Shakuntala Yadav vs Yadvinder Singh

V.K. Bali, J.

Shakuntla Yadav widow of Lal Singh, the original owner of part of the land in dispute along with her major amd minor sons, namely, Bharat Singh Yadav, Vineet Yadav and Sharad Yadav has taken a strong exception to a decree dated 29.10.1990, said to have been passed by Shri A.D. Gaur, SubJudge IIIrd Class, Gurgaon in case No. 1588 of 1990 vide which the land, fully described in paras 1 and 2 of the plaint, was transferred in favour of Yadvinder Singh son of Randhir Singh. The total land described in paras 1 and 2 measuring 116 kanals 11 marlas, is detailed below :

"22 Kanals 2 marlas situated within the revenue estate of village Sarhaul, Tehsil and District Gurgaon entered in Rect. No. 18, Killa Nos. 1(516), 2(1 9), Rect. No. 23, Killa No. 8/1(010), Rect. No. 19, Killa No. 6/1/2(211), Rect. No. 23, Killa Nos. 8/2(01), 9/2(518), 10/1(20), 12/2(25) and 13/1(112). Plaintiffs 1 to 4 inherited this land in equal shares (1/4th each) on demise of Lal Singh, who breathed his last on January 25, 1991.

41 Kanals 2 marlas entered in Rect.. No. 18, Killa Nos. 8(416), 9(7.18), 10(80), 13/2(64), 27(80), 18/1(64) owned by plaintiff Shakuntla Yadav.

18 Kanals 19 marlas entered in Rect. No. 17, Killa Nos. 11(05), 20(710). Rect. No. 18, Killa Nos. 15(34), 16(80) owned by Bharat Singh;

34 Kanals 8 marlas entered in Rect. No. 17, Killa No. 21/1(44), Rect. No. 18, Killa No. 25(80), Rect. No. 35, Killa Nos. 5(80), 6/1(111), Rect. No. 36, Killa No. 1(80) and 10/1(413), owned by Vineet Yadav."

The suit for declaration that the decree obtained by defendant Yadvinder Singh was an outcome of fraud and deceit on the grounds that shall be fully detailed later, came to be instituted before the Vacation Judge on July 6, 1991. Accompanied with the suit was an application for entertaining the suit during vacation. It requires to be mentioned here that during summer vacation in the trial courts, insofar as civil work is concerned, the same comes to a grinding halt. There is no vacation Bench to deal with the regular civil suits and only emergent criminal work is transacted. It was, inter alia, mentioned in the application aforesaid that on the basis of fraudulent decree dated October, 29, 1990, the defendant was threatening to dispossess the plaintiffs. He was also trying to lease out the land in dispute and to create encumbrances over it and was even planning to alienate the same to the third parties. In case the defendant was to succeed in his endeavour to alienate the property, the plaintiffs would suffer an irreparable loss. The plaintiffs during the lis, sought for an injunction against the defendant as well and for that precise reason maintained an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure. It appears that the Additional District Judge entertained the suit as a vacation Judge considering it to be an urgent matter as would be clear from his interim order dated July 6, 1991 which reads thus :

"This suit is entertained during vacation as it involves urgent matter. Notice be issued to defendant for 5.8.1991 on process fee, copies. File be put up on that date before the learned Senior Sub Judge, Gurgaon.

Heard on the stay application. In view of allegations and documents on record, the defendant is restrained from alienating the suit property in any manner and from mortgaging or leasing out the same and from creating any encumbrances over it and both the parties are also directed to maintain status quo regarding possession of the suit property till further orders. Exparte injunction has been granted as the very purpose of filing the suit would be defeated if prior notice is issued to the defendant. Notice of stay application and stay order be issued to be defendant for the date fixed on process fee, copies. Compliance of Order 39 Rule 3 CPC be also made".

On the adjourned date, i.e., August 5, 1991, the suit was registered by the Sub Judge 1st Class, and adjourned to September 16, 1991. On the adjourned date, as none appeared on behalf of the defendants despite service, he was proceeded ex parte and the case was adjourned to October 12, 1991. The matter, however, could not be taken up on October 12, 1991 as the Presiding Officer was on leave. The order proceeding ex parte against the defendant was, however set aside being not Opposed by the counsel for the plaintiffs subject to payment of Rs. 30/ as costs vide order dated October 25, 1991. Meanwhile, learned Sub Judge Ist Class, Gurgaon, before whom application under Order 39 Rules 1 an 2 read with Section 151 of the Code of Civil Procedure came up for hearing, declined stay on October 29, 1992. Constrained, the plaintiffs carried an appeal against the order declining stay which came ultimately for decision before Shri A.S. Garg, District Judge, Gurgaon. The appeal preferred by the plaintiffs was dismissed by the District Judge on Jaunuary 23, 1993. Still being aggrieved, the plaintiffs carried a civil revision against the orders passed by the Sub Judge and on January 27, 1993 obtained stay with regard to alienation of the land in dispute. Further description of the progress of the civil suit shall be detailed later.

At a stage when Yadvinder Singh defendant in the civil suit referred to above as per the case of the plaintiffs with the help of government functionaries had sold or leased out part of the land and on the basis of the said sale deeds and lease deeds, the revenue officials were out to mutate the land in favour of the third parties, the plaintiffs filed Civil Writ Petition No. 2377 of 1993 in this court on March 4, 1993. It was, inter alia, pleaded in the writ aforesaid that the copy of the order of the District Judge dismissing the appeal of the plaintiffs arising from the order passed by the Sub Judge declining stay to the plaintiffs was made available and the plaintiffs approached this Court on January 27, 1993 and obtained permission of this Court for getting their Civil Revision No. 339 of 1993 fixed up on the same day before an Hon''ble Judge of this Court and after hearing the arguments, stay restraining respondents from alienating the property or creating an encumbrance over the property in dispute was granted. It has also been pleaded that the case file culminating into the impugned decree had been got misplaced by the defendant Yadvinder Singh. The counsel representing the respondents, who was watching the proceedings of the civil revision, appeared on January 28, 1993 was holiday in Haryana and on January 29, 1993 plaintiffs presented a copy of the stay at 9 a.m. to the TehsildarcumSub Registrar, Gurgaon and also to Patwari of the area. Despite that, Yadvinder Singh got the sale deeds of the property in dispute registered. These sale deeds were, however, got ante dated even though registered on 29th the date put on the sale deeds was January 27, 1993. As mentioned above, these were the circumstances that compelled the plaintiffs to file the writ petition aforesaid. The matter came up for hearing before the Division Bench of this court on March 5, 1993 when notice of motion was issued for March 19, 1993. Plaintiffs were asked to serve the respondents by Dasti Process. Status quo regarding possession over the property in dispute was ordered to be maintained. The matter was thereafter adjourned from time to time and after records of the case were complete, it came up for hearing before a Division Bench of this Court on October 11, 1993 when following order was passed :

"On going through the material on record, we consider it imperative to have before us, respondent No. 4. This respondent was served but he has chosen not to appear. In order to ensure his presence, we direct that bailable warrants be issued in the sum of Rs. 10,000/ to secure his presence for the next date of hearing. Mr. Yadav, DAG, Haryana, is directed to ensure that these warrants are executed before that date.

We further direct that no alienation of the land be made until further orders, and the alienations already made, after obtaining the impugned decree of the Civil Court, of October 29, 1990, shall not be operative till further orders.

Let the record of the case of suit 1588/90 pending in the court of Sub Judge III Class, Gurgaon, be also made available before us. To come up for further proceedings on October 21, 1993."

Justice S.S. Sodhi as he then was, on October 16, 1993, directed to District and Session Judge (Vigilance), Haryana, in the context of the allegations made in CWP 2377 of 1993 to enquire into the loss of the record of the civil suit filed by respondent No. 4 Yadvinder Singh in which a decree was granted in his favour by the trial court on October 29, 1990 and the reconstruction of the record and any other matter relevant in this context. District and Sessions Judge (V), Haryana was asked to visit Gurgaon to make an on the spot enquiry at an early date. Pursuant to an order referred to above, it appears from the records, that District Judge (V) Haryana sought permission to visit Gurgaon to make necessary enquiry on November 2, 1993. He sought permission to visit on 5th and 6th of November, 1993. Meanwhile, respondent No. 4 appeared and the case was thereafter adjourned on various dates and ultimately came up for hearing on December 16, 1993. It is recorded in the order of the said date by the Division Bench that District Judge (Vigilance), Haryana had made enquiry with regard to loss of the record of the civil suit and that the report had been received. Same was ordered to be placed on record. After perusing the record and also the enquiry report made by the District Judge (V), the Division Bench passed following order on December 14, 1993 :

"Keeping in view the extraordinary circumstances, as they emerge from the pleadings and more particularly, the enquiry report of the District and Sessions Judge (Vigilance), Haryana, of November 13, 1993, in the context also of the loss of the record of earlier civil suit and the inordinate delay that has occurred both in the proceedings before the trial court and in the enquiry, regarding the loss of the record of the earlier suit, we while admitting this writ petition to hearing also direct the withdrawal of the civil suit filed by the petitioner Smt. Shakuntla Yadav seeking a declaration that the decree of October 29, 1990 obtained by the respondents was illegal and null and void, to be taken up for trial on the original side of this court. The record of the suit be sent for immediately. We direct that it be put up for hearing in this Court on January 24, 1994.

We further direct that District Judge, Gurgaon, to have a report lodged with the police regarding the theft of the judicial record of the earlier Civil suit 1588 of 1990, Yadvinder Singh v. Lal Singh and others.

Let both the civil suit filed by petitioner and this writ petition be put up for hearing on January 24, 1994."

It is in view of the order, reproduced above, that I am seized of this civil suit which has to be decided along with the present writ petition.

The plaintiffs during the pendency of the suit were dispossessed. They obviously amended the plaint so as to seek relief of possession but at the same time filed contempt petition bearing No. 838 of 1993. Their grouse in the contempt petition referred to above, was that despite stay granted to them initially by the Civil Court and later by the High Court, they were dispossessed by defendant Yadvinder Singh and others with the connivance of Deputy Commissioner, Gurgaon, Tehsildar Gurgaon, Patwari of the area and Inspector/SHO, Police Station Sadar Gurgaon. Notice was issued in the contempt petition and the contesting respondents therein have filed their respective written statements. This contempt petition has also been ordered to be heard with the civil suit and civil writ petition referred to above. It is in these circumstances that civil suit bearing No. 386 of 1991, Civil Writ Petition 2377 of 1993 and contempt petition bearing No. 838 of 1993 are being taken together.

Before the matter may proceed any further, it requires to be mentioned that decision of the civil suit either way, shall seal the fate of the civil writ petition. It is conceded at all ends that in case the civil suit is decreed, mutation that came into being pursuant to the civil court decree, subject matter of challenge in the present suit, shall have to be set aside. Converse of that shall also be true, i.e., if the civil suit is dismissed, mutation sanctioned in favour of Yadvinder Singh, pursuant to impugned civil court decree, shall have to be sustained. While deciding civil suit, if a finding is to be returned that the plaintiffs were dispossessed on September 15, 1993 and Yadvinder Singh and lessee and vendees from him were not in possession, any time before the said date, i.e., September 15, 1993, the fate of contempt petition shall also stand sealed. However, pleadings of the parties and the respective stand taken by them in the contempt petition shall be discussed separately as well.

