge of the same. However, no steps

had been taken to challenge the same and / or setting aside the

same either by amending the plaint or in any other manner. This

is despite the plaintiff claiming to have reserved his right in this

regard in the replication which was filed 8 years ago. The

conveyance deed and the rights of respondent No.1 mentioned

therein have thus remained unchallenged and rather accepted and

now incapable of being impugned. Thus no right can be claimed

by the plaintiff to sustain his suit for partition.

23. Mr. Sanjeev Sindhwani, in support of his submission that

a declaration / cancellation of a document has to be sought, relied

upon the following judgments:

(i) Razia Begum v. Delhi Development Authority 2015 (214) DLT 290 DB

(ii) Achyut Kumar Sharma v. JVG Finance LTD 2016 (232) DLT 3

(iii) Raj Kumari Garg v. S.M. Ezaz & Ors. 2012 (132) DRJ 108 (DB).

24. In other words, without seeking a declaration /

cancellation of the conveyance deed, which confers rights on the

respondent No.1, the plaintiff cannot be permitted to assert his

own right either for partition or otherwise as such a document is

held to be an insurmountable hurdle for assertion of a right by the

appellant.

25. Mr. Sanjeev Sindhwani has also stated that there is also

no allegation of fraud in the plaint, no such averment was sought

to be incorporated even by way of an amendment despite

categorical knowledge of the document at least since 2009. A

plea of fraud without necessary particulars is no pleadings in the

eyes of law and no claim can be sustained on the basis thereof. In

this regard, he relied upon two judgments:

(i) Vishnudeo Narain v. Seogeni Rai AIR 1951 SC 280

(ii) Sehdev Singh Verma vs. JPS Verma AIR 2016 Delhi 1.

26. That apart, Mr. Sanjeev Sindhwani has also submitted

that the claim of the plaintiff appears to have been based on the

agreement to sell dated October 16, 1979. However, it is

submitted that no right can be asserted on the basis of an

agreement to sell as an agreement to sell creates no interest in the

property. He had relied upon the judgment of the Supreme Court

in the case of Suraj Lamp & Industries Pvt. Ltd. vs. State of

Haryana, (2012) 1 SCC 656 as reaffirmed by the Division Bench

of this Court in the case of Mukesh Kapil v. Parag P. Tripathi &

Ors., (2016) 159 DRJ 412.

27. With regard to plea of Mr. Rajiv Tyagi that the suit can be

disposed of under Order XV CPC only with the consent of the

parties, it is Mr. Sindhwani's submission that the same is totally

misconceived, inasmuch as the Court can dispose of a suit and

pronounce a judgment under Order XV Rule 1 CPC if the Court

is satisfied that the parties are not at issue on any question of law

and fact. According to him, the Court, having found that there is

no challenge to the registered conveyance deed, which remedy is

even otherwise barred by time, there is no issue of law or fact

arising and the Court was justified in dismissing the suit under

Order XV, CPC. He stated that the appellant, having not

exercised / availed his right to challenge the registered document

conferring absolute rights on the defendant, is precluded from

asserting any right in the property and thus cannot maintain a suit

for partition in respect thereof.

28. That apart, he states that it is a settled position of law that

a Court of record has every inherent power to nip in the bud, a

frivolous suit. He would rely upon the judgment of the Division

Bench of this Court in the case of Keshav Chander Thakur v.

Krishan Chander, 211 (2014) DLT 149 (DB).

