RSA No. 4299 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No. 4299 of 2010 (O&M) Date of decision : 3.8.2011 ... Smt. Seema Rajput and another ................Appellants vs. A.K. Sharma and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. M.S. Khaira, Senior Advocate with Sh. Dharmender Singh, Advocate for the appellants Sh. Akshay Bhan, Advocate for respondent No.1. Sh. J.S. Lalli, Advocate for respondent No.2. ... K.C. Puri, J. Challenge in the present appeal is to the judgment and decree dated 21.4.2010 passed by Dr. Bharat Bhushan Parsoon, District Judge, Faridabad, vide which the appeal preferred by the defendant- appellants against the judgment and decree dated 30.5.2008 passed by Sh. Rajender Pal Singh, Civil Judge (Junior Division), Faridabad, was dismissed. A.K. Sharma filed suit for declaration and mandatory injunction against the present defendant-appellants, Sham Sunder, Surjeet Singh Bindra and HUDA, with the allegation that plaintiff is RSA No. 4299 of 2010 -2- owner in possession of the plot in question and defendants No. 1 to 4 have nothing to do with the same and the transfer of plot on 3.10.1994 in favour of defendant No.1 on the basis of affidavit dated 26.9.1994 and application purported to have been submitted by him and subsequent transfers on 26.11.1994 and 29.5.1995 in favour of defendants No. 2 and 3 and 4 respectively, are null, void and not binding on the rights of the plaintiff. Plaintiff has further sought the consequential relief of mandatory injunction for directing the defendant No.5 to re-enter the name of plaintiff as the actual owner in possession of the property in question. It is pleaded by the plaintiff that residential plot No. 1024, Sector 37, Faridabad, measuring 250 Sq.Yards was allotted to the plaintiff vide letter dated 18.2.1974 at the sale price of Rs.17,500/-. The said price was paid vide receipt No. 177 dated 15.2.1974 after completing all formalities. It is further pleaded that plaintiff was residing in House No. D-1172, Sector 7, Faridabad and thereafter, he shifted to Delhi in 1976 and sent due intimation in this regard to the office of defendant No.5. Plaintiff is 59 years of age and for the purpose of raising construction on the said plot, he wrote letter dated 17.3.1997 to defendant No.5 for execution of conveyance deed and he was shocked to know that the plot in question had been transferred three times to three different parties. It was further revealed that on 26.9.1994, someone posing to be the plaintiff made an application for seeking permission to transfer the said plot in favour of defendant No.1 whereas plaintiff had never any dealing with defendant No.1 and the affidavit dated 26.7.1994, which is allegedly moved by the RSA No. 4299 of 2010 -3- plaintiff, is a forged document. It is further alleged that Sham Sunder defendant No.1 after obtaining the plot, applied for further transfer of plot on 3.10.1994 and on the basis of said application, the plot was permitted to be transferred on 26.11.1994 in favour of defendant No.2. Thereafter, defendant No.2 requested for transfer in favour of defendants No. 3 and 4, which was transferred in their name on 29.5.1995. The FIR under Sections 420/467/468/471 IPC was registered at Police Station Central, Faridabad. It is pleaded that transfers must have taken place with the help of some unscrupulous element working in HUDA without the plaintiff having appeared or submitted any document. Hence the transfer of plot in favour of defendant No.1 and subsequent transfers are sham, void and not binding on the rights of the plaintiff. On put to notice, defendant No.1 filed the written statement controverting the assertions made therein. He took the preliminary objections that the suit of the plaintiff is not maintainable as the answering defendant No.1 is the bona fide purchaser; that the plaintiff has no cause of action or locus standi to file the suit, that the suit is bad for concealment of material facts and that the suit is not properly valued. On merits, it was stated that he purchased the plot in question from open market through property dealers and HUDA defendant No.5 granted permission to the plaintiff to transfer the said plot in favour of answering defendant and he became absolute owner of the said plot. Thereafter, he sold the plot to defendant No.2, who further sold the plot to defendants No. 3 and 4. All these transfers were allowed by defendant No.5 after being satisfied regarding the transfer RSA No. 4299 of 2010 -4- papers. It is further stated that rules of defendant No.5 are very strict and every allottee of a plot of HUDA is supposed to raise construction within one year and thereafter regular extension fee is charged. The allegation that plot was transferred on the basis of forged documents by some impostor, is wrong. Defendants No. 3 and 4 filed written statement controverting the assertions made therein. They took preliminary objections to the effect that the suit is not maintainable as the answering defendants are bona fide purchaser and have spent lakhs of rupees on construction after getting sanctioned the site plan from HUDA. On merits, it is stated as wrong that plaintiff only on 18.3.1997 came to know that the plot in question was transferred three times to three different persons. Defendants No. 3 and 4 have also filed counter claim that they have spent more than Rs.10 lacs on construction. So, they have sought injunction against the plaintiff and defendant No.1. Defendant No.5 – HUDA also filed the written statement controverting assertions made in the plaint. It took preliminary objections that jurisdiction of Civil Court is barred under Section 50 (2) of HUDA Act, 1977; that the suit is bad for mis-joinder of parties. On merits, it is submitted that the plot in question was allotted to plaintiff. But other averments were denied. It is pleaded that plot was rightly transferred in favour of defendant No.1 on 3.10.1994 and in favour of defendant No.2 on 25.11.1994 and in favour of defendants No. 3 and 4 on 29.5.1995. Replication was filed controverting the assertions made in the written statement and reiterating the stand taken in the plaint. RSA No. 4299 of 2010 -5- From the pleadings of the parties, following issues were framed:- 1) Whether the transfer of plot