Having taken stock of the facts and circumstances under which the three matters, i.e., civil suit, writ petition and contempt petition, have come up for hearing before this court, it is now time to examine the pleadings of the parties and the evidence that has been led in support of the same.

Smt. Shakuntla Yadav widow of Shri Lal Singh, her three sons, namely, Bharat Singh Yadav, Vineet Yadav, and Sharad Yadav, who was minor at the time when the suit was instituted but attained majority during the pendency of the suit, have filed the present civil suit for declaration with consequential relief of permanent injunction and further a decree for possession directing the defendants to restore the possession to the plaintiffs of the suit property. The suit has been filed against Yadvinder Singh, the one, who obtained decree against the plaintiffs and late Lal Singh as also Harinder Singh, Kanshi Ram, Atul Nibre and Shri Jaggi, who are lessees or vendees of Yadvinder Singh. It has, inter alia, been pleaded that Lal Singh, husband of plaintiff No. 1 and father of remaining plaintiffs, owned and possessed agricultural land mentioned in the earlier part of this judgment. He died on May 20, 1991 leaving behind the plaintiffs as his legal heirs and successors. The suit land measuring 22 kanals 2 marlas situated within the revenue estate of village Sarhaul, Tehsil and District Gurgaon, and which stood in the name of Lal Singh, devolved upon the plaintiffs in equal shares, i.e., 1/4th share each. Besides the land, referred to above, Shakuntla Yadav, plaintiff No. 1 was also owner in possession of land measuring 41 kanals 2 marlas whereas plaintiff No. 2 Bharat Singh was owner in possession of land measuring 18 kanals 19 marlas. Plaintiff No. 3 Vineet Yadav was also owner in possession of land measuring 34 kanals 8 marlas. The total land that stood either in the name of plaintiffs or Lal Singh was 116 kanals 11 marlas. It is the case of the plaintiffs that the entire land measuring 116 kanals 11 marlas is situated in the heart of DLF Qutab Enclave Part, 11, Gurgaon, which is a posh colony of the area and the market value of the same comes to several crores of rupees. Lal Singh was a simple law abiding person and did not agree to sell the above said land to the DLF Company or to any other person, although several crores of rupees were offered to him. The plaintiffs are also simple law abiding persons. Plaintiff No. 1 is widow and is in helpless condition. Plaintiff No 2 Bharat Singh was aged 24 years and was studying MBA at Lucknow (UP), plaintiff No. 3 Vineet Yadav was aged about 21 years and was studying in B. Tech. in Banaras Hindu University, Banaras (UP) whereas plaintiff No. 4 Sharad Yadav was aged about 16 years and was studying in Class XIth at Saket Delhi, at the time of institution of the suit. The defendant is a very dangerous and antisocial type of person and was in the habit of grabbing valuable property of others especially who were in helpless condition. Shri Lal Singh, predecessorininterest of the plaintiffs was in bad days and did not have any good business as he earlier had, yet he did not agree to sell the land in question. Defendant No. 1, who wanted to obtain wrongful gain, had approached him repeatedly to sell the suit land to the DLF Company through him but deceased Lal Singh did not agree to it in the hope that the rates of the land in the locality would increase tremendously. Defendant No. 1 had indulged in such illegal acts and had tried to take illegal possession of the properties of O.N. Khanna, Ram Kumar Yadav and Bina Yadav etc. He had also indulged in criminal acts at various occasions and recently a case under Section 307 IPC was also registered against him with the police of city Police Station, Gurgaon. He had also indulged in similar criminal acts in regard to the case of DeFalcon Hotel, Delhi Road, Gurgaon and a case was registered against him. There were other large number of similar instances against him which were within his special means and knowledge. He had got links with other several criminal persons. To the utter shock, dismay and disappointment of the plaintiffs, they learnt about a week ago from the office of Halqa Patwari that the suit land had been mutated vide Mutation No. 671 in favour of the defendant on the basis of some fraudulent decree dated October 29, 1990 said to have been passed by Shri Anil Gaur, Sub Judge IIIrd Class, Gurgaon in civil Suit No. 1588 of 1990. On coming to know about this shocking news, the plaintiffs tried to verify the facts and wanted to inspect the file of the above said case and to obtain certified copies thereof. An urgent application No. 637 dated July 2, 1991 was also filed by plaintiff No. 2 but despite the best efforts on his part, the file was not being made available for inspection nor the certified copies were being supplied to them on the ground that the file was not traceable in the record room. Having faced such a situation, the plaintiffs approached the learned District Judge, Gurgaon and submitted an application with a request that the file be got made available and certified copies be directed to be issued to the plaintiffs but to the knowledge of the plaintiffs the search for the file was still going on and the same had not been traced till the date suit was filed. Plaintiffs got a reasonable apprehension to believe that the defendant has been instrumental for the missing of the said file, otherwise, his fraud and deceitful arrangement would have been revealed. The nonavailability of the case file, it is further the case of the plaintiffs, points an accusing finger towards defendant No. 1. Constrained, in the circumstances as have been mentioned above, plaintiffs moved an application on July, 2, 1991 to the Senior Superintendent of Police, Gurgaon, which was under investigation and the plaintiffs were assured by the local police that defendant No. 1 would be arrested in near future.

Coming now to the civil Court judgment and decree, said to have been obtained by defendant No. 1. It has been pleaded that the said judgment and decree dated October 29, 1990 passed in Civil Suit No. 1588 of 1990 titled as Yadvinder Singh v. Lal Singh and others, delivered by Shri A.D. Gaur, Sub Judge, IIIrd Class Gurgaon and subsequent mutation No. 671, said to have been attested on May 8, 1991, are the outcome of fraud, forgery, collusion, misrepresentation, concealment of real facts, void ab initio, non est, nullity, illegal and do not adversely affect the rights of the plaintiff in the suit land in any manner. While assailing the judgment and decree, referred to above, various grounds have been pleaded. It has been stated that defendant No.1 had got no right, title or interest in the suit land or any part thereof. There was absolutely no reason for the impugned judgment and decree being passed in favour of defendant No. 1 who had got absolutely no concern with the suit land. Neither any notice for summons were ever issued and received by the plaintiffs or Lal Singh nor they ever put in appearance in the Court by which the impugned judgment and decree was passed. The plaintiffs and Lal Singh were never approached for service of any summons/notice through the process server or by registered post nor they ever refused to receive any such summons/notices nor any proclamation or munadi or substituted service was got effected on them in any such case. The plaintiffs or Shri Lal Singh never engaged any counsel nor ever appeared in the Court. They did not file any written statement in any such case nor any statement on oath was made by them before the Court. They also did not sign any paper or power of attorney. They even did not authorise any person to suffer any such decree on their behalf. In fact, the plaintiffs did not have any knowledge of the impugned decree prior to about seven days from the date of suit, i.e. July 5, 1991. It is then pleaded that the land exceeding the value of Rs. 100/ could not have been transferred or alienated by way of any judgment and decree and there was no reason for the plaintiffs or Lal Singh to have parted with their valuable land without any rhyme and reason. It is then pleaded that the impugned judgment and decree dated October 29, 1990 is the result of fraud, misrepresentation, concealment of real and true facts, impersonation and collusion between the defendant, certain other persons and the officials. It is further pleaded that defendant no. 1 has committed acts of forgery, perjury and the impugned judgment and decree and consequent mutation were liable to be ignored and did not adversely affect the rights of the plaintiffs, who continue to be the owners in possession of the land. It is further pleaded that illegality of the judgment and decree and mala fide intention of defendant No. 1 could be gathered from the fact that the land belonging to Sharad Yadav, plaintiff No. 4 which he held in addition to his share in the estate left by his father, was not included in the said judgment and decree intentionally because he was minor at the time of institution of the suit and without appointment of a court guardian, a decree could not be granted/obtained against him. It is further the case of plaintiffs that the impugned judgment and decree was kept close guarded secret by defendant No. 1 and did not see the light of the day for about seven months. Mutation that followed the judgment and decree is also stated to be illegal and fraudulent. The plaintiffs on coming to know about the impugned judgment and decree and mutation No. 671, had been running from pillar to post to know the full details of the said decree but despite their best efforts they were not able to find better particulars about the same. In the meantime, defendant No. 1, without any right and to obtain illegal gain, threatened the plaintiffs to dispossess them from the suit land as also to lease it out and alienate in favour of third parties. Defendant No. 1 was requested to divulge full particulars about the judgment and decree and requested not to interfere in the peaceful possession of the plaintiffs as also not to dispossess them or to lease/alienate the suit land in favour of the third parties but the said defendant finally refused to accede to the request of the plaintiffs on July 5, 1991. During the pendency of the suit, initially, an injunction order was passed by the learned trial court on July 6, 1991 which was, however, vacated. Plaintiffs filed an appeal before the learned District Judge, Gurgaon, who initially granted an injunction order in favour of the plaintiffs which was, however, vacated on January 23, 1993. January 24, 25 and 26, 1993 were holidays. Plaintiffs filed a civil revision No. 339 of 1993 which came up for hearing before Hon''ble Mr. Justice J.L. Gupta on January 27, 1993 when following order was passed :

"Contends that the decree dated October 29, 1990 in civil suit No. 1588 of 1990 had been obtains fraudulently and the file relating to this case has been got misplaced by the respondents.

Notice of motion.

At this state, Mr. Sidarth Sarup, Advocate, appears for the respondents and accepts notice.

The respondent is restrained from alienating the disputed property or creating any other encumbrance thereon till further orders. To come up on February 2, 1993.

A copy of this order be given dasti to learned counsel for the petitioners."

Defendant No. 1 had, however, sold the entire property vide registered sale deed dated January 27, 1993 to defendants 2 to 5. Plaintiffs also filed a civil writ petition bearing No. 2377 of 1993 which came up for hearing before Division Bench of this Court on March 5, 1993 wherein notice of motion was issued for March 19, 1993 and status quo regarding possession was ordered to be maintained till further orders. It is the case of the plaintiffs that they continued to be in possession of the suit land upto September 15, 1993 when at 10 A.M. the defendants in collusion with the revenue authorities and police dispossessed them from the land by using force. The plaintiff also filed contempt petition No. 838 of 1993 against all the persons present at the spot and the same is pending for final adjudication.

