JUDGMENT
Sanjay Kishan Kaul, J.
CS (OS) No. 111 of 2005 and Crl. M. No. 7016 of 2006 (under Section 340 Cr.P.C.)
1. A suit for declaration, possession and mesne profits has been filed by the plaintiffs in respect of property No. 29-A, Gali No. 1, Govindpuri, Kalkaji, New Delhi (hereinafter referred to as the suit property). The suit property is a freehold property and was sold by Shri Ram Rekhi Gujjar to one Shri Bihari Lal vide registered sale deed dated 23.8.1965. Shri Bihari Lal in turn executed a sale deed in favor of one Shri Chaman Lal on 24.12.1970 who executed a sale deed in favor of Shri Balbir Singh on 4.2.1974. Shri Balbir Singh passed away leaving behind his wife Shrimati Gurbaksh Kaur and two sons namely Shri Gajender Singh and Shri Jaswinder Singh. Shrimati Guarbaksh Kaur also passed away in January 1994 and the two surviving sons applied for mutation of the property in their names. The mutation was carried out in their names on 1.9.1994.
2. The said two persons are stated to have entered into an agreement to sell in favor of the plaintiffs soon thereafter on 14.9.1994 and the original documents are stated to have been handed over to the plaintiffs. Defendant No. 1 is stated to be in possession of the suit property as a licensee in pursuance to a License Deed executed by late Shrimati Gurbaksh Kaur in favor of defendant No. 1. The plaintiffs claim to have sent intimation of the sale to defendant No. 1 vide letter dated 14.9.1994.
3. It is the case of the plaintiffs that in December 1996 they came to know through a local property dealer that defendant No. 1 was claiming itself to be the owner of the property and was offering the same for sale. The plaintiffs gave a public notice in a local newspaper on 31.12.1996 about their rights in the suit property.
4. There appears that some differences cropped up between the plaintiffs and Shri Jaswinder Singh and Shri Gajender Singh and the plaintiffs filed a suit for specific performance before this Court in which interim orders were granted on 7.1.1997 restraining the defendants from entering into any deal, selling, alienating or creating any third party interest as regards the suit property. The suit was still pending when the said two persons came forward to execute a sale deed in favor of the plaintiffs on 17.1.1997 and also filed written statements admitting the claims of the plaintiffs. However, the present defendant No. 1 came forward and stated that he had sold a portion of the suit property to defendants 2 and 3 in pursuance to rights given to defendant No. 1 by the original two owners. The plaintiffs thereafter amended the plaints and sought a decree of permanent injunction against the defendants.
5. The stand of defendant No. 1 contesting the said suit was that Shri Gajender Singh and Shri Jaswinder Singh had executed the agreement to sell, GPA, etc. on 15.2.1996 and 18.10.1996 respectively and in pursuance to the said authorisation and rights created, defendant No. 1 had further sold the property to defendants 2 and 3 vide agreement to sell dated 16.12.1996. In view of this written statement, the defendants sought leave to withdraw the suit for a mere permanent injunction in order to enable them to claim complete reliefs with liberty to file a fresh suit. However, learned Additional District Judge (before whom the suit in the mean time had been transferred) in terms of the order dated 17.11.2004 observed that the decree of permanent injunction sought by the plaintiffs had nothing to do with the relief of possession and mesne profits and for that reason dismissed the suit as withdrawn. It is thereafter that the present suit has been filed.
6. The suit has been contested by all the defendants. Defendant No. 1 has taken a stand that the plaintiffs had played a fraud. Defendant No. 1 claims rights in the suit property on the basis of the agreement to sell dated 15.2.1996 and 18.10.1996 stated to be executed by Shri Gajender Singh and Shri Jaswinder Singh respectively. Defendant No. 1, in fact, seeks a declaration that the agreement to sell dated 14.9.1994 and the sale deed dated 17.1.1997 are invalid. The counter claim, however, appears not to have been registered and even the court fee does not appear to have been filed.