dated 3.10.1994 in favour of defendant No.1 is null and void and not binding on the plaintiff? OPP 2) Whether the subsequent transfers of the plot in favour of the defendants are wrong and illegal and not binding on the plaintiff? OPP 3) Whether the plaintiff is the owner of the plot and entitle for mandatory injunction against the HUDA, if so, to what effect? OPP 4) Whether the suit is not maintainable in the present form? OPD 5) Whether the plaintiff has no locus-standi and cause of action to file the present suit? OPD 6) Whether the defendants No. 3 and 4 are entitled for injunction on the basis of counter claim? OPD 7) Relief. The plaintiff, in order to prove his case examined PW-1 HC Ram Pal, PW-2 Inder Sain, Criminal Ahlmad. He himself appeared as PW-3. On the other hand, defendant No.1 Sham Sunder examined himself as DW-1, DW-2 Romesh Rajput – defendant No.3, DW-3 C.P. Pandey and placed reliance upon certain documents and closed the evidence. Learned trial Court has taken up issues No. 1, 2 and 3 RSA No. 4299 of 2010 -6- together and returned the finding on all these issues in favour of the plaintiff and against the defendants. Issues No. 4 to 6 were also decided against the defendants and in favour of the plaintiff. In view of the findings on the issues, the suit of the plaintiff was decreed. Feeling dissatisfied with the judgment dated 30.5.2008 passed by Sh. Rajinder Pal Singh, Civil Judge (Junior Division), Faridabad, vide which the suit of the plaintiff was decreed, the present defendant-appellants preferred the Ist appeal. The said appeal was dismissed vide judgment dated 21.4.2010 passed by Sh. Bharat Bhushan Parsoon, District Judge, Faridabad. Feeling dissatisfied with the judgment and decree dated 21.4.2010 and judgment and decree dated 30.5.2008, referred to above, defendants No.3 and 4, appellants herein, have preferred the present appeal. The appellants in paragraph No. 10 of the grounds of appeal have mentioned that the following substantial questions of law have arisen in the present appeal, for consideration:- (i)Whether the judgment and decree passed by the Courts below are perverse? (ii)Whether the judgment and decree of the Courts below are liable to be set aside as appropriate issues have not been framed on the basis of pleadings of the parties? (iii)Whether the appellants are entitled to protect their interest and possession in the property being bona fide purchasers? (iv)Whether the suit filed by the plaintiff seeking declaration only is maintainable when admittedly he is not in RSA No. 4299 of 2010 -7- possession of the suit property? (v)Whether the findings recorded by the Courts below are result of mis-reading of evidence? However, during the course of arguments, Sh. M.S. Khaira, Senior Advocate for the appellants has not challenged the findings of both the Courts below, vide which the transfers in favour of defendants No. 1 to 4 have been held invalid. The only contention raised by counsel for the appellants was in respect of the prayer that HUDA be directed to allot an alternative plot in view of judgment reported as Dr Vijay Gupta vs. Delhi Development Authority and another 2008 (10) A.D. (Delhi) 253. It is contended that in this case it has been held that where the department allowed the transfer in favour of a person who is not legally entitled and he has spent huge amount in that case, the housing authority should provide a separate plot to compensate him. So far as argument advanced by counsel for the appellants is concerned, in my view, the same cannot be accepted in the present proceedings. This is a suit filed by A.K. Sharma, claiming his ownership in respect of the plot which was dully allotted to him, for which payment has been made by him to HUDA. There is a finding of fact recorded by both the Courts below that subsequent transfers in favour of defendant No. 1, defendant No.2 and thereafter in favour of defendants No. 3 and 4, who are appellants, are illegal, void, against the rights of the plaintiff. Both the Courts below have given categoric finding that fraud has been committed upon the plaintiff. The Hon’ble Apex Court in authority reported as Santosh vs. Jagat Ram and RSA No. 4299 of 2010 -8- another 2010 (2) RCR (Civil) 206, has held that a decree obtained by fraud is nullity, fraud puts to an end to everything. It has been further laid down that decree based on the fraud is nothing but nullity. In the present case, the sale transaction alleged to be made by the plaintiff in favour of defendant No.1 has been held to be a result of fraud. Since defendant No.1 has no title in the property, so the subsequent transfer by defendant No.1 and thereafter by defendant No.2 in favour of defendants No. 3 and 4 i.e. appellants does not confirm any legal right upon them. It is also not disputed that defendants No. 1 and 2 have been convicted by the criminal court for committing forgery in respect of sale deed being a result of impersonation. So, having realized the fact that there is concurrent finding of fact recorded by both the Courts below, that alleged sale deed by plaintiff in favour of defendant No.1 is the result of fraud, counsel for the appellants has not challenged the findings of the Courts below. Otherwise also, the concurrent finding of fact recorded by both the Courts below that sale deed by plaintiff in favour of defendant No.1 is a result of fraud, cannot be challenged in the second appeal. So far as the submission made by counsel for the appellants to the effect that HUDA be directed to allot alternative plot, is concerned, that relief cannot be granted to the appellants in the present lis. The authority in Dr Vijay Gupta’s case (Supra), relates to filing of writ petition against the D.D.A., Delhi. The appellants have not filed interpleader suit against HUDA. No relief for allotment of alternative plot has been sought and as such the RSA No. 4299 of 2010 -9- appellants cannot derive benefit of the authority in Dr Vijay Gupta’s case (Supra). In view of the above discussion, the substantial questions raised by the counsel for the appellants stand determined against the appellants. So, appeal is without any merit and the same stands dismissed. A copy of the judgment be sent to the trial Court for strict compliance. ( K.C. Puri ) 3.8.2011 Judge chugh