Adbul Wahid and Others vs Mohd. Aslam and Others

V.K. Jain, J.

IA 9385/2010 & 14931/2010 in CS(OS) 1449/2010

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 impleaded 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.

An objection was taken by the Defendants before the Civil Court that the suit before it was bad for nonjoinder of the legal heirs of Mehmood Mian, since his wife was alive at the time of his death. The issue was, however, decided against them holding that as per Muslim Law, on death of a Muslim male, his estate, in the absence of his own children, is inherited by his nephew. The learned Additional District Judge also held that the sale made by Mehmood Mian in favour of Abdul Waheed and Fakhra Sultana was hit by Section 52 of Property of Transfer Act and was null and void even if they had purchased the property in good faith, without notice of litigation or stay order.

An appeal filed by Abdul Wahid, Plaintiff No. 1 before this Court being RFA No. 80/2007 was dismissed by this Court on 20th April, 2010. The Court while dismissing the appeal, rejected the plea of Defendants No. 2 and 3 in the suit that they were in possession of the first floor as tenants since June, 1987. While dismissing the appeal filed by Abdul Wahid, this Court was of the view that estate of Mehmood Mian was adequately represented before the Civil Court and the suit did not abate despite his death and on account of non-impleadment of his wife after his death. This Court also was of the view that there was no requirement to implead Anis Fatima, wife of Mehmood Mian, as Defendant because she had no right or title in the suit property not had she dealt with it.

As a result of dismissal of the appeal filed by Abdul Wahid, the judgment and decree passed by the learned Addl. District Judge on 13.11.2006 has become final. The Special Leave Petition, which Abdul Wahid had filed against the order of this Court dismissing his appeal was dismissed as withdrawn. A copy of the order of Supreme Court is on record.

Now vide this suit, the Plaintiffs have sought specific performance of the agreement dated 08.08.1987 alleged to have been executed by Mehmood Mian in favour of late Abdul Waheed and Farkha Sultana. They have also sought declaration that they are entitled to ownership of half of the aforesaid property and are also tenants with respect to the first floor of the property. They have also sought injunction against their dispossession from the first floor premises. As an interim relief, the Plaintiffs are seeking stay of their dispossession from the first floor premises during pendency of this suit.

Learned Counsel for the Plaintiff was asked as to how the suit filed by the Plaintiffs is within limitation. His contention is that since sale deed had already been executed in favour of his parents by late Mohd. Mian, there was no occasion for him to file a suit for specific performance of the agreement dated 08.08.1987. He further states that the present suit was not filed earlier since the appeal filed by Abdul Wahid was pending before this Court.

Article 54 of the Limitation Act which governs the suit for specific performance of a contract provides the period of three years from the date fixed for the performance of the contract or if no such date is fixed, when the Plaintiff has noticed that performance is refused, as the period for filing a suit in which specific performance of a contract is sought. The sale deed in favour of the parents of the Plaintiff was cancelled vide judgment and decree dated 30.11.2006. The Plaintiffs knew it very well that the opposite party i.e. Plaintiffs in the civil suit decreed by the learned Addl. District Judge were denying the agreement to sell executed by late Sh. Mohd. Mian in favour of their parents. Therefore, it cannot be said that the Plaintiffs before this Court did not know that the legal heirs of late Sh. Mohd. Mian had refused to perform the agreement dated 08.08.1987. Despite that, the suit for specific performance of the agreement dated 08.08.1987 was not filed even within three years from the date on which the suit was filed before learned District Judge and the sale deed executed in favour of the parents of the Plaintiff before this Court was cancelled. The contention of the learned Counsel for the Defendant is that the pendency of the appeal would not have come in the way of Plaintiffs� filing a suit for specific performance of the contract dated 08.08.1987 when they were fully aware that the legal heirs of late Sh. Mohd. Mian had already denied the agreement in favour of their parents and had also obtained a decree not only for cancellation of a sale deed executed in favour of their parents but also for handing over the possession of the first floor premises to them. However, I need not go further into the issue of limitation at this stage, since I am of the view that even if the period of limitation did not start till the appeal filed by Abdul Wahid was dismissed by this Court, the Plaintiffs before this Court are not entitled to the interim injunction sought by him.

The Plaintiffs have already suffered a decree for possession and they are liable to be dispossessed from the first floor of the suit property in execution of the decree passed against them. It was open to them to claim before the Learned Addl. District Judge that their possession is protected u/s 53A of Transfer of Property Act, and therefore decree for possession ought not to be passed against them. However, no such plea appears to have been taken and the facts remains that a decree directing the Plaintiffs before this Court to hand over the possession of first floor premises to the Defendants before this Court, who were Plaintiffs/decree holders before learned Addl. District Judge, has already been passed. The plea taken by the Plaintiffs in this suit is that they are tenants in respect of the first floor of this house, their predecessor Abdul Waheed, S/o Abdul Majid, having been inducted as tenant in June, 1987 and possession having been given to him at the time of indicting him as a tenant at the rent of Rs. 60 p.m. This plea has been rejected by the learned Additional District Judge, who came to the conclusion that late Mehmood Mian parted with possession of the first floor premises on 31st October, 1987 in violation of the status quo order passed by this Court on 30th October, 1987. The learned Additional District Judge also came to the conclusion that a sale deed executed in favour of Abdul Wahid and Fakhra Sultana was illegal and void having been executed in violation of the order of status quo passed by the Court. This finding, rendered after trial and affirmed by this Court in appeal has become final and cannot be re-agitated in the present suit. The Plaintiffs, therefore, cannot be allowed to retain possession which has been found to be illegal and thereby frustrate the decree passed by the learned Additional District Judge for dispossessing from the said premises.

This is not the case of the Plaintiff before this Court that though the agreement in favour of Abdul Waheed and Fakhra Sultana was executed on 08th August, 1987, the possession, pursuant to this agreement, was delivered to them on 31st October, 1987. Their case has been that Abdul Waheed was inducted as a tenant in June, 1987 and the possession of the first floor premises was given to him at that time. The stand taken by them has been found to be false by the learned Additional District Judge and the finding recorded by him has been affirmed by this Court. Hence, there is a strong probability of the agreement having ante-dated in collusion with Mehmood Mian, so as to make out a transaction on a date prior to 30th October, 1987, when the status quo order was passed by the Court. This is more so, when no payment prior to 30th October, 1987 has been alleged by way of a cheque/pay order/bank draft. In case the agreement was executed after passing of the status quo order on 30th October, 1987, the whole transaction, including the agreement itself, would be illegal and void being in contravention of the status quo order passed by the Court. The Plaintiffs, who have already enjoyed the fruits of an illegal possession for more than 23 years, cannot be allowed to perpetuate their unlawful possession by granting the injunction sought by them.

In my view, there is no prima facie case in favour of the Plaintiffs since their possession of the first floor premises has been found to be illegal and the sale deed executed in favour of their predecessors in interest had already been ordered to be cancelled. Their plea of being a tenant in respect of the first floor premises has also been negated by the learned Additional Judge. The appeal filed by the Abdul Wahid has already been dismissed by this Court and even the SLP filed by him against that order has been withdrawn by him. In case the Plaintiffs ultimately succeed in the suit, they can always seek possession from the Defendants in execution of the decree that may be passed in their favour.

I, therefore, see no justification for granting the injunction sought by the Plaintiffs against their dispossession from the first floor premises. Both the applications are dismissed.

CS(OS) 1449/2010

Documents in original be filed within four weeks. Parties to appear before Joint Registrar for admission/denial of the documents on 7th January, 2011 and before Court for framing of issues on 4th February, 2011.