29. Mr. J.P. Sengh, learned Senior Counsel appearing for the

respondent No.4 would submit that the respondent No.4 was the

co-plaintiff in the suit bearing CS(OS) No.1507/2009, however,

she was transposed vide order dated November 01, 2012 by the

learned Single Judge of this Court and arrayed as respondent

No.4 and hence, arrayed as respondent No.4 in the present

appeal. The appellant is her brother. The property bearing No.D-

8, Saket, New Delhi, admittedly was purchased vide agreement to

sell dated October 16, 1979 executed by Sh. G.P. Khanna in

favour of three persons namely Ms. Anila Sud (mother of

appellant and the respondent No.4), Sh. J.P. Sud and Ms. Prabha

Sud. It is also an admitted fact that after purchase of the

property, the property was mutated in three names in municipal

records, the electricity meter was also in three names. The said

factum has been admitted by defendant / respondent Nos.1 to 3 in

his written statement at page 70.

30. Mr. Sengh has further submitted that the respondent

Nos.1 to 3 claimed that on January 14, 1994, the conveyance

deed was executed through vendor Sh. G.P. Khanna through his

attorney Sh. B.P. Sud. The respondent Nos.1 to 3 nowhere

disclose how a conveyance deed can be executed in favour of a

single person i.e. Sh. J.P. Sud without any NOC or agreement to

sell in his favour. The respondent Nos.1 to 3 nowhere disclose

forged and fabricated document dated October 16, 1979, wherein,

a copy of which has been placed by the respondent No.4 in a

compilation before this Court and the perusal of the two

agreements dated October 16, 1979 which is in the name of three

persons (namely Ms. Anila Sud, Sh. J.P. Sud and Ms. Prabha

Sud) and the forged and fabricated document in sole name of Sh.

J.P. Sud would show that it was fabricated and used for getting

the conveyance deed. These documents were not placed on

record by respondent No.1 to 3. The respondent No.4 is stated to

have acquired the knowledge of the forged agreement dated

October 16, 1979 in April 2017 only.

31. According to him, the finding given by the learned Single

Judge in impugned order dated February 01, 2018 has virtually

decided the fate of the suit which has been filed by the

respondent No.4 along with the appellant. In para 21 of the

impugned judgment, the learned Single Judge has dismissed the

suit with respect to property bearing No.D-8, Saket, New Delhi,

the consequence of which is that the learned Single Judge has

accepted the conveyance deed dated January 14, 1994 and

discarded the agreement to sell dated October 16, 1979 which is

admittedly executed between three persons namely Ms. Anila

Sud, Sh. J.P. Sud and Ms. Prabha Sud. It is further submitted that

the finding is adversely affecting the right of respondent No.4,

who is co-plaintiff in a civil suit which is pending in Saket Court,

New Delhi. It is respectfully stated that the finding given by the

learned Single Judge without trial is a finding of fact and will

operate resjudicata to a suit filed by the respondent No.4 along

with the appellant.

32. Mr. Sengh has further stated that vide impugned order

dated February 01, 2018, the learned Single Judge did not

appreciate that the respondent Nos.1 and 2 i.e. Sh. J.P. Sud and

Ms. Prabha Sud are also deriving the right in suit property from

the agreement to sell dated October 16, 1979. If that is so, then

the validity and veracity of the conveyance deed dated January

14, 1994 is also doubtful and to strengthen this argument,

respondent No.4, had stated earlier that a fabricated document

dated October 16, 1979 was created to get the conveyance deed

executed on January 14, 1994. The factum of forged and

fabricated agreement to sell dated October 16, 1979 (in the sole

name of Sh. J.P. Sud) came in her knowledge only in April 2017.

It is submitted that if the finding given by the learned Single

Judge is not set aside then the respondent NO.4 shall be non-

suited as they are in possession of property since its purchase and

more particularly after February 01, 2018 when the respondent

No.1 Sh. J.P. Sud has filed a suit for possession against the

appellant as well as respondent No.4.

33. Mr. Sengh had further submitted that DDA has also

issued a show cause notice for cancellation of the conveyance

deed on the ground that a forged and fabricated agreement to sell

was filed. The peculiar fact of the said agreement to sell is that

the witness to the said agreement is alleged to be the appellant

(who was aged about 4 years) and daughter of Sh. J.P. Sud (Ms.

