CR No.433 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.433 of 2010 (O&M) DATE OF DECISION: 28.09.2010 **** Hatti Singh and another . . . . Petitioners VS. Rakesh Kumar and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Harsh Kinra, Advocate for the petitioners. Mr.Akshay Bhan, Advocate with Mr.Mahesh Goel, Advocate for respondent No.1. **** RAKESH KUMAR JAIN J. In this revision petition, the petitioners has challenged the order dated 14.10.2009 passed by Civil Judge (Senior Division), Panchkula by which application filed by the petitioners for restitution of possession of suit property has been dismissed. Before adverting to the main controversy, a few skeletal facts are necessary to explain the dispute between the parties which led to passing of the impugned order. Rakesh Kumar (plaintiff/respondent No.1) filed a Civil Suit No.91 on 21.1.1994 for specific performance of an agreement to sell dated 22.9.1993 executed by Dinesh Kumar (defendant No.1) through Arvind Kumar (defendant No.2) in respect of Kothi No.637-P, Sector 2, Panchkula (for short ‘property in dispute’) and had also impleaded Hatti Singh and CR No.433 of 2010 (O&M) -2- Jagtar Singh (petitioners herein), who alleged to have purchased the property in dispute vide registered sale deed dated 08.11.1993, purported to have been executed by respondents No.2 through respondent No.3 against a consideration of `1,95,000/-. The petitioners had claimed that they are owners in possession of the property in dispute since then which has been duly transferred in their names in the records of Haryana Urban Development Authority (for short ‘HUDA’). On the pleadings of the parties, various issues were framed by the trial Court including issue No.5B which reads as under: “5B. Whether the defendants No.3 and 4 are bonafide purchaser from defendants No.1 & 2 and their rights are protected u/s 41 of the Transfer of Property Act? OPD.” The learned trial Court, vide its judgment and decree dated 08.10.2007, partly decreed the suit of the plaintiff/respondent No.1. The decree reads as under: “It is ordered that the suit on behalf of the plaintiff is partly decreed with costs and the defendants No.1 and 2 are directed to pay a sum of `4 lacs to the plaintiff, alongwith interest @ 6% per annum from the date of filing the suit till realization of the said amount. Defendants No.1 and 2 shall be jointly and severally liable to pay the same.” Apparently, the learned trial Court did not grant decree for specific performance of the agreement to sell in view of the finding recorded in paras No.18 and 19 of its judgment which reads as under: CR No.433 of 2010 (O&M) -3- “18. Except the agreement to sell dated 22.9.1993 in favour of the plaintiff, as per the record of the HUDA, the ownership of the property was clear and there was no encumbrance. The ownership was with the defendant No.1. Thus when defendant No.1 through duly appointed general power of attorney, who finds mention in the record of the HUDA, executed a sale deed in favour of the defendants No.3 and 4, received consideration of `1,95,000/- and delivered the possession of the suit property, it cannot be said in any manner that the defendants No.3 and 4 were not bonafide purchasers of the suit property. The plaintiff himself by seeking possession of the suit property has falsified his stand regarding the suit property under lease upto the year 2002. Moreover, there is no proof on the part of the plaintiff that the applications sent to the HUDA authorities for transfer of the suit plot in favour of the plaintiff were made at the behest of the defendant No.1, whereas Ex.D1/2 (inadvertently exhibited as Ex.D1 because Ex.D1 has already been discussed, which is rent agreement), is a letter to from the Estate Officer, HUDA, Panchkula, to defendant No.2 granting permission to transfer the suit property in favour of Hatti Singh and Jagtar Singh in reference to the application made by Sh. Arvind Kumar himself on 28.4.1993. This letter is dated 6.10.1993 i.e. prior to the execution of the sale deed. Thus what more bonafides were required on the part of the defendants No.3 and 4 when prior to the execution of sale CR No.433 of 2010 (O&M) -4- deed in their favour, the HUDA had also given permission to the general power of attorney of defendant No.1 to transfer the suit property in favour of the defendants No.3 & 4. In fact this letter was a clear chit to the defendants No.3 and 4 that the suit property was free from encumbrances. The re- allotment letter in favour of the defendants No.3 and 4 from the Estate Officer, HUDA, Panchkula is Ex.D3 which is dated 19.11.1993. Accordingly, there remains no doubt that the defendants No.3 and 4 are bonafide purchasers of the suit property and issue No.5B is decided in favour of the defendants. 