7. Defendants 2 and 3 naturally claim rights from defendant No. 1 and have resisted the suit on various grounds. It is their case that defendant No. 1 took the entire suit property on rent from late Shrimati Gurbaksh Kaur on 22.4.1979. Shrimati Gurbaksh Kaur stated to have entered into an agreement to sell on 2.11.1993 with Shri K.S. Bhardwaj and Shri Chetan Bhardwaj for a sale consideration of Rs.9,60,000.00 and even received earnest money of Rs.50,000.00. Shrimati Gurbaksh Kaur passed away in January 1994 and the property was mutated in the name of her sons. Shri Gajender Singh in respect of his half share of the property executed an agreement to sell dated 15.2.1996 for a consideration of Rs.4,55,000.00 consisting of a cheque of Rs.4,35,000.00 and Rs.20,000.00 in cash. Simultaneously a receipt for the full amount was also executed on the same date and a General Power of Attorney and a Will were executed and registered. The proprietary possession is stated to have been handed over of the property simultaneously apart from execution of an indemnity bond. Similar documents were executed by Shri Jaswinder Singh on 18.10.1996. Defendant No. 1 in turn sold half portion of the suit property on 16.12.1996 to defendants 2 and 3 by execution of a registered General Power of Attorney of the same date apart from indemnity bond and Special Power of Attorney, Receipt, Agreement to Sell and an affidavit along with possession.
8. In terms of the order dated 20.3.2006, the following issues were framed:
1. Whether the suit of the plaintiff is hit by Section 52 of the Transfer of Property Act?
2. Whether the rights have accrued in favor of plaintiffs out of Sale Deed dated 17.1.1997 having got executed during the pendency of the suit and stay order?
3. Whether the suit of the plaintiff is hit by doctrine of res judicata and lis pendense as the earlier suit as per Section 11 of CPC and Order 2 Rule 2 CPC?
4. Whether the suit of the plaintiff is also hit under Section 11 of the CPC as per Eviction Petition No. 112/97 filed by the plaintiff against defendant?
5. Whether the suit has not been properly valued for the purpose of court fees for the relief of declaration and deserves rejection under Order 7 Rule 11 CPC?
6. Whether defendants have any right or interest in the suit property so as to resist the claim of the plaintiffs for a decree of declaration and possession?
7. Whether various objections raised by the defendants in respect of the claim of the plaintiffs is redicules and frivolous and has been raised only with a view to continue the illegal occupation of the defendants in the suit property?
8. Whether the counter claim of defendant No. 1 based on documents viz. Power of Attorney, sale deed, etc. does not disclose any cause of action in favor of the defendants and hence, the counter claim is liable to be rejected?
9. Whether the counter claim seeking declaration that the documents dated 14.9.94, 29.1.94 and 17.1.97 are void is not maintainable being barred by limitation?
10. Whether the counter claim of defendant No. 1 is based on documents viz. Power of Attorney, sale deed, etc. does not disclose any cause of action in favor of the defendants and hence, the counter claims are liable to be rejected?
11. If the defendants have no right in respect of the suit property whether the plaintiffs are entitled to a preliminary decree for possession of suit property?
12. Whether the suit of the plaintiff is bad in law being not supported by any site plan as per Order 7 Rule 3 CPC?
13. Whether the Sale Deed dt. 17.1.97 is a forged, fabricated and manipulated document and no right has accrued in favor of the plaintiff from the alleged Sale Deed?
14. Whether the defendants are owners and are in possession of the property as per their own rights?
15. Whether the agreement to sell dated 14.9.94 and the two sale deeds each dated 17.1.97 are illegal, null and void and of no consequence?
16. Whether the plaintiff is entitled to the relief of declaration?
17. Whether the plaintiff is entitled to possession?
18. Whether the plaintiff is entitled to mesne profits/damages?
9. The parties agreed that issues 1 to 9 and 12 are legal issues and can be taken up for arguments at that stage without evidence being recorded. On 10.11.2006, learned Counsels for the parties agreed that in view of the fact that issue No. 8 and issue No. 10 are the same, issue No. 8 has got repeated as issue No. 10. It was, thus, agreed that the legal issues to be decided would be issue Nos.1 to 12.
10. Learned Counsels for the parties have addressed their submissions on the issues aforesaid and on consideration of the pleadings of the documents, the findings are set out hereinafter:
Issue Nos.1 and 2 Whether the suit of the plaintiff is hit by Section 52 of the Transfer of Property Act?
Whether the rights have accrued in favor of plaintiffs out of Sale Deed dated 17.1.1997 having got executed during the pendency of the suit and stay order?