Shivani Sud) who was only 9 months old at the relevant time.

34. In rejoinder arguments, Mr. Rajiv Tyagi had submitted

that the appellant continues to be in possession of 2 floors of the

residential house and the appellant is entitled to protect his

possession against the Co-owners and in rem under the agreement

to sell dated October 16, 1979 in terms of Section 53-A of the

Transfer of Property Act, unaffected by the introduction of

Section 17(1A) of the Registration Act, 1908. The appellant has

he never parted with the possession of the residential house nor

has ever received any money from the respondent No.1 as

consideration of transferring his rights in the residential house in

favour of the respondent No.1. Thus, the burden of proof would

rest upon the respondent No.1 to prove his exclusive ownership

and the contents and character of the alleged conveyance deed

dated January 14, 1994. The respondent No.1 has been in sole

and exclusive possession of the residential house.

35. According to him, as the appellant is claiming a right and

title in the residential house and is in long and continuous

possession under the agreement to sell dated October 16, 1979,

the appellant need not have sought the relief of declaration of title

in the context of the alleged conveyance deed dated January 14,

1994 and could have straightway sought the partition of his due

share in the residential house.

36. He further states that the appellant is a co-owner of the

residential house with the respondents, under the admitted

agreement to sell dated October 16, 1979; and therefore the

appellant did not require any further declaration of his right. The

respondent No.1 who produced the alleged conveyance deed

dated January 14, 1994 has not sought any relief in relation to the

said conveyance deed by filing any counter-claim in the present

suit nor has he claimed any consequential relief of recovery of

possession of the whole house from the appellant's family. The

respondent No.1 has only in the year 2018 perhaps, filed the Suit

for the Eviction / Recovery of Possession against the appellant

before the District Court, Saket. According to him, it can

therefore be seen that though the respondent No.1 has not prayed

for any relief based on the alleged conveyance deed dated

January 14, 1994, the learned Single Judge has declared him the

lawful owner of the whole house despite the appellant's long

possession of about 40 years.

37. Mr. Rajiv Tyagi has also submitted that the respondent

No.1 has produced the conveyance deed dated January 14, 1994

only in the year 2009 along with his written statement. Thus,

from the years 1994 to 2009, for over 15 years, the respondent

No.1 was fully aware of the lawful possession of their one-half

portion of the residential house by the appellant's family, which

has been 'Open and Hostile' qua the respondent No.1, and the

respondent No.1 having not taken any steps to reclaim the

possession of the whole house from the appellant. From this

legal perspective also, the appellant and his family are stated to

have perfected their title to one-half share of the residential house

by the doctrine of prescription and perfection of title by adverse

possession of more than 12 years.

38. It was further averred that after the respondents filed their

common written statement and for the first time produced the

alleged conveyance deed dated January 14, 1994, the plaintiff had

three options:

(i) to amend his plaint under Order VI, Rule 17 read with

Rule 7 of the Civil Procedure Code, 1908; or

(ii) withdraw the Suit with the leave of the Court to file a

fresh Suit; or

(iii) to file the replication in reply to the written statement and

deny the averments based on the alleged conveyance deed as also

legality and validity of the alleged conveyance deed produced by

the respondents.

39. According to him, it is trite law that on agreement to sell

can be used as a shield only against the transferor (Sh. G.P.

Khanna), though as against all others including the respondents /

Co-Owners it could be used as a sword. Reliance in this regard is

placed on Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra

(2004) 8 SCC 614. It is his submission that the appellant is

entitled to use and rely upon the agreement to sell dated October

16, 1979, as a sword against the respondents / Co-Owners of the

residential house but not against the original owner Sh. G.P.

Khanna.

