•r" % 22.03.2011 Present: Ms. Malavika Rajkotia & Mr. Vivek Singh, Advocates for the Appellant with Mr. Jitendra Singh, Managing Director of the Appellant in person. Mr.Anwar Najmi, Attorney of R-1 in person. + RFA No.15/2011 and CM No.2472/2011 (Stay) * The appellant has innpugned the order dated 30.11.2010 passed by the learned Single Judge of this Court in CS(OS) No.2411/2010 in terms whereof the suit has been held not to be maintainable and has been rejected under Order 7 Rule 11 of the Code of Civil Procedure, 1908. The appellant had filed a suit seeking a declaration that the agreement dated 01.01.2010 executed by the first defendant in favour of the second defendant and registered on 08.01.2010 is illegal and not binding on the plaintiff. Consequently, relief of permanent injunction was also sought. The subject matter is stated to be property bearing no. A-4, Chirag Cooperative Housing Building Society, Chirag Enclave, New Delhi. It is the claim of the appellant that the suit property originally belonged to Smt.Sayeeda Mehdi Imam who was the predecessor-in-interest of the first defendant, who had gifted her property to her daughter Ms.Shamim Amna. It is alleged that the brother-in-law of Smt.Sayeeda Mehdi Imam tried to take advantage of the situation by fabricating a Will in respect of the RFA No.15/2011 Page 1 of 4 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified ' V suit property and pursuant wliereto he tried to sell the property on the basis of the Will. A title suit canne to be filed by . Smt.Sayeeda Mehdi Imam being Suit No.71/2000 before the Court of Subordinate Judge, Patna seel<ing a declaration that the purported Will dated 03.05.1998 executed by her daughter was forged and fraudulent. Needless to add that the daughter had passed away and that is why this Will was sought to be set up while the claim of Smt.Sayeeda jviehdi Imam was that on the demise of the daughter, the property reverted back to her being the legal heir. Smt.Sayeeda Mehdi Imam is stated to have entered into an agreement for consideration with the appellant. Monies are stated to have been paid from time to time. Smt.Sayeeda Mehdi Imam passed away and thereafter the issue arose about the impleadment of the legal representative. Mr.Faiz Murtaza Ali was brought on record as the legal representative after some contest. The cause of action for filing of the suit is stated to be a news ^ item dated 14.01.2010 in the 'form of a notice informing the public that the first defendant had entered into an agreement to sell of the property in question with the second defendant on 01.01.2010 and the said agreement had been cancelled. It is the case of the appellant that since there was prior agreement to sell between the predecessor-in-interest of the first defendant and RFA No.15/2011 Page 2 of 4 vO the appellant, the second agreement was null and void. In terms of the impugned order, the learned Single Judge has found that since the appellant had no legal right, title or interest in the suit property, it could not seek a declaration. On consideration of the controversy in the suit, we had recorded the statement of Mr. Jitender Singh, Managing Director of the appellant on 22.02.2001. It emerged from the statement that the title suit instituted in Patna was being prosecuted on behalf of Mr.Faiz Murtaza Ali by his attorney Mr. Anwar Najmi and that the said two persons had no dispute with the appellant nor were they disputing the prior agreement to sell in favour of the appellant. We deferred the further proceedings for today to record the statement of Mr.Anwar Najmi. We have recorded the statement of Mr. Anwar Najmi who has been prosecuting the title suit in Patna on behalf of Mr.Faiz Murtaza Ali and who has confirmed that there is really no dispute between the appellant and Mr.Faiz Murtaza Ali or for that matter his attorney i.e. the deponent. The result of the aforesaid is that there is really no Hs between the appellant and R-1, which is required to be adjudicated upon. No rights have been exercised by R-2 in pursuance of agreement dated 01.01.2010 for which evidently notice of cancellation has been given. RFA No.15/2011 Page 3 of 4 In view of the aforesaid, learned counsel for the appellant ' states that the appellant may be permitted to withdraw the suit itself with liberty to take out appropriate legal proceedings at an appropriate stage, if anyone disputes the rights under the agreement between the appellant and Smt.Sayeeda Mehdi Imam. Liberty granted. The result of the aforesaid is that the impugned order 30.11.2010 stands substituted by the order of withdrawal of the suit at the behest of the appellant (original plaintiff) in the facts and circumstances set out aforesaid. The appeal and the application accordingly stand disposed of. <r SANJAY KISHAN KAUL, J. MARCH 22, 2011 RAJIV SHAKDHER, J. dm RFA No.15/2011 Page 4 of 4