11. The plaintiffs claim right under the Agreement to Sell dated 14.9.1994 executed in their favor by the recorded owners of the suit property. The plaintiffs filed a suit for specific performance against the recorded owners in which defendant No. 1 was arrayed as a party since defendant No. 1 was a licensee in the part of the premises. On the interim application filed by the plaintiffs restraint orders were passed on 7.1.1997.
12. Defendant No. 1, however, sought to set up a case that he had acquired certain rights from the recorded owners and that a portion of the suit property was sold to defendants 2 and 3. In view of the fact that the claim of the plaintiffs for specific performance stood satisfied against the recorded owners, the plaintiffs amended the suit seeking a decree of permanent injunction. The plaintiffs were advised to file a claim for declaration, possession and mesne profits and thus sought to withdraw the suit but the trial court came to the conclusion that the nature of relief for injunction was different and thus no liberty was required to be granted to the plaintiffs.
13. Section 52 of the Transfer of Property Act, 1882 provides for a restriction on transfer of a property during the pendency of legal proceedings so as to affect the rights of a party, which may accrue in favor of that party under any decree or order in the suit. I am unable to accept the submission of the learned Counsel for the defendants that the said provision would have any application to the facts of the case. It is the plaintiffs who had filed the other suit and nothing prevented the recorded owners from transferring the suit property in satisfaction of the claim of specific performance made by the plaintiffs in their suit. The interim orders passed in favor of the plaintiffs do not preclude the execution of a Sale Deed in their favor.
14. Similarly, I am unable to persuade myself to agree with the submission of the learned Counsel for the defendants that no rights can be stated to have accrued in favor of the plaintiffs in pursuance to the Sale Deed dated 17.1.1997. There was no requirement of any leave being sought for execution of the Sale Deed in favor of the plaintiffs.
15. It has to be kept in mind that the plaintiffs have claimed rights in pursuance to the Sale Deed dated 17.1.1997 while the defendants claimed rights under the Agreement to Sell dated 14.9.1994 and the subsequent Sale Deeds. A perusal of issues 13, 14 and 15 show that the same have been framed on the basis of these counter claims of title by the two parties.
16. The defendants also seek to take advantage of certain findings by the trial court at Amritsar to which the plaintiffs were not a party. Those findings can hardly be read against the plaintiffs.
17. In view of the aforesaid, I am of the considered view that the suit of the plaintiffs is not hit by Section 52 of the Transfer of Property Act, 1882 and the question whether rights had accrued in favor of the plaintiffs in pursuance to the Sale Deed dated 17.1.1997 or whether the defendants had acquired any right in the suit property in pursuance to various documents alleged to have been executed by the recorded owners can only be determined after trial in the suit while recording the findings on issue No. 13 onwards.
18. The said two issues are answered accordingly. Issue No. 3 Whether the suit of the plaintiff is hit by doctrine of res judicata and lis pendense as the earlier suit as per Section 11 of CPC and Order 2 Rule 2 CPC?
19. The plaintiffs had filed a suit for specific performance, which continued as a suit for mere injunction on the recorded owners executing a Sale Deed in favor of the plaintiffs. The trial court dealt with the application of the plaintiffs under Order 23 Rule 1 CPC in terms of the order dated 17.11.2004 The trial court noticed that the suit was a continuing one only for permanent injunction restraining defendant No. 1 from entering into any deal in respect of the property in suit which had nothing to do with the reliefs of possession, mesne profits/damages for which the plaintiffs claimed they would file a fresh suit. In view of this finding, which is also in accordance with law, there can be no doubt that after the withdrawing the suit for injunction, the present suit could be filed for the reliefs as set forth in the plaint.
20. The issue is answered in favor of the plaintiffs. Issue No. 4 Whether the suit of the plaintiff is also hit under Section 11 of the CPC as per Eviction Petition No. 112/97 filed by the plaintiff against defendant?
21. The aforesaid issue arises out of the proceedings filed by the plaintiffs under the Delhi Rent Control Act, 1958 vide Eviction Petition No. 112/1997. The said petition was, however, dismissed on the ground that a license was created and not a lease. Thus, the Rent Controller would have no jurisdiction in the matter.
22. It cannot be lost sight of that the jurisdiction of the Rent Controller was claimed only on account of the fact that defendant No. 1 may be a tenant. Once defendant No. 1 is held to be a licensee, the Rent Controller would have no jurisdiction and thus the petition was held to be not maintainable. The present suit can hardly be barred by Section 11 of the CPC on account of the prior eviction proceedings and the reason for its rejection.