40. He would draw my attention to judgment of a Special

Bench of the Calcutta High Court in Smt. Siba Rani Devi and

Ors. v. Ramendra Nath Mukherjee, AIR 1963 CAL 46 (SB)

wherein it was held that:

"The question referred to us assumes that the suit under consideration is a suit(1) for partition and separate possession of a share of joint property and / or (2) to enforce a right to a share in a property on the ground that it is joint property, (3) on the footing that the plaintiff is in possession of the property of which he claims to be the co-owner. A suit of this type involves an implicit prayer for declaration of the plaintiff's right to a share in the property. ....... In its essential character the suit is still a suit to enforce a right to a share in a property on the ground that it is joint property."

41. It is his case that by virtue of the judgment of the learned

Single Judge, the suit of the appellant before the District Court

has also become practically infructuous. The respondent would

be entitled to rely upon Order XII Rule 6 CPC in the District

Court Suit based on the judgment of the learned Single Judge.

Thus, all the rights and contentions of the appellant with regard

to the residential house being D-8, Saket, New Delhi, have been

negated by the learned Single Judge. The appellant is relying on

the following further judgments:

(i) State of A.P. and Ors. v. Star Bone Mill and Fertilizer Co. (2013) 9 SCC 319 (Para 9)

On the position that the purported conveyance deed is a

mere piece of paper as the alleged Attorney Sh. BP Sud could not

have conferred a title better than he himself had. The agreement

to sell dated October 16, 1979, can be used as a sword against the

respondents / Co-Owners of the residential house.

(ii) Rambhau Ramdeo Gajre v. Naryan Bapuji Dhotra (2004) 8 SCC 614.

42. Having heard the learned counsel for the parties, the only

issue which arises for consideration is whether the learned Single

Judge was justified in dismissing the Suit with respect to property

D-8, Saket, New Delhi under Order XV CPC and delete the issue

no.1 framed on November 17, 2015.

43. There is no dispute that the Suit has been filed by the

appellant for declaration, partition, permanent injunction and

rendition of accounts. The prayer clause of the Suit reads as

under:

"The plaintiffs therefore respectfully pray that this Hon'ble Court may be pleased to:

(a) pass a Decree for Partition of the properties mentioned in paragraph No.4 by metes and bounds or otherwise by granting to the plaintiffs one half share of the property with separate physical possession of portion that would fall to the share of the plaintiffs and to grant such other and further reliefs as the circumstances of the case may require and this Hon'ble Court may deem fit;

(b) Pass an order stating that the Plaintiffs continue to stay in and be in possession of two floors at D-8, Saket and the property at Sainik farms.

(e) Order that the Defendants shall not resort to punitive measures such as cutting off electricity, water, shutting down of lift etc.

(b) appoint a commissioner to partition of the property;

(c) pass an order of temporary injunction restraining the defendants, their agents or anyone acting on

their behalf from parting with the possession, alienate or transfer the property in any manner during the pendency of the suit.

(d) pass preliminary decree determining mesne profits for the use and occupation of the property and for rendition of the accounts directing the defendants to render the accounts to the plaintiffs for exclusive use of certain properties by defendants from 2003 and pass a decree for recovery of the account and funds due to the plaintiffs on rendition of accounts.

(e) pass a final decree in favour of the plaintiffs and against the defendants.

(f) cost of the suit may also be awarded in favour of the plaintiffs and against defendants."

44. The submission of Mr. Rajiv Tyagi, learned counsel for the

appellant can be summed up as under:

1. That the learned Single Judge could not have dismissed

the Suit under Order XV CPC, as Rule 3 of order XV

CPC postulates the consent of the parties for the

decision on the proposed issue without any evidence

being led.

2. That the very fact that the appellant has filed the present

appeal shows that the appellant had not agreed to the

issue regarding his right in the property being D-8,

Saket, New Delhi being decided without evidence.

3. That the issue regarding appellant's right in the property

D-8, Saket, New Delhi had to be framed under Order

XIV Rule 1 CPC as the appellant had in the Suit

asserted his right of a share in terms of agreement to sell

dated October 16, 1979 executed between G.P. Khanna

as seller and respondent nos. 1 and 3 and Late Mrs.

