Civil Revision No. 6844 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6844 of 2006 Date of decision: 17.02.2010 Mrs. Usha Gera ....Petitioner Versus M/s Achiever Builders Private Limited, Kalindi Hills, Pali Road, Sector 49, Faridabad ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. S.N. Saini, Advocate, for the petitioner. Mr. M.L. Sarin, Sr. Advocate, with Mr. Vivek Sood, Advocate, for the respondent. VINOD K. SHARMA, J. This revision petition is directed against the order dated 25.11.2006, passed by the learned Additional District Judge, Faridabad, whereby the order dated 19.9.2006, passed by the learned Civil Judge (Junior Division), Faridabad, was set aside, and the application moved by the petitioner under Order 39 Rules 1 and 2 of the Code of Civil Procedure, was ordered to be dismissed. The plaintiff/petitioner filed a suit for declaration and permanent injunction, claiming her to be absolute owner and in possession of plot No. 4442, Apollo Co-operative House Building Society, T.P. Scheme No. III (Part-1), 23 sq. yds., situated at Sector 49, Faridabad. The ownership was claimed on the basis of registered sale deed dated 9.3.2006, registered with the office of Joint Sub-Registrar, Faridabad. It was pleaded, that the defendant/respondent had no concern Civil Revision No. 6844 of 2006 -2- with the plot, as it was only the owner of the neighbouring land, on which duplex houses/villas for sale were being constructed. The case of the plaintiff/petitioner was, that on 19.7.2006, it was noticed that the defendant and its employees/agents were preparing to encroach upon and raise construction over the suit property, illegally, unlawfully and forcibly. Her request to desist was not accepted and consequently, the suit was filed. It may be pertinent to notice here that Apollo Co-operative House Building Society was the owner of land in village Nawada Koh and village Bakhri, covered under Town Planning Scheme-3 (Part-1), approved by the Municipal Corporation, Faridabad. Sh. Sanjay Kumar Verma son of late Sh. Raj Pal Singh, who was member of the Society, purchased plot No. 4442 measuring 23 sq. yards for residential purposes on a sale consideration of Rs.94,000/- (Rupees ninety four thousand only). Sale deed was duly executed and registered in favour of Sanjay Kumar Verma on 3.10.1997. In the conveyance deed, it was claimed by the Apollo Co-operative House Building Society, that it was the owner of the plot, which was agreed to be sold to Sh. Sanjay Kumar Verma, for residential purposes. However, the right was reserved to enhance the tentative price in accordance with the rules of the Society. A stipulation was made in the sale deed that transferee shall have no right to transfer by way of sale/gift/mortgage or otherwise, the site in full or in part of any right title or interest without permission of the Society, except on such terms and conditions as it may think fit. Clause 11 of the sale deed provided as under: - Civil Revision No. 6844 of 2006 -3- “11. In the event of non-payment of the additional price/charges within the fixed period prescribed by the vendor society/competent authority by the transferee or in the event of breach of any other conditions of sale the society may impose penalty or resume the land or both in accordance with the provisions of the rules/regulations of the society/competent authority. In the event or resumption it shall be lawful for the society notwithstanding the waiver of any previous cause or right for re-entry thereon or any part thereof to possess retain and enjoy the same as to his former estate and the transferee shall not be entitled to refund of the sale price or any part thereof or to any compensation whatsoever on account of such reentry except in accordance with the provisions of the rules of the society/competent authority.” Sh. Sanjay Kumar Verma on 6.4.2005 i.e. after lapse of eight years, sold the plot to Sh. Surjit Gupta son of Anand Parkash Gupta for a sale consideration of Rs.7,75,500/- (Rupees seven lac seventy five thousand and five hundred only), and thereafter on 9.3.2006, Sh. Surjit Gupta sold the plot in question to the plaintiff/petitioner. The plaintiff/petitioner by claiming herself to be owner of the plot in dispute filed a suit for declaration and also prayed for injunction. The learned trial Court allowed the injunction application, but the learned Additional District Judge accepted the appeal by taking into consideration, the question as to which of the parties had the better title qua the disputed property. The learned lower appellate Court observed, that the petitioner was claiming ownership in the disputed plot on the basis of sale deed bearing document No. 19741 dated 9.3.2006, which, according to the learned lower appellate Court, was bogus document and Civil Revision No. 6844 of 2006 -4- nonest in the eyes of law. The sale deed was said to be in violation of conveyance deed dated 3.10.1997, executed by the Apollo Co-operative House Building Society, in favour of Sh. Sanjay Kumar Verma son of Rajpal Singh. The learned appellate Court took a view, that as per Clause 2 of the conveyance deed, Sh. Sanjay Kumar Verma, the original vendee from the Apollo Co-operative House Building Society, was not competent to sell the plot without the permission of the Society. The learned lower appellate Court also came to the conclusion, that possession of the plot was not handed over as vendee had not paid the full development charges, as were required to be paid. The learned appellate Court also held that the plaintiff/petitioner never entered into possession, as the sale deed