23. The issue is answered in favor of the plaintiffs. Issue No. 5 Whether the suit has not been properly valued for the purpose of court fees for the relief of declaration and deserves rejection under Order 7 Rule 11 CPC?
24. The plaintiffs have valued the suit for each of the reliefs and the relief of possession is based on the value of the property. In fact, the relief of declaration is really superflous because the plaintiffs are seeking possession on the basis of being the owners of the property as per the Sale Deed executed in their favor. I fail to see as to how the suit is not property valued for the purposes of court fees and thus the issue is answered in favor of the plaintiffs.
Issue Nos.6, 7 and 11
Whether defendants have any right or interest in the suit property so as to resist the claim of the plaintiffs for a decree of declaration and possession?
Whether various objections raised by the defendants in respect of the claim of the plaintiffs is redicules and frivolous and has been raised only with a view to continue the illegal occupation of the defendants in the suit property?
If the defendants have no right in respect of the suit property whether the plaintiffs are entitled to a preliminary decree for possession of suit property?
25. It has already been noticed above that the claims of the two parties are based on different documents stated to have been executed in respect of the property in suit. The plaintiffs claims right under the Sale Deed dated 17.1.1997 which is in pursuance to the Agreement to Sell dated 14.9.1994. On the other hand, it is the case of the defendants that Shrimati Gurbaksh Kaur, predecessor-in-interest of the last recorded owners entered into an Agreement to Sell on 2.11.1993 with Shri K.S. Bhardwaj and Shri Chetan Bhardwaj. The recorded owners thereafter are stated to have executed agreements in respect of their half shares on 15.2.1996 and 18.2.1996. No Sale Deed was executed but only Agreement to Sell, Power of Attorney, Will, Receipt, Indemnity Bond and letters of proprietary possession were issued. It has to be kept in mind that the suit property is freehold and there was no impediment to the execution and registration of the Sale Deeds. Defendant No. 1 in turn is stated to have sold half portion of the property to defendants 2 and 3 by executing the similar documents on 16.12.1996.
26. It is also the case of the plaintiffs that the defendants having failed to file any suit for specific performance. On the basis of their agreements any claims on that behalf would be barred by time.
27. In my considered view, the afore said matters are yet to be tried and cannot be decided without recording evidence. In fact, the issues arising out of the claims of the two set of parties are based on documents that have already been framed being issues 13 onwards and would be decided while adjudicating those issues post trial.
28. The issue are answered accordingly. Issue Nos.8 and 10 Whether the counter claim of defendant No. 1 based on documents viz. Power of Attorney, sale deed, etc. does not disclose any cause of action in favor of the defendants and hence, the counter claim is liable to be rejected?
Whether the counter claim of defendant No. 1 is based on documents viz. Power of Attorney, sale deed, etc. does not disclose any cause of action in favor of the defendants and hence, the counter claims are liable to be rejected?
29. Insofar as issues 8 and 10 are concerned, it cannot be said that the documents executed, without their veracity being decided post trial, in favor of the defendants do not disclose a cause of action in favor of the defendants. The merits of counter claims can only be decided after trial and thus the issues are answered in favor of the defendants. Issue No. 9 Whether the counter claim seeking declaration that the documents dated 14.9.94, 29.1.94 and 17.1.97 are void is not maintainable being barred by limitation?
30. This issue arises out of the plea of limitation raised by the plaintiffs but in view of the facts stated hereinabove, I am of the considered view that trial has to be recorded to determine this issue and thus this issue is left open to be decided post trial.
Issue No. 12
Whether the suit of the plaintiff is bad in law being not supported by any site plan as per Order 7 Rule 3 CPC?
31. The plea of the defendants is based on the provisions of Order 7 Rule 3 CPC, which reads as under:
ORDER VII PLAINT….
3. Where the subject-matter of the suit is immovable property. – Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.
32. A reading of the aforesaid provision shows that all that is required is the description of the property sufficient to identify. There is no dispute in respect of the suit property and it is nowhere provided that a site plan must be annexed to the plaint.
33. The issue is answered in favor of the plaintiffs.
34. The result of the aforesaid is that the suit is liable to go to trial for decisions on issues 9, 13 to 18 while preliminary issues 1 to 8 and 10 to 12 stand decided as aforesaid.