19. The plaintiff has not challenged the sale deed in favour of the defendants No.3 and 4 and hence he would not be entitled to the possession of the suit property. At the most as per alternative relief claimed by the plaintiff so that there is specific performance of the agreement dated 22.9.1993 in his favour, defendants No.1 and 2 shall compensate him in the sum of `4 lacs on which the plaintiff has affixed court fee, alongwith interest at the rate of 6% per annum. Issue No.1 is decided in favour of the plaintiff to this extent.” Aggrieved against the judgment and decree of the trial Court by which suit of the plaintiff/respondent No.1 was partly decreed, he filed First Appeal i.e. Civil Appeal No.128 of 2007, which was allowed by the Additional District Judge, Panchkula vide its judgment and decree dated CR No.433 of 2010 (O&M) -5- 05.12.2008 and the suit filed by the plaintiff/respondent No.1 was decreed as under: - “It is ordered that I accept this appeal and pass a decree in favour of the plaintiff and against the defendants for possession by way of specific performance of the agreement of sale. I direct the defendants to execute sale deed in favour of the plaintiff within two months from today failing which the plaintiff would be entitled to get the sale deed executed and registered through Court. I allow costs throughout to the plaintiff. The decree of the First appellate Court is based upon finding recorded in para No.17 which reads as under: - “17. Since the plaintiff was in possession of the house, defendant Nos.3 and 4 ought to have made enquiries from him (plaintiff) as to nature of his possession” It was further observed that “a person in possession is deemed to have some title or interest in the property and a prospective vendee is obliged to make a proper enquiry of the status of a person in possession and any lease agreement or deed executed by the owner in his favour. If the subsequent purchaser does not make a proper enquiry, he will be deemed to have notice of the existing affairs and he cannot claim himself to be bonafide purchaser”. Unsatisfied with the judgment and decree of the First Appellate Court, the petitioners had filed Regular Second Appeal No.334 of 2009 which was dismissed in limine by this Court on 21.4.2009. CR No.433 of 2010 (O&M) -6- The petitioners then filed Special Leave to Appeal (Civil) No.17918 of 2009 before the Supreme Court against the order of the High Court passed in RSA No.334 of 2009 in which following order was passed on 31.08.2009: “Issue notice. Mrs.Shally Bhassin Maheshwari, learned counsel accepts notice on behalf of respondent No.1.” Thereafter, on 16.12.2009, following order was passed by the Supreme Court:- “Respondent No.1 has appeared and filed vakalatnama. Counter affidavit, if any, shall be filed within four weeks. Issue fresh notice to respondents Nos.2 and 3 by Registered Post AD. List the matter on 27.01.2010.” Undisputedly, the aforesaid matter is still pending before the Apex Court. In fact, the genesis of the present dispute is the execution application filed by the plaintiff/respondent No.1 on 28.4.2009 in which the averments made, which is relevant for the purpose of this case, are as under: CR No.433 of 2010 (O&M) -7- “10. The mode in which the assistance of the Court is required, whether i) By way of directing the J.Ds to execute and register the sale deed in respect of the suit property and warrant of possession of the property be issued in favour of the D.H.s as the possession of the property were taken by the JD Nos.3 and 4 illegally and forcibly during the pendency of the litigation and warrant of attachment of the property of JDs be issued for recovery of the cost amount.” The prayer made in the execution application was also to the effect that “it is, therefore, respectfully prayed that the execution application may kindly be accepted and JDs may kindly be directed to execute and register the sale deed in respect of the suit property and warrant of possession of the property be issued in favour of the D.Hs as the possession of the property were taken by the JD Nos.3 and 4 illegally and forcibly during the pendency of the litigation”. On 15.06.2009, the learned Executing Court passed the following order: - “Notices issued to the JD No.3 received back served through wife, who refused to receive the notice. Service through wife is a complete service in the eyes of law. Despite repeated CR No.433 of 2010 (O&M) -8- calls since morning, none has appeared on behalf of the JD No.3. No request or intimation received. It is 12.00 Noon. Further wait is not justified. Hence, JD No.3 is hereby proceeded against ex parte. Heard. Perusal of the file shows that vide judgment dated 8.10.2007, the