Anila Sud as joint purchasers.

4. That the appellant would be able to show on the basis of

evidence that purported conveyance deed dated January

14, 1994, though registered, was a sham document and

did not create any right in favour of the respondent no. 1

and is therefore of no legal effect and consequence.

5. That the registration of documents does not confer any

legitimacy upon a document than what is contemplated

in the terms and contents of such registered documents.

In other words, the contents of the documents can still

be challenged and an issue can be tried on the contents

and character of the registered documents and thus the

registered conveyance deed shall operate as an

agreement to sell.

6. That the appellant being in possession of the property is

within its right to file a suit for declaration that the deed

is not binding upon him.

7. That the sale deed is void as Sh. B.P. Sud had no

authority to execute registered conveyance deed in

favour of respondent no.1.

8. That the learned Single Judge has erred in law in

observing that the plaintiff should have amended his

plaint upon coming to know of the alleged registered

conveyance deed as there is no law, practice or

procedure which prescribes that every time a defendant

raises a defence, the plaintiff must amend his suit /

plaint in order to counter the case set up in the defence.

9. That the conveyance deed, being vitiated by fraud,

misrepresentation and manipulation and fabrication of

documents, misrepresentation is the subject matter of a

suit for cancellation of the conveyance deed pending in

the court of learned Addl. District Judge, Saket, New

Delhi and therefore it was incumbent upon the learned

Single Judge to decide if the appellant had any share in

the said house.

10. That the learned Single Judge has failed to notice that

the Supreme Court in Suraj Lamp and Industries

(supra) has not laid down any new law with regard to

the effect of registration of documents and the rights

conferred thereby as the position has always remained

the same. The Supreme Court clarified that its earlier

decision would not affect bona fide transaction and in

any event any transaction that have taken place before

the second judgment (2012 1 SCC 656).

11. That the agreement to sell dated October 16, 1979,

confers legal rights upon the appellant and the

respondent no.4, vis-à-vis, respondent nos. 1 to 3 with

regard to their rights in their residential house and the

amendment under Section 17 of the Indian Registration

Act, 1908 by introduction of sub-section 1(A) on

September 24, 2001 would not affect the case in hand as

the amendment is prospective.

45. Having noted the submissions of Mr. Tyagi, we are of the

view that the appellant has not made out any case for interference

with the impugned order by this court. In so far as the submission

made by Mr. Tyagi on the reliance placed by the learned Single

Judge on Order XV CPC, while dismissing the suit is concerned,

suffice it to state that the said conclusion has to be read in the

context that the learned Single Judge has noted that the conveyance

deed dated January 14, 1994 has been executed in favour of Sh. J.P.

Sud, respondent no.1 herein and the same is with regard to property

no. D-8, Saket, New Delhi and also that the appellant came to know

of the same in the year 2010 and no action has been taken by the

appellant to amend the plaint challenging the conveyance deed and

the appellant having not sought any relief with respect to the

conveyance deed is not entitled to the prayer related to the property

D-8, Saket, New Delhi. In fact, it is now a conceded position that

the appellant and the respondent no.4 have filed a suit before the

District Court, Saket, challenging the conveyance deed dated

January 14, 1994. If that be so, the conclusion of the learned Single

Judge by invoking Order XV CPC, is justified.

46. The plea of Mr. Tyagi that the appellant can assert his rights

in the property on the basis of agreement to sell dated October 16,

1979 is fallacious as the said argument is overlooking the

conveyance deed dated January 14, 1994, which is relatable to

property D-8, Saket, New Delhi and is under challenge in a separate

suit and till such time, the said suit is decided, the property may not

form part of a hotch - potch for being amenable to partition, the

prayer made in the suit wherein the impugned order is passed.