In the facts, as have been fully detailed above, the plaintiffs have prayed that a decree for declaration to the effect that the impugned judgment and decree dated October 29, 1990 passed by Shri A.D. Gaur, Sub Judge IIIrd Class and consequent mutation No. 671 stated to be attested on May 8, 1991 are illegal, result of fraud, misrepresentation, void ab initio and do not adversely affect the right of the plaintiffs with regard to land mentioned in paras 1 and 2 of the plaint, be passed in their favour. Inasmuch as the plaintiffs were dispossessed during the pendency of the suit, they have also prayed for a decree for possession with a direction to the defendants to restore them the possession of land measuring 116 kanals 11 marlas. It may be mentioned here that initially the prayer of the plaintiffs was to declare the impugned judgment and decree dated October 29, 1990 as illegal and in consequence thereof to restrain the defendants from disturbing the possession of the plaintiffs but inasmuch as they were dispossessed during the pendency of the suit, they amended the plaint so as to seek restoration of the possession.

The cause of the plaintiffs has been opposed. Defendant No. 1 in his written statement, by way of preliminary objections, has pleaded that he is absolute owner in possession of land in dispute under a family settlement and arrangement which took place in the year 1989 between the defendant and plaintiffs 1 to 3 as also Lal Singh and since then the said plaintiffs ceased to have any right, title or interest in the land in question. The said settlement and partition was duly confirmed and acknowledged by the parties through a decree dated October 29, 1990 passed in civil suit No. 1588 of 1990 which is a valid one passed by a court of competent jurisdiction and as such defendant No. 1 is lawful owner in possession of the land in dispute and the suit of the plaintiffs is legally not maintainable. It is then pleaded that the plaintiffs are estopped from challenging the impugned judgment and decree by their own act and conduct, admissions and acquiescence. It is further pleaded that an oral settlement and partition took place between the parties in the year 1989 which was later on duly confirmed and acknowledged whereupon a decree on admission of the plaintiffs and Lal Singh was passed and the plaintiffs admitted the claim of defendant No. 1 as also settlement and partition voluntarily and without any pressure. The parties are, thus, bound by the said partition and settlement and their admissions by their act and conduct. It is then pleaded that the consent decree was passed with the consent of the parties without any pressure and fraud and it was a voluntary family settlement between the parties for the benefit of estate and to maintain peace and harmony in the family as also to keep the relations between the parties cordial and as such the said decree cannot be challenged in the present suit. It is also pleaded that the plaintiffs have not come to the court with clean hands and they have not disclosed the actual and real facts. There was a dispute between the plaintiffs, their father Lal Singh on one side and defendant and his father regarding the residential properties and as a result of this, a partition and settlement took place between the parties along with the father of the defendant in which the land in question was allotted to defendant No. 1 whose father had given a double storeyed building and two residential plots to the plaintiffs. The residential plots are bounded, in the East : 78 plot of Bhup Singh, west : 106 property of defendants, North : 54 House of Harijans, South : 54 Passage, another plot bound in the East : 24 passage, West : 23 passage, North : 33 house of Balbir, South : 32.6 passage and double storey building, costing lakhs of rupees bounded in the East : Passage, West; Sita Ram, North Gajraj and South Passage and since then the plaintiffs were owners in possession of th above residential properties and defendant No. 1 is owner in possession of the land in question. It is further the case of defendant No. 1 that the plaintiffs were fully satisfied as Lal Singh and his family members were running in a financial loss and the father of defendants helped Lal Singh and plaintiffs from time to time by all means and as such said settlement and partition was valid one which was duly confirmed through the court decree. Defendant No. 1 has also taken a preliminary objection that the suit is not maintainable in the present form.

Insofar as allegations of the plaintiffs with regard to decree being fraudulent, are concerned, the same have been denied. It is, however, admitted that prior to civil court decree, the plaintiffs were owners of the land described in the plaint but their right, title and interest came to an end after the civil court decree was passed in his favour. It has also been denied that the land in dispute is situated in the heart of the DLF Qutab Enclave or the value of the same comes in crores of rupees. In fact, the land in question is situated at village Sarhaul and was being used only for agricultural purposes. It has also been denied that crores of rupees were offered to Lal Singh but he refused to sell the land to DLF Company. Lal Singh was an educated man and he was a successful businessman and was previously running the business in the name and style of Yadav Tractor Company. Defendant has denied the knowledge regarding age of the plaintiffs or as to where they were studying at the relevant time. Defendant has also denied the allegations of the plaintiffs that he is addicted to bad habits or has links with antisocial persons of the town. He has also denied his involvement in any criminal case. He claims to be belonging to a very respectable family and his father was a retired Superintendent of Police. He admits passing of decree dated October 29, 1990 but asserts the same to be on admission of plaintiffs 1 to 3 and Lal Singh and that mutation, pursuant to the civil court decree was rightly sanctioned in his favour. Assertions of the plaintiffs that they came to know about the decree after seven months, have also been denied. With regard to plaintiffs having filed civil suit during summer vacation and obtaining stay, the bare minimum facts have been admitted but insofar as the case file being untraceable is concerned, it is the case of defendant No. 1 that there are reasonable grounds to believe that the plaintiffs or Lal Singh have got the same destroyed with a view to wriggle out of the family settlement and partition. The legal grounds taken by the plaintiffs in challenging the impugned judgment and decree have also been refuted. Assertion of the plaintiffs that they were dispossessed during the pendency of the suit has also been denied. It has, however, been admitted that defendant No. 1 executed sale deeds in favour of the purchasers, i.e., defendants 2 to 5 on January 27, 1993, well before the order was passed in civil revision by Hon''ble Mr. Justice J.L. Gupta, The stay had come to the notice of defendants only in the evening of January 27, 1993. It is further pleaded that before the sale deeds that were executed in favour of defendants 2 to 5, defendant No. 1 had already executed registered lease deed on January 25, 1993 of the entire land for a period of 99 years in favour of Amarjit Singh and Brij Bhan and the said lessees were put into possession and since then they were in cultivating possession of the suit land. With regard to civil writ petition that was filed by the plaintiffs, it is the case of the defendants that the same was based upon incorrect facts and material facts were concealed. The possession of the land was handed over to defendant No. 1 even before institution of the civil suit leading to passing of the impugned judgment and decree. The prayer of the defendant obviously is to dismiss the suit with special costs under Section 35A of the Code of Civil Procedure.

Defendant No. 2 in his separate written statement has taken some preliminary objections, like, the suit having been brought with ulterior motive in order to extract illegal benefits from the defendants, defendants having purchased the land for valuable consideration after necessary enquiries at the spot with regard to title and possession of defendant No. 1 over the suit land, the suit having been under valued and ad valorem court fee having not been paid on the plaint, suit being barred by the provisions of Order 23 Rule 3A C.P.C., suit being an astute device created by the plaintiffs as well as defendant No. 1 in connivance with each other, their sole motive being to acquire easy opulence without investing anything merely by getting the judgment and decree set aside. It is then pleaded that the plaintiffs made a complaint to the Senior Superintendent of Police, Gurgaon, against defendant No. 1 for registration of a case under Section 420/467/471 IPC. The subject matter of the complaint dated July 22, 1991 and the present suit is the same on the basis of which FIR No. 528 dated July 22, 1991 was registered against defendant No. 1. The police authorities investigated the matter and came to conclusion that no offence was committed by defendant No. 1 and accordingly the FIR was filed vide order dated January 6, 1995. In the complaint, plaintiff No. 1 had obtained false decree against her husband and plaintiffs 1 to 3 of the land in dispute in his favour but she never disclosed in the said complaint that she had already filed a civil suit, i.e. the present suit. In the plaint of the suit filed on July 6, 1991 the date of knowledge of impugned judgment and decree was not disclosed at all, it was merely alleged that they came to know only about a week ago. The relationship of the plaintiffs and plaintiff No. 1 inter se has also been detailed. It has also been pleaded that the plaintiffs had failed to make a mandatory declaration in the body of the plaint to the effect that prior to the institution of the present suit, they had not filed any other suit pertaining to the land in question. For want of above said averment, the present suit is not maintainable. It is further averred that DLF is a private coloniser having erected highly modernised townships around the city of Gurgaon, i.e., DLF, Phase, I, II, III etc. In furtherance of its expansion programme, it instigated the plaintiffs to file the suit in question against the defendants and to get the decree in question set aside. On merits as well the case of the plaintiffs has been contested. The facts, as asserted by the plaintiffs have been denied and so also the legal grounds pressed into service for setting aside the civil court decree. The possession of plaintiffs over the suit land upto September 15, 1993 is also denied. The fact that the land is situated near the DLF Qutab Enclave has also been denied.

Defendant No. 3 in his separate written statement has taken preliminary objections akin to the one taken by defendant No. 2 and likewise filed written statement on merits as well. A separate written statement on behalf of defendants 4 and 5 has been filed. The stand taken by defendants 4 and 5 is no different than the one taken by defendants 2 and 3. Yet another joint written statement on behalf of defendants 2 to 5 is also available on records of the case but there is no need to give details thereof as by and large it is only reiteration of the facts pleaded in the separate written statements filed by the defendants as have been detailed above.

Plaintiffs have chosen to file replication to the joint written statement filed on behalf of defendants 2 and 5 as also separate written statement filed by defendant No. 1.

When the matter was still before the Sub Judge, First Class, Gurgaon, on the pleadings of the parties, then available, vide orders dated January 18, 1992, following issues were framed :

"1. Whether the plaintiffs are the owners in possession of the suit land ? OPP.

Whether the judgment and decree dated 29.10.1990 passed in suit No. 1588 of 1990 are illegal, null and void ? OPP.

Whether the plaintiffs are estopped by their own act and conduct from filing the suit ? OPP.

Relief.

On August, 26, 1994, Mr. Hemant Kumar, learned counsel for defendants 2 to 5 had stated that in view of the pleadings of the parties, two additional issues require to be framed. This court, after scanning through the pleadings of the parties, had framed two more issues which read as follows :

"4. Whether defendants 2 to 5 are bona fide purchasers for value and consideration without having notice of the defective title of the vendor ? OPP 2 to 5.

Whether the suit of the plaintiff is mala fide and has been brought with ulterior motive to blackmail defendants 2 to 5 ? OPD.

Relief.

The earlier issue with regard to relief, i.e. Issue No. 4 was recast as Issue No. 6. On an application moved by the defendants, yet another issue, i.e. Issue No. 6 was framed vide interim order dated May 3, 1995. The same reads thus :

"6. Whether the present suit challenging the compromise recorded in Court is barred under Order 23 Rule 3A C.P.C. ?

Vide interim order dated April, 19, 1996 yet another issue which reads as follows, was framed :

Whether the plaint has been properly valued for the purposes of Court fee and jurisdiction ? OPD"

On May 24, 1995 following additional issue was also framed.

"8. Whether the suit praying for a decree for declaration without asking for consequential relief of possession is incompetent ? OPD.

On the issues that have been detailed above, parties have led oral as well as documentary evidence. Before, however, the evidence is assessed, and issue wise findings are given, it shall be appropriate to give a small pedigree table of the parties. The relationship as given in pedigreet able, Ex. P8/1 is admitted.

