Abdul Wahid and Others vs Mohd. Aslam and Others

V.K. Jain, J.

I As 2818/2011 and 15380/2010 (both applications for exemption)

Allowed, subject to all just exceptions.

The applications stand disposed of.

CS(OS) No. 1449/2010

The facts giving rise to this suit have been detailed in the order of this Court dated 18.11.2010 which inter alia reads as under:

Property bearing No. 878, Haveli Azam Khan, Chitli Qabar, Delhi, measuring 120 Sq. yards was owned by late Mohd. Mian. On his death, this property devolved on his two sons namely Mehmood Mian and Ahmad Mian. The case of the Plaintiffs is that their predecessor in interest Abdul Waheed was inducted as a tenant by Mehmood Mian in June, 1987 in the first floor for the aforesaid property and later on, late Sh. Mehmood Mian entered into an agreement to sell of first floor of the property to Abdul Waheed and Fakhra Sultana for a sale consideration of Rs. 48,000/-, on 08.08.1987.

A civil suit seeking injunction against transfer of first floor premises of the aforesaid house was filed by 4 sons of Ahmad Mian against Mehmood Mian. The fifth son of Ahmad Mian, namely, Khurseed Ahmad was imp leaded as Defendant No. 1 in that suit. An order for maintenance of status quo in respect of the suit property was passed by the Civil Court in that case on 30.10.1987. However, Sh. Mehmood Mian in violation of the status quo order dated 30.10.1987 executed a sale deed in respect of the first floor, in favour of Abdul Waheed and Fakhra Sultana, predecessor in interest of Plaintiffs before this Court on 06.11.1987.

The case of the Plaintiffs before this Court is that they were already in possession, Abdul Waheed being a tenant under Sh. Mehmood Mian when the sale deed was executed. The case of the Plaintiffs before the learned Addl. District Judge, however, was that possession of the first floor was handed over to them by Sh. Mehmood Mian on 31.10.1987. After execution of the sale deed in favour of the parents of the Plaintiffs before this Court, the plaint was amended and the name of Mehmood Mian was struck off of the array of parties.

Vide judgment dated 26.11.2006, the learned Addl. District Judge took the view that the sale deed having been executed in violation of the status quo order passed by the Court, it was illegal and in unenforceable and did not confer any right, title or interest on the purchasers. The Court also rejected the plea taken by the purchasers that Abdul Waheed was a tenant in respect of the first floor and had come into possession of the same prior to passing of status quo order by the Court. A specific finding was given that they had got possession of the said property in violation of the status quo order, and therefore, the possession could not be recognized and had to be treated as illegal. The Court also took the view that it could order them to return possession which they had illegally obtained from Mehmood Mian during the pendency of the suit. The sale deed dated 06.11.1987 executed by Mehmood Mian in favour of parents of the Plaintiff before this Court was therefore declared illegal and ordered to be cancelled. Since the parents of the Plaintiffs before this Court had died during pendency of the suit before learned Addl. District Judge, their legal heirs were directed to hand over vacant physical possession of the first floor to the Plaintiffs in that suit within 30 days from the date of the order.

A perusal of the judgment of the learned Additional District Judge dated 13.11.2006 would show that the following issues were framed in the civil suit decided by him:

Whether the Plaintiffs have no locus standi to file the present suit? OPD.

Whether the suit is bad for non-joinder and mis-joinder of necessary parties as per preliminary objections No. 4? OPD.

Whether Plaintiffs have not valued the suit properly for the purpose of Court fee and jurisdiction? Onus on parties.

Whether the sale deed dated 6.11.87 executed by Mahmood Mian in favour of Defendants No. 2 and 3 in respect of property No. 878, Gali Masjid Anarwali, Bazar Chitli Kabar, Haveli Azqam Khan, Jama Masjid Anarwali, Bazar Chitli Kabar, Haveli Azam Khan, Jama Masjid, Delhi is illegal, void and ineffective. If so, its effect? OPD.

Whether the Plaintiffs are entitled to decree of possession by preemption or on payment of such sum as the Court deem to be fit to the abovementioned property? OPP.

Whether the Plaintiffs are entitled to relief of possession as prayed for, with respect to suit property? OPP.

Whether the Plaintiffs are entitled to decree of perpetual injunction as prayed for? OPP.

Whether the suit in its present form is maintainable? OPP.

Relief.

It further shows that while deciding issue No. 4 with respect to the sale deed dated 6.11.1987, the learned Additional District Judge took the view that the sale deed executed by Mehmood Mian on 6.11.1987 was in violation of the Court order dated 30.10.1987, directing maintenance of status quo and was hit by the principles of lis pendency and, therefore, did not confer any right and title on the vendees.

Thus, there was no finding as to whether any Agreement to Sell was executed by late Mehmood Mian on 08.08.1987 or not. There was no finding that late Shri Mehmood Mian was not competent in law to enter into the aforesaid agreement or to execute a sale deed in favour of Abdul Waheed and Fakhra Sultan, predecessor-in-interest of the Plaintiffs before this Court. The learned Additional District Judge decided issue No. 4 in favour of the Plaintiffs before him solely on account of the fact that the sale deed had been executed during pendency of this suit before him and in violation of the status quo order passed by him. Hence, it is difficult to say that the suit is barred by the principles of res judicata.

The learned Counsel for the Defendants placing reliance on Explanation III & IV to Section 11 of the CPC contends that the Agreement to Sell dated 08.08.1987 ought to have been relied upon by the predecessor-in-interest of the Plaintiffs before this Court and, therefore, the validity of the Agreement to Sell as also the competence of Shri Mehmood Mian to execute the sale deed are also deemed to have been adjudicated in the previously decided suit.

Explanations III & IV to Section 11 of the CPC read as under:

Explanation III - The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV - Any matter which might and ought to have been made ground of defiance or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

I find no merit in the contention of learned Counsel for the Defendants. Admittedly, sale deed in favour of Abdul Waheed and Fakhra Sultan had been executed much before they filed written statement in the aforesaid suit. Since the sale deed in their favour had already been executed, there was no need or occasion for them to rely upon the Agreement to Sell dated 08.08.1987. They referred to the sale deed executed in their favour and also defended the validity of the document, in the written statement which they filed in the suit. No issue was framed by the Court with respect to execution of Agreement to Sell dated 08.08.1987 or legal competence of late Shri Mehmmod Mian to enter into such an agreement. Therefore, neither Explanation 3 nor Explanation 4 applies to the facts of the present case. The issue is decided against the Defendants and in favour of the Plaintiffs.

The learned Counsel for the Defendants requests that an additional issue may be framed as regards plea of limitation taken by him. Accordingly, the following additional issue is framed on the pleadings of the parties:

Whether the suit is within limitation? OPP.

The affidavit by way of evidence be filed within four weeks.

Mr. Rajiv K. Garg, learned Counsel for the Plaintiffs, undertakes to complete the remaining admission/denial of the documents on next date of hearing before the Joint Registrar.

The matter be listed before the Joint Registrar on 18th April, 2011 for completing admission/denial of the documents and fixing dates for cross-examination of witnesses of Plaintiffs.