Even the plea of Mr. Tyagi that the contents of the conveyance deed

can still be challenged does not appeal us for the simple reason that

all grounds relatable to the conveyance deed can be taken by the

appellant in the proceedings where the conveyance deed has been

challenged. Hence, the plea that an issue, under Order XIV Rule 1

CPC with regard to the assertion of right by the appellant and its

denial by the respondent no. 1 and also respondent nos. 2 and 3,

needs to be framed, also is without any merit, as in that eventuality

the DDA which is a party to the conveyance deed becomes a

necessary party. Similarly, the plea that the conveyance deed has to

be read in juxtaposition with agreement to sell dated October 16,

1979 is also without any merit and such a submission can be gone

into only if the conveyance deed dated January 14, 1994 is actually

challenged and not otherwise as it is vide the said deed, the rights

have been conveyed to respondent No.1. It must be stated here that

without any prayer sought or incorporated by way of an amendment

to the extent that the conveyance deed dated January 14, 1994 is a

sham document, the property relatable to the documents cannot be

included in the hotch-potch for grant of prayer of partition as

claimed by the plaintiff.

47. The plea that the appellant is in possession and the deed is

not binding upon him also does not appeal to us. In fact the said

submission is contrary to the own conduct of the appellant that he

has challenged the conveyance deed dated January 14, 1994 in a

separate proceedings, which surely suggest, that the appellant is

aware of the fact, that no rights can accrue to him in respect of the

property on the strength of agreement to sell. The submission of

Mr. Tyagi that the power of attorney was specific with regard to the

execution of the sale deed in favour of three co-owners and Sh. B.P.

Sud had no authority to execute the registered conveyance deed in

favour of respondent no.1 exclusively also cannot be a subject

matter of a Suit wherein there is no challenge to the conveyance

deed dated January 14, 1994. Such a plea can be advanced by the

appellant, if so permitted, in the suit where he has challenged the

conveyance deed.

48. In so far as the plea of Mr. Tyagi based on a judgment of

Suraj Lamp and Industries (supra) is concerned, the Supreme

Court has stated that an agreement to sell does not confer any right

in title. It also in the second judgment stated, the judgment shall

not affect the bona fide transactions and in any event any

transactions that have taken place before the second judgment. The

Supreme Court also held that the persons who have entered into

transactions like sale agreement / GPA / Will transfers should be

given sufficient time to regularize transactions by obtaining

respective deeds of conveyance. If that be so, in the case in hand,

the transaction based on the agreement to sell of 1979 stands

superseded by conveyance deed dated January 14, 1994. So, the

sale / transfer of property in respect of property D-8, Saket, New

Delhi is not based on the agreement to sell / power of attorney as in

view of subsequent development, a conveyance deed has come into

existence and till such time the legality of the conveyance deed is

challenged and declared to be illegal by a court of law, the same

shall remain valid.

49. Insofar as the judgments relied upon by Mr. Tyagi are

concerned, in A. Shanmugam (supra), the Supreme Court has held

that the entire journey of a Judge is to discern a truth and pleadings

must inspire confidence and credibility and the same should be the

foundation of litigation. There is no dispute on the said proposition.

But the fact remans that the appellant, who has sought partition of

property D-8, Saket, New Delhi could not have laid a claim on the

said property in view of the existence of the conveyance deed dated

January 14, 1994, which is in favour of the respondent No.1.

Admittedly, the pleadings filed by the appellant do not suggest that

the appellant has challenged the conveyance deed in the suit. The

said judgment has no applicability in the facts of this case.

50. In Makhan Lal Bangal (supra) and Pratima Sinha & Ors.

(supra), the Supreme Court has dealt with the necessity of framing

issues under Order XIV of the CPC and deciding the same as per

the procedure mentioned under Order XIV of the CPC. In terms

thereof, it is a necessity for a point of fact or law to be affirmed by

one party and denied by the other. There cannot be a dispute on the

said proposition of law. But the fact remains that in the case in

hand, even though issues were framed with regard to property D-8,

Saket, New Delhi such a claim could not have been allowed in

favour of the appellant in the absence of any challenge to the

conveyance deed establishing rights in the property in favour of

respondent No.1 and the said issue could neither have been framed

nor decided in favour of the appellant. The learned Single Judge

had rightly dismissed the suit qua that relief and deleted the issue.