Plaintiffs, with a view to substantiate their case, examined PW1 Y.D. Adlakha, Chartered Engineer, Registered Valuer, Gurgaon, as PW1. This witness was examined by the plaintiffs when the matter was still before the Sub Judge First Class, Gurgaon. PW1 stated that he was Graduate in Civil Engineering. He had inspected the site on February 10, 1992 and prepared a report and site plan. In his opinion, the market value of the residential building (portion of the same building) including land and vacant plots for ''A'' and ''B'' during 1989 was about Rs. 2,93,039/. He proved his report, Ex. P1, Annexures, Ex. P2 and P3 and site plan Ex. P3 as part of his report. In his cross examination, he stated that he passed Section ''A'' and ''B'' from the Institute of Civil Engineers, India in the year 1964. Before passing the degree, he had passed diploma from Roorki University in the year 1964. Before inspecting the site, he had not issued any notice to the defendants. He had not annexed the rates fixed by the Collector along with his report but he had the same with him and could produce for perusal. He produced a photo copy of the rates as mark ''X''. He denied that his report was incorrect and had given the report at the instance of plaintiffs without any basis. PW2 Asha Goel stated that the file of the Civil Suit was not available in the office. She had no knowledge about the said file. This file was not given in her charge. She also stated that the enquiry with regard to this missing file was going on. In her crossexamination, she stated that in the records this file was entered in Goshwara dated November 12, 1990. PW3 Jatinder Clerk stated that in their department, papers and plans for school Bharat Academy were filed on August 10, 1989. A permission was sought for change of use of land regarding which letters were issued from their department. The witness further stated that he had brought the application filed by Lal Singh. The application was diarised vide diary No. 10895 dated August 10, 1989. He proved photo copy of the application Ex. PW3/1. Alongwith application there was project report of the school. He proved copies of letter Ex.PW3/2 and PW3/3. These were issued by their office and that the original were correct according to records. In his crossexamination, he stated that in their office diary register was maintained but he had not brought the same with him. He also stated that he had not personally dealt with this file nor he personally knew Lal Singh. PW4 R.N. Yadav, Clerk from the Telephone Department, stated that Telephone No. 21170 was installed by Lal Singh on August 31, 1979. This telephone vide order dated February 21, 1989 was shifted to Delhi Road, opposite Ajit Cinema C/o Smt. Jawala Devi. It was transferred on the application of Lal Singh. PW5 Manphool HC Police Station City Gurgaon, stated that original FIR No. 528 dated July 22, 1991 under Sections 420/468/471/468 IPC was brought by him, copy whereof was exhibited as Ex. PW5/1. In his crossexamination, he stated that this FIR was not written in his presence and that subject mater of FIR was under investigation. He could not tell as if the accused in the said FIR was arrested or not. PW6 Nihal Chand LDC, HSEB, Industrial Area, Gurgaon, stated that he had brought the summoned record regarding meter connection LD 88 which was issued in the name of Shri Nand Lal at village Sarhaul. The connection was released on September 17, 1969 which is continuing till date. He proved receipts, Ex. PW6/1 to PW6/6. He further stated that this was a domestic connection. In his crossexamination, he stated that he had not made a personal visit with regard to this connection in village Sarhaul and that in this the part of the house, Mohalla or Patti has not been mentioned. The remaining evidence was recorded by this Court.

Brij Mohan, Reader, District Judge (Vigilance), Haryana, appeared as PW7 and stated that he had seen the report given by Shri M.S. Nagra, District Judge (Vigilance) Haryana which is Ex.PW7/1. No crossexamination was adverted to this witness. Plaintiff Vineet Yadav appeared as PW8. The stated that he was B. Tech and Mech. Engineering from Banaras Hindu University. He was a student from 1988 to 1992. His father Lal Singh died on May 20, 1991. He owned land measuring 22 kanals 2 marlas at village Sarhaul. District Gurgaon and was in self cultivating possession of the land till he died. After the demise of Lal Singh, the property held by him was inherited by his mother, himself and his two brothers and they were in self cultivation of the land. They owned a house at village Sarhaul, District Gurgaon, and the said house was constructed before his birth. They had only 1/4th share in the house aforesaid being descendants of their grandfather Nand Lal who shared the aforesaid property with his brothers. The house in question was of the value of rupees two lacs. Besides the land mentioned above, he had his own land measuring 34 kanals 8 marlas which was in his self cultivation. Yadvinder Singh was his relation. He was grandson of his grand father''s brother. He proved pedigreetable. Ex. PW8/1. He further stated that there was no settlement between him and Yadvinder Singh in the year 1989. No suit was ever instituted against him by Yadvinder Singh and he received no summons nor did he engage any lawyer nor he ever put in appearance in any court nor conceded the claim that might have been filed by Yadvinder Singh. The decree obtained against him by Yadvinder Singh came to his notice after his father''s death when his mother wanted mutation of the land to be sanctioned in favour of legal heirs of Lal Singh. Insofar as he was concerned, he was at Jamshedpur and his brother informed him about this through a letter written to him. In October, 1990 he was at Banaras. He produced on record certificate evidencing having passed B. Tech in Mechanical Engineering as Ex. PW8/2. When he came to know about a decree having been passed against him, he obtained the services of a lawyer and aplied for a copy of the judgment and decree. However, the same was not made available to him. Thereafter, he made efforts to inspect the file but the same was not traceable and filed the present suit. In his crossexamination, he stated that in the years 1988 to 1992 he was studying in Banaras Institute of Technology and his monthly expenses were Rs. 600/. Prior to his joining at Banaras, he was studying in the Modern School, Vasant Vihar, New Delhi. He did not know the monthly expenses that might have been incurred by him while studying at Delhi. Bharat Singh was of 27 years of age on the date statement of this witness was recorded. Bharat Singh was trying to open an industry of his own. He had done his MBA from Lucknow University which he did in the year 1992. He studied at Lucknow for two years. His expenses there would be Rs. 700/ to Rs. 1000/ per month. Prior to his joining at Lucknow, he was studying at Vankteshwar College at Delhi. Sharad Yadav, his youngest bother, had just finished his 10+2 from Gyan Bharat School, Delhi and he was not aware as to how much monthly expenses might be incurred by him. His father, before his death, was engaged in agricultural pursuits and 78 years prior to his death, he was doing some business. He had an agency of Escort/Ford Tractors and motor cycles. He was doing his business in partnership. He, however, did not remember as to how many partners he had joined before his death. The name of the business run by him was Yadav Tractors. He started his business immediately when he was born, i.e. around the year 1970. The business was going on well but his father decided to close it down voluntarily as he had an inclination to do some other business. He might have done business for 12/13 years before arriving at the conclusion not to do so far the reason, referred to above. He admitted that one Amar Singh was partner with his father. He denied that any losses were suffered by his father in business with his partner Amar Singh. He was not aware if any recovery was due against his father from the Sales Tax or Excise Department. He came to know about the fraud of obtaining decree against them when he was at Jamshedpur where he had gone after ten days. Whatever steps were taken by his mother and brothers, he was being detailed in this connection on telephone. What steps his mother and brothers took in visiting various persons in that connection, he could not be present with them as he was away to Jamshedpur. However, he was apprised of the steps taken by them and for that reason, he had heard from them but he was not personally present there. He came to know about Yadvinder Singh after knowledge of the decree. They had a house in village where presently nobody was residing and they had rented it out. He did not remember as to when the house was rented out. His father had shifted to Delhi in 1975 and he himself went to Banaras University for doing his engineering in 1988. He denied the suggestion that they voluntarily suffered the consent decree and that they subsequently changed their mind with a view to blackmail the vendees. He further denied the sugestion that he had appeared before the civil court along with his father in connection with the suit culminating in the decree in question. PW9 Shakuntla Yadav, deposed in tune with the averments made in the plaint. She further stated that the house in village was inherited by her fatherinlaw to the extent of 1/4th share which was inherited by her husband. It was a joint house of the co sharers being in possession. One of the cosharers was her fatherinlaw and then her husband. Chuhla Tax of that house used to come in the name of her husband Lal Singh Yadav. She had seen the receipts of Chuhla Tax for the years 1983 to 1991 and the same was marked as A. She further stated that the value of the house so far as their share, i.e. 1/4th share is concerned, should be around two and half to three lacs. She then gave her relationship with Yadvinder Singh and stated that he was a property dealer but his main avocation was to swindle the people and grab land. He had grabbed land of Veena Yadav and Ram Kumar and on account of that, a case under Section 307 IPC was registered against him. He was prosecuted in the case aforesaid but was acquitted. He produced a certified copy of the judgment as Annexure PW9/1. She also stated that Yadvinder Singh instituted no suit against them. The plaintiffs received no summons of any case that might have been instituted against them. They never appeared in any court nor made any statement nor suffered any decree in the suit that might have been instituted by Yadvinder Singh. On June 26, 1991 they came to know that in some suit instituted by Yadvinder Singh a decree had been passed against them. A photo copy of decree has been produced on record as Ex. PW9/2. They applied for certified copies of the judgment and decree and related documents but they were not supplied the same. They had applied though a lawyer who made an application for inspection as well but the record of the case was not traceable. It is thereafter that the plaintiffs instituted the present suit challenging the decree. The ancestral land in which her husband had a share was partitioned between him and his cosharers in the year 1979 and she produced on record certified copy evidencing partition as Annexure PW9/3. Balbir Singh, cousin brother of her husband was not satisfied with the partition and he filed a suit in the Court of Sub Judge II Class, Gurgaon as he thought that he had been given one or two acres of land less. Litigation in that case was decided by the Sub Judge on January 22, 1991 and she produced on record a copy of judgment in the case aforesaid as Annexure PW9/4. (With regard to some documents, a mention has been made as ''Annexure''. The same be read as ''Exhibit''). After the demise of her husband, when she went to the revenue patwari to get the land, standing in his name, mutated in the names of her sons, she was told that land belonging to her husband had already been transferred to Yadvinder Singh by way of a decree. The patwari further told her that the land which was to come to her share and to the share of her children, had also been mutated in favour of Yadvinder Singh on account of decree. The mutation was sanctioned on May 8, 1991 in favour of Yadvinder Singh whereas the decree was passed in his favour in October, 1990. It is the case of plaintiff Shakuntla Yadav that the time between the passing of decree and sanctioning of mutation was taken as during this time the case file resulting into decree in favour of Yadvinder Singh was made to disappear. This explanation was objected to by counsel for the defendants on the ground that evidence was beyond pleadings. The question was left open to be decided at the time of arguments. She further stated that as long as her husband was alive, he was in actual physical possession of the land and after his demise, they continued to be in possession till October 14, 1993. It was on October 15, 1993 that their standing Jawar crop was cut by the defendants and their tractor was forcibly taken out of the land and they were illegally and forcibly dispossessed with the help of police. She produced on record certified copy of jambandi for the year 198687 as Ex. as PW9/8 and 9.