executed in her favour was silent about possession. The learned appellate Court further held that the defendant had got the site plan, of the proposed construction, approved from the Municipal Corporation, Faridabad, and also that the defendant was owners of 20 acres of land surrounding khasra No.203, which was being developed under the name and style of 'Status Villas' and the entire project was in progress. The learned appellate Court found, that the photographs on record showed that the construction had been raised upto the roof level and that the disputed plot was also shown under the ownership of the defendant. Therefore, it was held, that the plaintiff/petitioner had prima facie no right, title or interest in the disputed plot. The learned appellate Court, thus, came to the conclusion that Civil Revision No. 6844 of 2006 -5- the learned trial Court wrongly held, that the plaintiff/petitioner had prima facie case in her favour and that the balance of convenience was also in her favour, which resulted in mis-carriage of justice. The learned appellate Court further held, that it was the defendant, who was to suffer irreparable loss in case injunction was not granted. The appeal was accepted, and the application moved by the plaintiff/petitioner under Order 39 Rules 1 and 2 was dismissed. Mr. S.N. Saini, learned counsel, appearing on behalf of the petitioner vehemently contended, that the judgment and order passed by the learned lower appellate court cannot be sustained in law, as it has not reversed the reasoning given by the learned trial Court in holding, that the petitioner had a better title and was owner of the plot. The contention of the learned counsel for the petitioner was, that the learned lower appellate Court based its findings, on the letter dated 26.8.2006, said to have been issued by the Apollo Co-operative House Building Society, wherein it was averred that the possession of the plot was not handed over to Sh. Sajnay Kumar Verma when the conveyance deed was executed in his favour. In the said letter it was also mentioned that vendee was asked to make the additional payment, but he failed to make the payment towards development charges, therefore, the general body had unanimously decided to realize the net assets of the Society. It was also decided to sell the land to M/s Swantantra Land and Finance Co. Pvt. Ltd. for refund of payment to its members. More than 2/3rd members had collected their full and final payment. However, Sh. Sanjay Kumar failed to submit the requisite Civil Revision No. 6844 of 2006 -6- documents. It was also said in the letter, that the Society failed to understand as to how the later illegally and unlawfully sold the land mentioned above without the knowledge of the Society. The sale was in violation of the terms and conditions of the conveyance deed. The sale was also said to be illegal. It is interesting to note, that the latter dated 26.8.2006, on which strong reliance was placed by the learned lower appellate Court, was written after the filing of the suit i.e. on 1.8.2006 and was of no consequence. Learned counsel for the petitioner also placed on record the report made by the Assistant Registrar in response to letter written by the petitioner, wherein it has been mentioned, that as per the office record maintained by the office, the address of the Society is, H. No. 305, Sector 11, Faridabad, whereas letter Annexure P-4, which was relied upon by the learned lower appellate Court, the address of the Society given was A-460, Nehru Ground, Faridabad. The learned counsel for the petitioner, therefore, contended, that the order passed by the learned lower appellate Court was prima facie based on inadmissible documents, and on the face of it perverse, specially when till date the allotment/sale in terms of Clause 11 of the conveyance deed was not cancelled. It was further the contention of the learned counsel for the petitioner, that the learned appellate Court wrongly held, that the possession of the plot was not handed over to the petitioner, though the site plan was duly sanctioned by the Municipal Corporation for construction and the loan was also sanctioned by the bank for the Civil Revision No. 6844 of 2006 -7- purpose. Mr. M.L. Sarin, learned senior counsel, appearing on behalf of the respondent strongly contended, that the learned appellate Court was right in coming to the conclusion that the plaintiff had no right or title in the property, in view of Clause 1 and 2 of the conveyance deed executed in favour of Sh. Sanjay Kumar Verma, wherein it was clearly stipulated that vendee had no right to transfer the plot by way of sale, gift or mortgage, without permission of the Society. The learned senior counsel for the respondents also referred to the judgment and decree of the learned lower appellate Court, wherein it was held, that the petitioner was not in possession of the property, and furthermore that the construction had been raised on dispute plot, thus, the suit filed by the petitioner for injunction prima facie was not competent. It was also the contention of the learned senior counsel, that this revision petition itself rendered infructuous, because the petitioner was not in possession. The petitioner, therefore, cannot seek the restrain of alienation or transfer of the flat, as it is not the main relief claimed in the suit. This relief, therefore, cannot be claimed by way of interim relief. Learned senior counsel for the respondent also contended, that the respondent is owner of 20 acres of land, including the land in dispute. The construction has been raised after approval from the Municipal