suit of the plaintiff was partly decreed and defendants No.1 and 2 were directed to pay a sum of `4 lacs to the plaintiff alongwith interest @6% per annum from the date of filing the suit till realization of the said amount. Aggrieved with the said judgment, plaintiff Rakesh Kumar went in appeal, which was accepted and a decree was passed in favour of the plaintiff and against the defendants for possession by way of specific performance of the agreement to sell and the defendants were directed to execute sale deed in favour of the plaintiff within two months from that day i.e. 5.12.2008, failing which the plaintiff would be entitled to get the sale deed executed and registered through Court. Against the said order, defendant Hatti Singh and Jagtar Singh went in appeal before the Hon’ble Punjab and Haryana High Court, which was dismissed vide order dated 21.4.2009. There is no record available on file to show as to whether any appeal was preferred against order dated 21.4.2009 by the JDs. Thus, order dated 5.12.2008 passed by the first appellate Court has attained finality. Accordingly, in compliance of decree dated 5.12.2008 Shri Sanjeev Khurana, Civil Nazir of this Court is appointed as Local Commissioner to get the CR No.433 of 2010 (O&M) -9- sale deed registered in favour of the DH. He shall give prior notice to the parties for their appearance before the Registrar concerned to get the sale deed registered. The fees of the local commission is fixed at `2000/-, which shall be payable by the DH exclusively. Come up for awaiting report of the local commission on 31.8.2009.” On 17.6.2009, the Local Commissioner, after execution of the sale deed, submitted his report which reads as under: - “The undersigned Sanjeev Khurana is working as Civil Nazir, in the office of District Courts, Panchkula. The undersigned was appointed as Local Commissioner by this Ld. Court vide order dated 15.6.2009 and was directed to visit the office of Sub-Registrar, Panchkula for getting the sale deed executed and register in favour of the Decree Holder in respect of the House No.637-P, Sector 2, Panchkula. As per the orders of this Ld. Court, the undersigned issued the notice to the Decree Holder on 16.6.2009 with the directions to come present in the office of Sub-Registrar, Panchkula on 17.9.2009 alongwith relevant documents to get the sale deed executed and registered in favour of the Decree Holder. On 17.6.2009, the undersigned visited the office of Sub Registrar, Panchkula and the Decree Holder also visited the Sub Registrar, Panchkula at the relevant time. The undersigned executed and registered the sale deed in favour of the Decree Holder as per the direction of this Ld. Court. Certified CR No.433 of 2010 (O&M) -10- copy of sale deed dated 17.6.2009 is attached herewith. Hence, this report. Sd/- (Sanjeev Khurana) Civil Nazir, District Courts, Panchkula.” On 20.6.2009, the plaintiff/respondent No.1 filed an application for issuance of warrant of possession in which following order was passed: “That the above noted execution application is pending before this Ld.Court and is fixed for 31.8.2009 for the report of the Civil Nazir. That the Civil Nazir, Panchkula has executed the Sale deed on 17.6.2009 in favour of the decree holder as per direction of this Ld. Court. That now the Decree Holder has become the owner of the suit property but the physical possession of the property is still with the J.D.Nos.3 and 4. The J.D. Nos. 3 and 4 are also having the knowledge about the execution and registration of the sale deed in favour of the Decree Holder and in order to defeat the right of the Decree Holder, they are threatening to hand over the physical possession of the suit property to some other persons for which they have got no right, title or interest to do so. That the J.D.Nos. 3 and 4 are threatening to handover the possession to some other persons which resulted into multiplicity of litigation and in order to save the interest, CR No.433 of 2010 (O&M) -11- there is urgency to put the case file during summer vacations and the warrant of possession of the suit property be issued and vacant and physical possession of the suit property be handed over to the Decree Holder. It is, therefore, prayed that the application of the Decree Holder may kindly be accepted and the case file may kindly be put for today and warrant of possession of the House No.637-P, Sector 2, Panchkula may kindly be ordered to be issued, in the interest of issued.” On 16.7.2009, the learned Executing Court passed the order for issuance of warrant of possession. The order reads as under: - “File taken up today on the application moved on behalf of the DH on 22.6.2009 for issuance of warrant of possession. Heard. Report of the Local