51. Insofar as Mayar (H.K.) Ltd. (supra), is concerned, the

Supreme Court has held that the plaint cannot be rejected on the

basis of the allegations by defendants in the written statement. It

held that the plaint has to be read in its entirety to find out whether

it discloses a cause of action or not. The plaint cannot be rejected

under Order VII Rule 11 CPC on the opinion of the Judge, that the

plaintiff may not succeed. Suffice it to state, the said judgment is

not applicable in the facts of this case. Surely, the learned Single

Judge has not dismissed the suit on the principles governing Order

VII Rule11 CPC. Rather, he has dismissed the suit under Order XV

Rule 1 CPC.

52. Insofar as the judgment in the case of Alka Gupta (supra) is

concerned, the Supreme Court, therein, has primarily dealt with

principles governing application of bar under Order II, Rule 2 CPC

as also the principles of constructive res judicata. As regards Order

XV, it is indeed noted that to render a final decision by denying an

opportunity to lead evidence, would be arbitrary and illegal. This

observation, however must be read in light of the fact that the

learned Single Judge, and the Division Bench of the High Court, in

that case, had recorded factual findings on inferences from the

plaintiff's conduct, while branding her as an unscrupulous person,

abusing the process of Court. No opportunity was afforded to the

plaintiff therein, to explain her conduct. In the present case,

however, in the absence of any challenge to the conveyance deed

dated January 14, 1994, it cannot be said that the ownership with

regard to Plot No. D-8, Saket, New Delhi is directly and

substantially in issue in the suit. Surely, on the strength of the

agreement to sell dated October 16, 1979, the appellant could not

have made a claim for ownership with regard to the said plot. In

any case, it is a conceded case of the appellant that the appellant has

now challenged the conveyance deed dated January 14, 1994,

relatable to property D-8, Saket, New Delhi.

53. Insofar as Maria Margarida Sequeira Fernandes & Ors.

(supra) is concerned, the said judgment is on the proposition that

the truth should be the guiding light. There is no dispute on the said

proposition of law. It must be held that the truth shall only be

looked into if there is in fact, a challenge by the appellant to the

conveyance deed dated January 14, 1994 and not otherwise.

54. In Biswanath Agarwalla (supra), the Supreme Court has

held that certain issues, not framed, can be prejudicial to the rights

of the parties involved. In the case in hand, no prejudice has been

caused to the appellant as there is no prayer challenging the

conveyance deed dated January 14, 1994 nor are there any

pleadings in pursuance of such a relief. The appellant could not

have made a claim for the prayer relatable to the said conveyance

deed, as it must be held that the conveyance deed dated January 14,

1994 is not an issue, which falls for consideration in the suit.

55. In Ameer Minhaj (supra), the Supreme Court has held that

a registered instrument is subject to rebuttable presumption of

legality and validity. There is no dispute, insofar as the said

proposition of law is concerned. Surely, the appellant would be

within its right to challenge the validity of a registered instrument

i.e conveyance deed but that shall be in an appropriate proceedings

and not in proceedings where he has not challenged the conveyance

deed.

56. Similarly, the judgments in S. Kaladevi (supra) and

Abhishek Sharma (supra) shall have no applicability in the

peculiar facts of this case.

57. In view of the above, we are of the view that the present

appeal is without any merit and the same is liable to be dismissed.

Ordered accordingly.

CM No. 14761/2018 (for stay) Dismissed as infructuous.

V. KAMESWAR RAO, J

CHIEF JUSTICE

APRIL 01, 2019/aky/jg