Corporation, therefore, the petitioner has no prima facie case in her favour. The revision petition deserved to be dismissed. On consideration, I find that there is a force in the contentions Civil Revision No. 6844 of 2006 -8- raised by the learned counsel for the petitioner. The letter, on which reliance has been placed by the learned appellate Court, is the letter issued by the Society after the filing of the suit. There is nothing on record showing that the sale in favour of Sh. Sanjay Kumar Verma was ever cancelled or any notice issued to him for deposit of money. Nothing has been brought on record, whether the procedure as envisaged under the Haryana Co-operative Societies Act, 1984, was followed, by the Society before sale of its assets. Section 89 of the Haryana Co-operative Societies Act, reads as under: - “89. Acquisition or disposal of property – No co- operative society shall purchase, acquire, lease, sell any land or construct any building or other immovable assets of the society except with the prior approval of the Registrar.” Nothing was placed on record to show as to when the approval of Registrar was taken by the Apollo Co-operative House Building Society, to transfer the land in favour of M/s Swantantra Land and Finance Co. Pvt. Ltd., which further transferred the land to the respondent-Company. In absence of the approval of the Registrar, the transfer of land by the Society, being contrary to the statute, was of no consequences, to hold that the defendant/respondent had a better title than the petitioner. Interpretation given by the learned appellate Court to Clause 1 and 2 of the conveyance deed also cannot be sustained. The reading of Clause 1 and 2 shows that there was not a complete bar to transfer, the only restriction was, that the sale could be made with the prior Civil Revision No. 6844 of 2006 -9- permission of the Society. The very fact that the Society did not raise any objection to the sale by way of registered conveyance deed, would mean an implied consent. The sale, therefore, could not be said to be void and passing on no title to the plaintiff/petitioner, as held by the learned lower appellate Court. Clause 11 of the conveyance deed provided a remedy to the Society to take action in case of the violation of the terms of the conveyance deed. The action taken was again subject to adjudication by the Registrar, in case of a dispute. In absence of cancellation of the sale deed, it was not open to the learned appellate Court to hold that the sale transactions were illegal and without jurisdiction as was projected by the Society in the letter addressed to the respondent after the filing of the suit. The learned lower appellate Court had wrongly placed reliance on the subsequently created document, to non-suit the plaintiff/petitioner. The contention of the learned senior counsel for the respondent that no relief can be granted because construction has been raised, is again of no consequences, as all developments during the pendency of the suit are subject to lis pendens and the Court is competent to modify and grant relief under the changed circumstances, to protect the rights of the parties, in equity and justice. The learned lower appellate Court was not correct in its conclusion, that the petitioner did not have prima facie case or balance of convenience not in her favour. The rights created in favour of the plaintiff/petitioner in plot were prior in time. The defect in the title of the plaintiff/petitioner was Civil Revision No. 6844 of 2006 -10- pointed out in view of the violation of the terms of the agreement, which were merely contractual, whereas on the other hand it was for the defendant/respondent to show that transfer by the Society was not in violation of the statutory provisions of the Haryana Co-operative Societies Act, 1984. Section 89 of the Act provides that in absence of approval by the Registrar, the Society is not competent to transfer the land possessed by it. Prima facie, no approval was placed on record, rather in response to the letter written by the petitioner the Assistant Registrar, Co-operative Societies, disclosed that in the record of the Registrar office, the registered office of the Society was still situated at H. No. 305, Sector 11, Faridabad. The learned senior counsel for the respondent also contended, that the petitioner deserved to be non-suited, for the reasons that vide order dated 21.2.2006, the stay was declined to the petitioner. Subsequently, on an application moved by the petitioner, the parties were directed to maintain the status quo, which was subsequently vacated as the application moved by the petitioner, was allowed to be withdrawn. The contention of the learned senior counsel for the respondent was, that the order of status quo was obtained by the petitioner by concealing the previous order, thus, she was not entitled to any discretionary relief by this Court. This plea cannot be accepted, firstly for the reason, that the interim order merges into the final order, and secondly, once on being pointed out, the petitioner was permitted to withdraw the application and Civil Revision No. 6844 of 2006 -11- this Court did not proceed any further to discuss reason on that ground, it is not open to the respondent now to raise this plea. This contention of the learned senior counsel also deserves to be noticed to be rejected. For the reasons stated, this revision is allowed, the order passed by the learned lower appellate Court is set aside and that of the learned trial Court is restored, but with no order as to costs. (Vinod K. Sharma) Judge February 17, 2010 R.S.