Commissioner perused. Application is allowed and warrant of possession be issued directing the Bailiff of the Court to put the DH in possession of the suit property. Report of the Bailiff be awaited for date already fixed i.e. 31.8.2009. DH is directed to accompany the bailiff at the time of execution of the warrant of possession. Necessary expenses be filed within four days.” After the possession of the property in dispute was taken over from the petitioners, they filed an application dated 31.8.2009 for restitution of possession which was contested by the plaintiff/respondent No.1 by CR No.433 of 2010 (O&M) -12- filing his reply dated 10.09.2009 and the said application has been dismissed by the learned Executing Court vide its impugned order dated 14.10.2009. After narrating the history of this case, it would be worthwhile to refer to the finding of the learned Court below on the basis of which application for restitution of possession filed by the petitioners has been rejected. The relevant finding reads as under: - “From the careful perusal and judgment dated 5.12.2008 of learned ADJ, Panchkula, I have no hesitation in holding that plaintiff was found to be in possession of suit property not only at the time when agreement to sell was executed between plaintiff and defendant No.1 through defendant No.2 but was also found to be in possession when the judgment dated 5.12.08 came to be passed by the learned ADJ, Panchkula. Had plaintiff been not found in possession, there would have been specific finding in this regard because the applicants/JD No.3 and 4 had taken the objection that they were in possession of suit property as bonafide purchaser but learned ADJ was of the firm opinion that it was plaintiff who was already in possession on the basis of registered lease deed when agreement came into existence. Applicants/JD No.3 and 4 were never found in possession in suit property at any stage. In these circumstances, I seen no reason to disbelieve plaintiff/DH that possession has been taken from plaintiff illegally and forcibly by applicants/JD Nos.3 and 4 during the litigation.” CR No.433 of 2010 (O&M) -13- Thus, it is held by learned Executing Court in the impugned order that the plaintiff/respondent No.1 was in possession of the property in dispute not only at the time of agreement to sell dated 22.9.1993 but also when the judgment was passed by the learned First Appellate Court on 05.12.2008. Learned counsel for the petitioner, while assailing the impugned order has, inter alia, submitted that the plaintiff/respondent No.1 has misrepresented the facts before the Courts below and has played a calculated fraud in obtaining an order for the purpose of getting possession of the property in dispute. It is alleged that there was no prayer for possession in the entire litigation by the plaintiff/respondent No.1 and as such warrant of possession could not have been issued by the learned Executing Court as it would be contrary to the provisions of Section 22 of the Specific Relief Act, 1963. Secondly, it is submitted that there is no material on record produced by plaintiff/respondent No.1 to even prima facie prove their forcible dispossession at the hands of the petitioners nor any date is given on which they were alleged to have been dispossessed. Thirdly, the Executing Court had erred in not following the provisions of Order 21 Rule 34 of the Code of Civil Procedure, 1908 (for short ‘CPC’) as the plaintiff/respondent No.1 did not append draft sale deed with the application and as such there was no occasion with the petitioners to file objection to the draft sale deed and finally that no notice was issued to the petitioners before issuance of warrant of possession. Besides these grounds, learned counsel for the petitioners has also submitted that plaintiff/respondent No.1 has played a calculated fraud in pursuance of obtaining possession in execution because he cleverly avoided to disclose before the Executing Court about the date on which he CR No.433 of 2010 (O&M) -14- was alleged to have been dispossessed forcibly and illegally by the petitioners. But the truth always prevails because he had disclosed the date of his dispossession in reply to the Special Leave to Appeal in which he has averred that “it is also pertinent to mention that it was some time in the year 2001 that the petitioners being unlawful and roudy element forcibly and illegally wrested possession of the suit property from the answering respondent”. The plaintiff/respondent No.1 also averred in para No.9 of the replication dated 12.02.2002 filed to the written statement that “that para No.9 of the written statement is totally wrong and denied and the said sale deed in favour of the answering defendants is not valid and