She further stated that there that there was a Samadh of her husband in the land in dispute and that area continues to be in their possession. She produced on record agreement to sell Mark A and B depicting that she had purchased the land from one Ram Mehar. She further stated that in the year 1993 value of the total land was about eight crores and she was saying so because DLF had offered that price to her husband when he was alive. Her husband wanted to open a residential educational academy regarding which he had started correspondence in the year 1989. Some of the letters pertaining to the correspondence she placed on records as Ex. PW9/10 and 11. Defendants had been threatening them with dire consequences if they were to continue with this litigation. They were however, telling that they would surrender some land in her favour but in case this was not accepted and they pursued the litigation, they shall be liquidated. She further stated that they were dispossessed despite injunction granted in their favour. She produced on record copies of stay orders as Ex. PW9/12 and 13. In her crossexamination, she stated that the decreesheet that they had attached with the plaint was obtained from the police in pursuance of an FIR that was recorded against Yadvinder Singh. Police had obtained this decree from Yadvinder Singh and on her request, a copy was given to her by the Superintendent of Police himself. She admitted having lodged an FIR on July 22, 1991 but by way of explanation she stated that insofar as she is concerned, she made a complaint on July 22, 1991 but by way of explanation she stated that insofar as she is concerned, she made a complaint on July 22, 1991 and as to on what date the FIR was lodged, she did not know. When she came to know about the fraud having been committed by Yadvinder Singh, she called the people of her Biradari (brotherhood). Most of them were villagers and she remembered the names of only twothree persons, namely Shamsher Singh, Balbir Singh, Sita Ram and Mangal Singh. She further stated that they were living in the same building where Yadvinder Singh is living in village but they were living in separate portions. She had no dispute with Yadvinder Singh prior to filing of the complaint before the police. Out of total land, subject matter of the suit, ancestral land was 90 kanals and some marlas. In the partition matter, that was commenced by Balbir Singh, counsel representing Lal Singh was Kanwar Sain Jain, Advocate. She admitted that father of Yadvinder Singh retired as Superintendent of Police and died on March 15, 1991. Her husband was engaged in farming prior to his death. The offer by the DLF was made to her husband with regard to sale of the land which was oral.

She denied the suggestion that price of the land had been introduced on account of talks of sale by DLF as an afterthought and the story had been fabricated on that count. She further denied that they were never in possession of the land in dispute. She admitted that her husband was doing tractor business in partnership with Amar Singh, Ude Vir Singh, Shashi Prabha and Krishna. Amar singh was uncle''s son of Lal Singh and Ude Vir Singh was brotherinlaw (sala) of Amar Singh. She admitted that Ude Vir Singh had filed a suit against her husband regarding partnership business and in that case as well her husband was defended by Kanwar Sain Jain, Advocate. She denied there being any losses in the tractor business. There were some demands against the partnership firm of sales tax. State Bank of India had instituted a recovery suit. However, she did not remember the exact amount mentioned in the plaint of the said suit. She denied the suggestion that the business of tractor agency had failed. She also denied the suggestion that since her husband owed a lot of money to people he had to leave the village and started living at Delhi. However, she admitted that they started living at Gurgaon in 1988. No money was borrowed by partnership concern from the Punjab National Bank. No suit has been instituted by the said Bank either. She denied the suggestion that father of Yadvinder Singh had helped her husband in all matters including financial matters from time to time and it is on account of that a family settlement was arrived at and according to the same property in dispute was transferred in the name of Yadvinder Singh. She denied the suggestion that the value of the plots that came to their share in pursuance of the alleged decree was Rs. 300/ per sq. yard. She also denied the suggestion that she had derived knowledge of the decree during the life time of her husband and the mutation was sanctioned in the presence of Nambardar of the village and various other persons. She further denied the suggestion that R.S. Saini, Advocate was engaged as counsel and voluntarily a statement was made in the Court resulting into decree against them. She further denied that no consent written statement was filed by them. In the crossexamination, adverted to her by learned counsel for the vendees, she stated that she had worked in the concern of her husband known as Yadav Tractors on a salary of Rs. 1000/ per month. She worked for a year but did not remember the year in which she worked. Her husband was offered price of Rs. 8 crores in the year 1990 and the talks were held at their house. She denied the suggestion that the period from June 26, 1991 to July 2, 1991 was utilised by them to make the judicial file disappear. She further denied the suggestion that defendants 2 to 5 purchased the land for consideration without notice of defective title of their vendor. The residential house had been divided into four parts and in their portion, there were only five rooms. The house was of A class construction and surrounded by other houses. The house in the village, however, did not have much value. The samadh in the land in dispute is in an area of about one and half acres and the remaining land may be 45 kms. towards Delhi. She denied the suggestion that this suit was filed with a view to blackmail the vendees who had purchased the land from Yadvinder Singh, PW9/10. Kamla wife of Bhim Singh stated that Lal Singh was her brother. Her father had three brothers. The house in village Sarhaul was divided into four parts, one share coming to her father and the other three to his brothers. She had only one brother and three sisters. One sister had already died. Before her marriage, she was residing in village Sarhaul. Her brother was also residing in the same house. Yadvinder Singh is their distant relation. She had excellent relations with her brother. He had never talked to her if he had transferred his land in favour of Yadvinder Singh. In her crossexamination, she stated that she did not exactly remember as to when the house at Sarhaul was divided because it was during her childhood. PW11 Bharat Singh plaintiff deposed that he passed MBA examination in 1992 from Lucknow University. His remaining statement is in tune with the statement made by his coplaintiffs Vineet and Shakuntla Yadav. When crossexamined by the counsel for Yadvinder Singh, he stated that he had graduated from Venkateshwar College, Delhi University, Delhi in the year 1988. In the year 1980 he was studying in Delhi Public School and was probably in 8th Class. At that time his father was doing business of tractor agency. His answers to the business done by this father and other related matters were the same as were given by other plaintiffs. He also stated that there was no litigation between his father and his partners with regard to tractor business. In assessment case, Kanwar Sain Jain, Advocate was representing him. He corrected himself to say that he did not know the exact nature of litigation in which Kanwar Sain Jain was engaged by him. He denied the suggestion that his father had got loan from Randhir Singh. He also denied the suggestion that with a view to put an end to the disputes, a settlement was arrived at by them and the questions put to him with regard to impugned judgment and decree were replied by him in tune with his coplaintiffs. This witness was separately crossexamined by counsel representing defendants 2 to 5. In the said crossexamination, he stated that he did not know the exact date when the stay was granted. Insofar as he could recollect, the stay was granted on March 5, 1993. The stay was granted in the Civil Writ Petition and inasmuch as stay was granted to them by the writ court, they did not make any application for grant of stay in the suit. He could not say if he had an occasion to come to know about his father being summoned with regard to suit pertaining to his land. However, he stated that if the suit was pertaining to his land, summons ought to have been received by him. Insofar as he could remember, the taxes payable by them were to the tune of Rs. 3 lacs. He had no idea about the lawyer, with the name of R.S. Saini. He denied knowledge if the report lodged by them to the police had been found to be false. When separately crossexamined by Mr. Hemant Kumar, learned counsel for remaining defendants, the witness stated that in 1990 he joined MBA course and after having completed his first year, when he came to Delhi for summer vacation, his father died. The summer vacation was for two months. It is on June 26, 1991 that he came to know that the decree has been passed against them. He denied the suggestion that consultation was done with an Advocate before loding the FIR.

Defendants, while leading their evidence, examined DW1 Uttam Chad, retired Patwari. He stated that he was revenue patwari of village Sarhaul from 1990 to 1991. The entries in mutation, Ex. PW11/1 were in his hand and this mutation was recorded on April, 18, 1991. Lal Singh along with Yadvinder Singh had come to him to get the mutation recorded. They had produced a copy of decreesheet. Mutation was sanctioned on May 8. 1991. At the time when mutation was sanctioned, Lal Singh was present. There were other villagers also present at that time. In his crossexamination, he stated that the entries in Khasra Girdawari, Ex. PW 9.9 were in his hand. Lal Singh waspersonally known to him. He had issued no notice to Lal Singh. However, proclamation was done. He had issued no notice to any of the plaintiffs. Neither Shakuntla Yadav nor her children appeared at the time of mutation. He had not obtained the signatures of Lal Singh at the time of mutation. He could not give the names of others, who were presen along with Lal Singh and Yadvinder Singh. He had kept no record of proclamation got done by him with regard to this mutation. Naib Tehsildar had orally told him to get the proclamation done. He had kept no record. Gopi Chand was the Naib Tehsildar at that time. Lal Singh was present on both the occasions, i.e. when the mutations was recorded and when it was sanctioned. He had no written record to show that Lal Singh was present on either occasion. To the court question he replied that he had maintained rapatrojnamcha which was kept by every Patwari. No entries were recorded with regard to mutation therein. He did not even make entries in the rapat rojnamcha with regard to proclamation. He had never read any rules for the procedure that a Patwari is supposed to follow. He had never recorded an entry of proclamation having been done in the raptrojnamcha. When further crossexamined by the counsel, he stated that a certified copy of the decree sheet which was produced before him was sent to the Tehsil Headquarters. Only a copy was kept by him. He denied the suggestion that no certified copy of decreesheet was ever shown to him either by Lal Singh or Yadvinder Singh. Copy of judgment was not shown to him when the decreesheet was produced. He was not appearing in the court in pursuance of the summons issued to him. Yadvinder Singh had broutht him in the Court. He denied the sugestion that he was giving false evidence on the asking of Yadvinder Singh that he was giving this statement out of greed. He also denied the suggestion that Lal Singh never came to him for recording the mutation or ever met him earlier. He had no personal rapport with Lal Singh. Even though he had not visited him for any official work, yet he knew him. He admitted that after the demise of Lal Singh, his widow Shakuntla Devi and her children had approached him for mutating the land in their favour and he had mutated the land of Lal Singh in favour of Shakuntla Devi and her children. This was true only with regard to the remaining land which was not subject matter of civil court decree. With regard to the land which was subject matter of civil court decre, he had informed Shakuntla Devi that the said land had already been mutated in favour of Yadvinder Singh. This witness was also crossexamined by counsel for defendant No. 2. In the said crossexamination, he admitted that he had not obtained the signatures of Yadvinder Singh at the time of mutation. On the day of sanction of mutation, there were other matters of mutation also. DW2 Gulshan Rai, a Clerk from the State Bank of India, Mehrauli Road, Gurgaon stated that he had brought the statement of accounts of Yadav Tractors, Gurgaon. He had also brought the record with regard to suit for recovery that had been filed by the Bank against Yadav Tractors. The suit for recovery was pending against Yadav Tractors in Civil Courts at Gurgaon. The suit amount was Rs. 3,40,796.30. The suit was instituted in January, 1987. On the request of the counsel for the defendants this witness was discharged for the day as he had not brought some other record summoned from him. He was bound down to appear on February 24, 1994. On the adjourned date, the witness stated that he had brought the bank loan file of the Yadav Tractors. The firm obtained a loan of Rs. 6 lacs on December 21, 1977. On September 24, 1984 the firm concerned was issued a notice by the Bank asking it not to route its sale proceeds through Union Bank of India when the credit limit was with the State Bank of India. There was no response to the notice aforesaid. An amount of Rs. 3,13,486/ was due towards the said firm by December, 1986 and this amount was not paid, thus resulting into filing of civil suit for recovery against the firm aforesaid. The suit was decreed on February 9, 1995. The witness placed on record a copy of the jdugment and decree sheet as Ex. DW2/1 and 2. Despite decree, no dues of the Bank had so far been paid. When crossexamined by counsel for the plaintiffs, the witness stated that the account as aforesaid was in the name of M/s. Yadav Tractors. The firm was a partnership concern consisting of partners Lal Singh, Amar Singh, Ude Vir Sing and Shashi Prabha. As per records, the notice, referred to above, was issued as the bank had not liked opening of account in Union Bank of India by partnership concern. He could not say if the aforesaid account was opened in the name of Yadav Tractors in Union Bank of India. The notice aforesaid was sent to the firm with a copy to all the partners. DW3 Paras Ram, a Clerk in the department of Excise and Taxation, Gurgaon, stated that he had brought the file of M/s Yadav Tractors, Gurgaon, pertaining to Sales Tax. The concern had Sales Tax Registration No. 5761. From the records he stated that the firm consisted of partners, Lal Singh to the extent of 30%, Rao Amar Singh to the extent of 20%, Rao Ude Vir Singh, to the extent of 20%, Smt. Krishna Devi to the extent of 20% and Smt. Shashsi Prabha to the extent of 10%. The concern was registered in 1962 and it had tax liability to the tune of Rs. 1020/0 as on December 20, 1989. In the year 1980, the partners of were Rao Lal Singh, Rao Amar Singh Rao Mohinder Singh. In the year 1987, however, there was a change in the partners. The firm had the same liability, i.e., Rs. 1020/ in the year 198485 as well. In the year 1998 the total turn over of the concern was to the tune of Rs. 1,02,35,984,90. On the aforesaid turn, the concern had paid sales tax to the tune of Rs. 4,10,034/. The tax aforesaid was paid on July 30, 1984. Again said, the aforesaid amount of tax was from April 1, 1984 to March 31, 1985. In the year 198687, the turn over was to the tune of Rs. 6317/ and the Sales tax paid was only Rs. 225/. In the year 198586 total turn over was Rs. 74,666/ and the sales tax liability on that was to the tune of Rs. 4,786/. The tax was, however, paid. The turnover in the year 198788 was nil as the firm had been closed down on their request so made with effect from October 1, 1987. The request was made by the firm through Lal Singh partner. The witness further stated that whatever liability was there, it was of the firm and not of individual partners.