liable to be cancelled and plaintiff is in possession of the Kothi and it is not understanding that how the answering defendants came into the possession of the said Kothi. Para No.9 of the plaint is correct and reasserted”. On the other hand, learned counsel for the plaintiff/respondent No.1 has submitted that since the petitioners have not challenged the order dated 16.7.2009 by which possession has been delivered to the plaintiff/respondent No.1, therefore, the application filed for restitution of possession on 31.08.2009 was not competent. Secondly, finding of the First Appellate Court recorded in para No.17, which are highlighted by the petitioners cannot be read in isolation because the reason for recording finding in para No.17 is assigned by the First Appellate Court in para No.16 of its judgment. It is submitted that one of the petitioners namely, Hatti Singh had earlier filed suit for injunction in year 1990 in which he had alleged that property in dispute was purchased by his brother Jagtar Singh from his earlier owner namely, Janki Devi on 26.8.1989 and as such there CR No.433 of 2010 (O&M) -15- was no necessity for both the petitioners to have purchased the property in dispute again from respondent no.2. He has also submitted that in a case where suit for specific performance is decreed, prayer for possession would follow as a necessary corollary because otherwise the document of sale would be rendered only a paper transaction. However, learned counsel for the plaintiff/respondent No.1 has clearly admitted the averments made in reply to the SLP in which it was alleged that the possession was taken by the petitioners forcibly in the year 2001. I have heard both the learned counsel for the parties and have carefully scrutinized the available record. In this case, the primary question is as to whether the plaintiff/respondent No.1 has misled the Court by making false averments in the execution application for the purpose of obtaining possession of the disputed property and whether this Court in exercise of its jurisdiction under Article 227 of the Constitution of India can order the plaintiff/respondent No.1 to restore status quo ante if possession is found to have been obtained by the plaintiff/respondent No.1 by misrepresentation and fraud. The resume of the facts which have been narrated hereinabove, would show that the trial Court did not grant decree of possession to the plaintiff/respondent No.1. The First Appellate Court, however, granted the decree for the purpose of execution of the sale deed because it had found the plaintiff/respondent No.1 to be already in possession. The validity of the judgment of the First Appellate Court is under adjudication before the Apex Court. The execution application has been filed not in terms of Section 22 of the Specific Relief Act, 1963 but on the ground that the possession has been taken forcibly by the petitioners CR No.433 of 2010 (O&M) -16- from plaintiff/respondent No.1 during the pendency of the litigation, however, nothing has been mentioned about the date on which the plaintiff/respondent No.1 was allegedly dispossessed. The turn of events after filing of the execution has its own story to tell namely, (i) on 15.6.2009, the Executing Court had appointed Sanjeev Khurana, Civil Nazir for the purpose of registration of the sale deed. In the said order, petitioner No.1 was shown to have been served through his wife and proceeded against ex parte. The case was adjourned for waiting the report of the Local Commissioner on 31.8.2009; (ii) On the very next date i.e. 16.6.2009, the Local Commissioner allegedly issued a notice to the decree holder/plaintiff/respondent No.1. In the order dated 15.6.2009, it was clearly mentioned that the Local Commissioner shall give prior notice to the parties for their appearance before the Registrar concerned and the parties would not mean decree holder/plaintiff/respondent No.1 alone but also parties to the lis. Anyhow, on 17.6.2009, sale deed was executed and report was submitted; (iii) Although, vide order dated 15.6.2009, the case was adjourned to 31.8.2009 yet on 20.6.2009 plaintiff/respondent No.1/decree holder made an application for issuance of warrant of possession; (iv) The learned Executing Court took up the file on 16.7.2009, before actual date of hearing i.e. 31.8.2009 and issued warrant of possession directing the Bailiff of the Court to put decree-holder in possession of the suit property. Admittedly, the possession was taken from the petitioners by the plaintiff/respondent No.1 through Bailiff with a posse of Police; (v) On 31.8.2009, when the case was actually fixed, the present application for restitution was filed by the petitioners. Actually, the learned Executing Court has swayed with