Defendant Yadvinder Singh appeared as DW4. He stated that there were financial transactions between his father Randhir Singh and Lal Singh. His father used to lend money to him as the firm of Lal Singh was under financial crisis. Lal Singh was a dealer of Escorts Tractors. The business run by him had come under financial crisis in 1984 but in 1985 it totally crumbled as there was dispute inter se partners of the firm of which Lal Singh was major partner. In 1985 Lal Singh was residing in Vasant Vihar, Delhi. He left his residence at Delh in 1986 as the landlady, in whose house he was residing, had instituted legal proceedings against him. His father Randhir Singh had given an amount of Rs. 7 lacs to Lal Singh upto 1989. At one time, an amount of Rs. four and half lacs was paid and at the other time another sum of Rs. two and half lacs was paid. Lal Singh demanded more money in 1989 from his father as he was still under financial crisis as also that he wanted to remodify his house at village so as to make it habitable. However, his father refused to give money till such time there was some writing with regard to borrowing and lending. They arrived at a settlement by which the land in question was to be given to Randhir Singh, his father. HIs father, in lieu of land was to give two plots to Lal Singh. The said plots were of 400 yards each. His father also gave his portion of house in village Sarhaul to Lal Singh. In lieu of the transaction aforesaid, the money given to Lal Singh was to be considered as having been repaid. Besides that, a cash amount of Rs. 4 lacs was also paid by his father. His father came into possession of the land in dispute which was ultimately given to him. He came into possession in August/September, 1989. In the year 1990, they obtained decree with regard to this land. Lal Singh had accompanied them at the time of institution of suit. After institution of the suit, statements of Lal Singh, Shakuntla Devi, Bharat Singh and Vineet were recorded in his presence in the court of Shri A.D. Gaur, Sub Judge, Gurgaon. At the time of recording statements of the persons aforesaid, their respective counsel/lawyers were also present. On March 15, 1991 his father breathed his last. After the demise of his father, Lal Singh himself suggested them that they should get the mutation of land in dispute entered in their favour and he actually accompanied them to the revenue patwari to get the mutation entered. Lambaradar, Revenue Patwari and Lal Singh along with other respectables were present at the time of sanction of mutation. Lal Singh also breathed his last on May 20, 1991. After the demise of his father and Lal Singh, DLF, which is also interested in the land in dispute, as also the relations of Shakuntla Devi got the present civil suit instituted. He stated that a person from DLF was present in the court even at the time of recording of his statement.

The witness pointed out to a person sitting in the court room, who named himself as Sarup Chand. On count questioning, Mr. Sarup Chand stated that he had come in the High Court that day in connection with his personal case wherein his lawyer was Mr. Sanjay Vij. He stated that his case was fixed in the Court of Hon''ble the Chief Justice which stood adjourned to February 8, 1995 and that Mr. Sanjay Vij, Advocate had asked him to wait in this court for some time. Mr. Sarup Chand is a liaison officer in DLF. When cross examined by Mr. Gaur, learned counsel representing the vendees, the witness stated that the land in dispute was sold by him to Harinder Singh and others. They had shown mutation of land in dispute as also order of the Sub Judge to the prospective vendees before they sold the land to them. At that time order of District Judge was also shown to the vendees. They had taken the vendees to the spot. He admitted that the vendees, two days prior to execution of the sale deed, had even got executed a lease deed for 99 years in favour of Amar Singh etc. On a court question, he stated that it is true that Amarjit Singh etc. in whose favour the lease deed was executed, are closely related to prospective vendees. He further stated that the land in dispute is located in the centre as on all sides there is land of DLF. He further stated that his father was catering for the education of children of Lal Singh as they were studying outstation and his father incurred lot of expenses on that count. They had delivered vacant possession to the vendees. In the cross examination adverted to by learned counsel for the plaintiffs, he stated that his father was promoted to the post of Superintendent of Police in 1986. Before his promotion as SP, he was Deputy Superintendent of Police. He might be earning as his pay an amount of Rs. 50006000/ per month as DSP. He might have had a jump of Rs. 5001000/ insofar as his pay in concerned when he was promoted as SP. They are three brothers and one sister. Their mother is also alive. His father used to incur all expenses of his mother and children. His father, besides salary income, was also having rental income from two houses that he owned in Delhi and Gurgaon. His father was earning Rs. 4000/ per month from Delhi house and Rs. 6000/ from Gurgaon house as rent. Insofar as he recollected, one of the tenants in Gurgaon was Mr. Goel, whose full name he did not remember. His father was getting the rent in cash and not by cheque. He must be showing this income in his income tax returns. With regard to renting of both the houses, his father had never got executed rent deed at any time. Insofar as Delhi house was concerned, two tenants, whose names he recollected, were Mr. R.S. Aggarwal and Mr. Ved Sharma. They might be paying rent to the tune of Rs. 12500/ per month. His father must be giving receipt in lieu of payment of rent by his tenants. He further stated that since he never received the rent himself, there was no question of his executing any rent receipt.

He could not say if his father extended and financial help to any other person besides Lal Singh. The financial help was rendered to Lal Singh due to family relations. At the time of settlement of the dispute between his father and Lal Singh, when an amount of Rs. 4 lacs was given to Lal Singh, his father had mortgaged his property. The property so mortgaged was a restaurant at Sarav Priya Vihar, New Delhi known as Mehfil Classic. This property was not yielding any profit to his father. The aforesaid property was not a running restaurant. It was only a site and building thereon for the restaurant. It was lying vacant. Since the property was purchased for restaurant purposes, the same was named as Mehfil Classic. The property aforesaid was mortgaged in favour of one Ram Kumar of village Nathupur. The mortgage was not in writing. However, the same was later transferred to Ram Kumar in 1992 by his father. He did not remember the exact date when it was transferred. However, all the transactions were oral. The amount of Rs. four and half lacs and two and half lacs was paid to Lal Singh in 1985 when he was in financial crisis. The money was paid in cash. No document was executed with regard to transactions of loan aforesaid insofar as he recollected. He denied the suggestion that there were no cordial relations inter se parties. He was married in 1990. The widow of Lal Singh and here children had come in his marriage and as to whether they had some photographs of theirs, he stated that he will have to check it up. Plaintiff Bharat had done his schooling from Delhi and now he was doing his MBA. He did not know from where he was doing his MBA. He also did not know from where he had done his graduation. He also did not know where Vineet was residing those days. He then stated that since there were strained relations between them, he did not know for the last four years as to what the plaintiffs were doing. In 1990 they had cordial relations. What was Vineet doing in 1990, he did not know. In which school he was studying, he did not know. Sharad was also studying in 1990 and he was daily passenger from Gurgaon to Delhi. However, he did not know in which school he was studying in Delhi. The witness then stated that the name of his grandfather was Ch. Khem Chand. His grandfather had three brothers. There was a partition between the brothers of his grandfather. As to whether the partition had taken place in 1970 he did not know. Whole of the property was partitioned. With regard to the aforesaid partition, there was some dispute between Balbir Singh, who instituted a suit against Lal Singh. That suit was dismissed in 1991.

He admitted that brothers of his grandfather had equal share in the house at village Sarhaul. However, his grandfather had made some additions in his portion. It was also true with regard to his father. His father had two brothers. He admitted that his grandfather had distributed his property in three shares. They were three brothers. The share in the ancestral house at village Sarhaul had come to his share. The ancestral house at village Sarhaul had a total covered area of 17001800 sq. yards. Lal Singh had not given his share of house to him at village Sarhaul. He further stated that there were several ancestral houses belonging to his grandfather at village Sarhaul. Further crossexamination of this witness was done on the adjourned date when he stated that he was basically engaged in construction work. However, incidentally sometimes, he did the business of property dealer as well. He admitted that the property dealer business was done in the name of Yadvinder Singh Builde and Promoters. It heard office is in Gurgaon. In the family partition in the year 1979, there was a division of agricultural land also. His father in the said family settlement got five acres of land whereas he could not say as to how much land came to the share of Lal Singh. The said family settlement was between his father and Lal Singh which was held in 1989. In the said family settlement, his father had also given him a share in the land, i.e. land in dispute. His brothers did not get any share in the said settlement for the reason that one of his brothers had joined Air Force and the second one was engaged in business and his sister had since been married. They, however, got share in the other property. His sister was married in 1975 whereas his brother joined Air Force in 1973 and the other brother was having business since 1980. He did not remember date of settlement in the year 1989 but it was August or September, 1989. At that time Lal Singh and his father and his elder brother were present. There was no writing with regard to the family settlement aforesaid. He however volunteered to say that possession of the land was handed over in the year 1989 and at that time also there was no writing. The two plots that were given to Lal Singh did not bear any number as in village such properties do not have any number. Both the plots are located adjacent to each other. One is bounded by a wall whereas other is without any boundary wall. In front of these plots, there is a house of Chandan Singh. In the back of these plots, there is complete Mohalla. Towards the right of the plots aforesaid, there is thoroughfare. In the left also, there is house of Ch. Chandan Singh. He denied the suggestion that these plots were totally nonexistent. He further stated that he had not resided in the village Sarhaul. At the time of oral settlement in 1989 Shakuntla Devi, Vineet and Bharat were not present but when the decree was granted in their favour, they were present. At the time of physical possession to them, Smt. Shakuntla Devi and her sons were present. There had been a settlement between him and his two brothers as well. This was done by a civil court decree, although mutation so far has not been entered. By virtue of this settlement, two brothers had been given half share of the remaining property of their father. He did not remember orally the date when the suit culminating into decree of the suit land was filed but it must be in September/October, 1991. He did not remember as to on what date the court summoned the defendant in that case. He also did not remember as to whether the defendants of the said suit were served through court or not. He volunteered that Shakuntla Devi and her two sons were present with them when the suit was instituted. He did not remember if he was present in Court on October 26, 1990. He denied the suggestion that they made a lady to impersonate Shakuntla Devi on October 26, 1990. The same was his answer with regard to the two sons of Shakuntla Devi and her husband Lal Singh. He did not remember if during the days when the suit was filed and decreed there was an agitation going against the Mandal Commission report. He did not obtain certified copy of the judgment and decree dated October 29, 1990 but he corrected himself by saying that he did obtain a certified copy of the judgment and decree aforesaid. They did not engage any lawyer on behalf of Shakuntla Devi and her sons. However, they themselves engaged a lawyer. They were not in a hurry to get the mutation sanctioned as they were in possession of the land and it was for this reason that the mutation was sanctioned on May 8, 1991. He denied the suggestion that every endeavour to get the file lost was made and it is only when it was lost that they proceeded to get the mutation entered in their favour. At the time of mutation, they did not give certified copy of the judgment but gave copy of decree sheet. Patwari also did not demand from them a certified copy of the judgment. He did not remember as to whether any proclamation was done by the Patwari through Chowkidar with regard to mutation proceedings. They agreed to sell the land that had come to them by virtue of the decree in the year 1991. The agreement was with defendants 2 to 5. The advance received by them was over Rs. 3 lacs. They had received a part of sale consideration, i.e., Rs. 1,12,500/ on May 14, 1991. Likewise, they had got advance money from the prospective vendees, i.e. defendants 2 to 5. They had in one go decided to sell the entire land but for one and half acres. He denied the suggestion that in 1991 Shakuntla Devi and her two sons were in actual possession of the land in dispute and that after the death of Lal Singh, his Samadh was made on the land in dispute. He also denied the suggestion that they had forcibly dispossessed the plaintiffs from the suit land on September 15, 1993 in connivance with the police and revenue officials. He remembered that the stay was vacated by District Judge and Deputy Commissioner but not the date. He did not remember as to whether it was on the same day. The lease with regard to land was executed on January 25, 1993. A caveat was filed on January 27, 1993. However, when the matter was fixed in the court of Hon''ble Mr. Justice J.L. Gupta, he was not present in the Court on that date. He, however admitted that the stay was granted against them on that day. The sale deeds were executed after the District Judge had vacated the stay. He denied the suggestion that the sale deeds were executed after the plaintiffs had obtained stay from the High Court. He admitted that the prospective vendees had the knowledge of the dispute pending between the plaintiffs and him. He did not know if the rate on which he sold the land was less than the Deputy Commissioner''s rates. The sale deeds were confiscated but later the matter was decided in their favour by the authorities. He admitted that Smt. Veena Yadav, who is Bua''s sister, had filed a case against him and at her instance, he was challaned under Section 307 IPC. He, however, stated that it was a false case. He denied the suggestion that judgment and decree had been procured by them by putting fictitious persons styling them as Lal Singh, Shakuntla Devi, Vineet and Bharat. He further denied the suggestion that they deliberately got the records of the case lost from the Court so that ultimately when litigation is lodged by the plaintiffs, there is no proof that the persons put up by them were impersonators. He also denied the suggestion that there was no family settlement between his father and Lal Singh as also the plaintiff. He also denied that far from there being cordial relations between Lal Singh and his father, these were strained as also that his father had never given any financial aid to Lal Singh.

Ram Kumar, an agriculturist, resident of village Nathupur, was examined as DW5. He stated that he knew Lal Singh as also Randhir Singh. Randhir Singh owned a restaurant at Delhi. He did not know the name of the restaurant. However, the papers with regard to that restaurant were with him. This restaurant was mortgaged to him by Randhir Singh in lieu of Rs. 4 lacs in 1989. He was not given back the amount of mortgage. When the money was not returned, he told Randhir Singh that either he should return the money or he should sell the restaurant to him. Randhir Singh sold the restaurant to him and charged Rs. 2 lacs more from him. For this transaction some documents were executed which he had brought with him. One was power of attorney dated June 3, 1993 which was executed by wife of Randhir Singh as Randir Singh had already died. He identified the signatures of Sarla wife of Randhir Singh and placed on record original power of attorney as Ex. DW5/1. When Randhir Singh mortgaged this restaurant with him, the former had told him that he had purchased land from Lal Singh. Insofar as documents with regard to ownership of restaurant are concerned, he had taken all the documents in his possession in 1989 at the time of execution of the mortgage. When crossexamined by counsel for the plaintiffs, the witness stated that he dealt in money lending. He had given loan to many others. However, he had not advanced any loan to anyone to the tune of Rs. two to four lacs except Randhir Singh. Whenever they advanced loan to people, whatever papers were complete, they obtained them, it might be power of attorney or a writing to that effect evidencing therein the payment of loan and the date of return. He further stated that they got the papers executed one or two days after the loan was advanced. He did not have a licence of money lending. At the time he advanced loan to Randhir Singh, no mortgage deed as such was executed. He had taken complete papers of ownership of restaurant from Randhir Singh. It may be mentioned here that exhibiting of powers of attorney, i.e., Ex. DW5/1 was objected to by learned counsel for the plaintiffs. This objection was kept open. The witness further stated that at the time of mortgage as stated by him above, Randhir Singh had given the documents with regard to the ownership of restaurant. In the file that he had brought it contained documents and there was one letter of allotment issued by the Delhi Development Authority, copy whereof was placed on record as Ex. DW5/2. He also placed on record photo copies of documents brought by him and which were handed over to him at the time of execution of mortgage, as Ex. DW5/3 to 5. He had given an amount of Rs. four lac in cash. Out of Rs. four lacs, some money was paid in cash which was lying in house and the remaining was withdrawn from the Bank. The money was withdrawn from the State Bank of India, Kapachera. He did not remember the date when he had withdrawn the amount from the Bank. He had got the money as he had sold the land but he did not remember what khasra numbers the land comprised. It was, however, located at village Nathupura. The land was sold to a company, name of which he did not remember. No one was present at the time of evidencing the payment of Rs. four lac when the amount was paid to Randhir Singh. He had not obtained any receipt in token of having paid the advance money. No document specifically for mortgage was executed as Randhir Singh had promised to return the money within a year. The interest payable by Randhir Singh was at the rate of 2%. He had not obtained specific documents with regard to mortgage as they had good relations and full faith that Randhir Singh would return the loan. The restaurant consisted of two shops. The said shops were of the size of 12''x12'' Again said 12''x20''. The price of the restaurant was between six lacs to seven lac of rupees in 1993. The shops were fully constructed. He, however, could not say as to who was living around the restaurant in question. The power of attorney was prepared in the name of his brother. Both the brothers were living together. He had paid the money but they, i.e., two brothers, had complete faith in each other. He further stated that they had got only the power of attorney prepared and no other documents as they had complete faith in Randhir Singh and they were sure that he would not back out from his promise. No receipt was obtained by them when they paid further amount to Randhir Singh. He did not know Harinder Singh and Kanshi Ram. So was his answer regarding Atul Nibre and Jaggi. He stated that he had come to depose in Court having been brought by Yadvinder Singh. He denied the suggestion that he had not paid any amount to Randhir Singh nor had taken any property on mortgage from him. He further denied the suggestion that on the area mentioned in the power of attorney, no restaurant existed and that he was deposing falsely.

Defendants examined Harinder Pal Singh as DW6. He is one of the purchasers of the land in dispute. He stated that he had purchased the part of the suit land from Yadvinder Singh. He had purchased a share in the land measuring 26 kanals 1 marla. It should be about 1/4th share of the total land, subject matter of dispute. Before he purchased the land, he checked up both the decrees as also jamabandis pertaining to the land in dispute and verified that owner of the land was Yadvinder Singh. He did not approach any revenue officer in writing but he did go to a revenue officer who was known to him. He had possession of the land on papers but his cousin Amarjit Singh was in actual physical possession of the land. Amarjit Singh is a lessee over the land in question. He has got lease for 99 years. The possession was delivered to them at the time of registration of the sale deed. In the crossexamination adverted to him by defendant No. 1, he stated that his cousin Amarjit Singh had introduced him to Yadvinder Singh. At the time he struck bargain for purchase of land, he had seen the land and the same was in possession of Yadvinder Singh. Before he purchased the land, he enquired about the price prevalent at that time from the people known to him as also from the property dealers. Price of the land at that time measuring 26 kanals 1 marlas was about 8 lac of rupees and it is on that consideration that he had purchased the land. He further stated that he had paid an amount of Rs. 1.12 lac at the time of agreement which was executed in 1991. An amount of Rs. seven lacs was paid at the time of execution of the sale deed before the sub Registrar in January, 1993. When crossexamination by Mr. Harsh Aggarwal, counsel for the plaintiffs, this witness stated that he knew Yadvinder Singh since 1991. He did not remember the exact date when he had given an advance of lac of rupees to Yadvinder Singh but it was in May, 1991. He had seen the records even at the time when he had paid the earnest money to Yadvinder Singh. To a specific question put to him that in May, 1991, in revenue record Shakuntla Devi and her sons were shown to be owners of the suit land, he replied that the person whom had consulted at that time had told him that the land was in the name of Yadvinder Singh. To a court question as to whether it was a fact that at that time he had not seen the revenue records himself, he stated that he had not seen the revenue records himself and had relied upon his cousin. In the further crossexamination done by counsel for the plaintiffs, he stated that the Patwari, whom he had contacted at that time was Ranjit Singh. An advance of Rs. 1.12 lac was given by him in cash in May to his cousin Amarjit Singh, who in turn paid to Yadvinder Singh. The money was lying with him. He did not know as to when Lal Singh died and as to when the land was mutated in favour of Yadvinder Singh. He had no idea about the litigation pending between Shakuntla Devi and her children on the one side and Yadvinder Singh on the other. The reason of getting the sale deed registered after about 3 years, as stated by this witness, was that he was fully depending upon his cousin Amarjit Singh and he had not felt necessity of hurrying up the matter. He, however, used to enquire from his cousin with regard to sale of land and he was always telling him that it would be done and there was no necessity to panic. He was not aware as to whether the District Judge had vacated the stay on January 23, 1993 which was earlier granted in favour of the plaintiffs. He further stated that his cousin had taken lease for 99 years and he did not remember if the sale deed was registered on January 29, 1993. He had no idea either that the High Court had granted stay on January 27, 1993. He also had no idea as to whether the Deputy Commissioner had vacated the stay on January 23, 1993 which was earlier granted in favour of the plaintiffs. The entire matter was being handled by his cousin. At the time of registration of the sale deed, he was not present. Representative of his cousin had signed the sale deed before the Sub Registrar. His representative had signed of his own. He did not know if his representative had power of attorney from him. An amount of Rs. seven lacs was paid in cash. He had collected that money from his Commission Agent at representative had power of attorney from him. An amount of Rs. seven lacs was paid in cash. He had collected that money from his commission Agent at Delhi. The money was then got arranged to be sent. Since his income tax affairs are handled by his father, it is he who would be able to say as to whether this amount was shown in his income tax return or not. He admitted that the land is surrounded by DLF Colony Phase 11. He could not say that the Deputy Commissioner''s rate per acre at that time was Rs. five lacs. He denied the suggestion that all through he knew that this property was under litigation and it is for this precise reason that no sale deed was executed for a couple of years. He also denied the suggestion that no money was paid while purchasing the land as also that no bargain was struck by him for the purchased land. DW7 Rattan Singh, MHC of Police Station City Gurgaon, stated that he had brought the summoned record. Vide FIR No. 723 dated December 24, 1993 a case under Section 380 IPC was registered and after investigation of the matter, the case was sent as untraced. Vide FIR No. 528 dated 22.7.1991 a case under Sections 420/467/471 IPC was registered. However, on investigation, this FIR was also cancelled and the investigating officer had recommended registration of a case under Section 182 Cr. P.C. against plaintiff Shakuntla Devi. At this stage the statement of this witness was seriously objected to by counsel appearing for the plaintiffs on the ground that the witness had deposed with regard to certain facts which were sought to be incorporated in the written statement by amending the same and the application moved on that count was rejected by the Court. Objection was kept open to be decided at the time of final arguments. When crossexamined by the plaintiffs, this witness stated that FIR No. 528 dated July 22, 1991 was lodged by Smt. Shakuntla Yadav and he could not say as to on what date an application was filed by her on the basis of which FIR aforesaid was registered. The case registered vide FIR No.528 dated July 22, 1991 was partly investigated by Raghbir Singh, ASI and partly by Abhay Singh, SHO. He could not say as to who had lodged the complaint resulting into registration of a case pertaining to FIR No. 723, dated December 24, 1993. It was, however, forwarded by the District and Sessions Judge, Gurgaon, on December 24, 1993. In the records that he had brought that day the original application filed pertaining to FIR aforesaid was not available. He further stated that the matter was investigated by Gurcharan Singh, ASI. He admitted that FIR No. 723 was registered on the matter having been initially referred to by the High Court to the District and Sessions Judge, who in turn, had referred the matter to the police station. The FIR aforesaid was filed as untraced on May 26, 1994 by the orders of the SHO. The report for cancellation of the FIR aforesaid was sent to the Ilaqa Magistrate as it is to whom the said reports are addressed and not to the Sessions Judge.

Besides leading oral evidence, that has been referred to above, parties have also led documentary evidence. It may be mentioned here that learned counsel for the parties made a statement on April 19, 1993 that they did not want to examine any other witness even after the amendment of the plaint as the evidence already brought on records was sufficient to determine the controversy in issue.

A brief mention of the documentary evidence led by the parties is being made here but if any document requires to be dealt in detail, the same shall be done while considering the contention of learned counsel for the parties. Ex P1 is the report given by Y.P. Adhlakha, PW1. This report is with regard to assessment of fair market value of the residential house situated at village Sarhaul. Ex P2 and P3 are attached with the report aforesaid as Annexures A and B. The value of the house has been stated to be Rs. 2,93,03920. Ex. P4 is a plan of the house belonging to Lal Singh situated at village at Sarhaul. Ex. PW3/2 is a letter dated November 5, 1990 addressed to Lal Singh by the Director, Town and Country Planning, Haryana. This relates to the request of Lal Singh with regard to change of land use. Ex. PW3/3 is letter dated April, 11, 1990 addressed to the Director, Town and Country Planning by Lal Singh Yadav. This is with regard to request of Lal Singh to sanction scheme while permitting change of land use. Ex. PW3/4 is letter dated January 15, 1991 addressed to Lal Singh by the Director, Town & Country Planning conveying his decision that the proposed site does not conform to the planning proposals of the controlled area, Gurgaon. Ex. PW4/1 to 12 are the receipts and telephone bills Ex. PW6/1 to 6 are electric bills and receipts Ex. PW5/1 is DDR No. 19 dated July 22, 1991 under Sections 420/467/471 IPC. Ex. PW7/1 is the enquiry report given by the District Judge (Vigilance), Haryana dated November 30, 1993. Ex. PW8/1 is the pedigree table whereas Ex. PW8/2 is the decree of Vineet Yadav of Mechancal Engineering granted to him in the year 1992. Ex. PW9/1 is a judgment in Criminal Case No. 32 of 1991 decided on February 9, 1991 which was registered against Yadvinder Singh and another under Sections 307/34 IPC and 27 of the Arms Act, Ex. PW9/2 is the degree sheet pursuant to judgment rendered by Sh. A.D. Gaur, Sub Judge IIIrd Class, Gurgaon, subject matter of challenge herein. Ex. PW9/3 is the mutation that was sanctioned pursuant to decree aforesaid, Ex. PW9/4 is the judgment rendered in Civil suit No. 390 dated 30.10.1985 decided on February 22, 1991 titled as Balbir Singh v. Lal Singh. The suit instituted by Balbir Singh which was for possession of land measuring 5 kanals 5 marlas in the partition dispute between Balbir Singh and Lal Singh, was dismissed. Ex. PW9/5 is a mutation pursuant to the judgment aforesaid. Ex. PW9/6 is jamabandi of the year 198687. Ex. PW7 to 9 are the Khasra Girdawaris. Ex. PW10 and 11 are also letters written by Lal Singh and which were addressed to Director, Town and Country Planning. These letters have been exhibited twice over and mention of these letters has already been made. Ex. PW9/12 is an order granting stay in CWP No. 2377 of 1993 dated March 5, 1993 whereas Ex. PWq/13 is an interim order of the Division Bench in the writ petition, referred to above dated October 11, 1993. Ex. PW11/1 is once again the disputed mutation. This document has also been exhibited twice over.

Ex. DW2/1 is the decree that was obtained by State Bank of India against M/s Yadav Tractors. Same is dated February 9. 1995. Ex. DW2/2 is a judgment followed by decree Ex. DW2/1. DW5/1 is general power of attorney executed by Sarla Yadav widow of Randhir Singh in favour of Ram Kumar. No date is mentioned in the body of this document but in the endorsement of the Sub Registrar 3.6.1993 is mentioned. Ex. DW 5/2 is a copy of allotment letter vide which Randhir Singh was asked to report at site on November 26, 1987. It appears that this was issued on November 12, 1987, even though 1987 as such has not been mentioned. Ex. DW5/3 is a draft drawn in favour of Andhra Bank which was payable to Delhi Development Authority. DW5/4 to 7 are the telephone bills issued to Smt. Shanta Uppal, Sarv Priya Vihar, New Delhi. Ex. DW5/8 is receipt issued to Randhir Singh in the sum of Rs. 200/ on account of security. Ex. DW5/9 to 22 are documents pertaining to property of Radhir Singh, said to have been mortgaged to DW5 Ram Kumar. Ex DW7/3 is a sale deed executed on January 27, 1993 by Yadvinder Singh in favour of Jaggi son of Rattan Lal.

As a prelude to commutes to be made on the issues that have been framed, some important aspects of the case need a necessary mention. The first important aspect of the case is the proceedings in the suit culminating into impugned judgment and decree. It may be mentioned here that original record having been lost, the civil court file was reconstituted. The suit filed by Yadvinder Singh against Lal Singh, Bharat Singh, Vineet Kumar and Shakuntla Devi, it appears, was instituted on October 15, 1990, i.e., the date mentioned in the plaint. The plaintiff had averred that he was owner in possession of agricultural land according to jamabandi for the year 198687. The details of the land were given in para 1 of the plaint. It is then mentioned that the land in suit devolved upon defendants 2 to 4 from defendant No. 1 who is uncle of the plaintiff. Fathers of the plaintiff and defendant No. 1 are real brothers. Para 3 of the plaint, which has crucial bearing, reads thus :

"3. That in a family settlement the land in suit fell to the share of the plaintiffs and a double storey building and two residential plots were already given to the defendants in lieu of their shares. The said family settlement was affected between the parties in the year 1989 and the plaint is in exclusive possession of the land in suit since then and defendants have left no right, title or interest in it. The said family settlement was for benefit and advantage and for good relation between the parties."

It is then pleaded that the plaintiff has become owner in possession of the suit land and defendants were left with no right, title or interest in it but in the revenue record, the defendant is continued to be shown as owner in possession of the land in suit. Plaintiff requested the defendants. several times to admit the claim of the plaintiff and get the revenue record corrected in his favour but the defendants delayed the matter and refused to do so on or about 10.10.1990 on which date cause of action had accrued. In the averments, referred to above, plaintiff prayed for a decree for declaration to the effect that he is owner in possession of the suit land mentioned in para 1 of the plaint; and the defendants had no right, title or interest in it. The consent written statement was filed on October 26, 1990 i.e., ten days after the suit was instituted. The zimni orders reveal that the matter was put up before the Court on October 16, 1990 when court fee was found to be correct and after perusal of the office report, suit was ordered to be checked and registered. Defendants was summoned for December 10, 1990 on filing of process fee, copies of plaintiff and duly filled in summons within three days. Interim order dated October 26, 1990 reveals that the file was taken up on the application of the defendant and written statement admitting the claim of the plaintiffs was filed. Statement of the parties was recorded and the matter was put up for consideration on October 29, 1990, Interim order dated October 29, 1990 shows that the arguments were heard and vide separate judgment of even date, suit of the plaintiff was decreed without costs and file was ordered to be consigned to record room. A joint statement of Lal Singh, Bharat Singh, Vineet Kumar and Smt. Shakuntla Devi was recorded. It purports to bear the signatures of the defendants and their lawyer Mr. R.S. Saini, Advocate. Interim order does not show as to on what date this statement was recorded. The statement, however, reads that the defendants had filed consent written statement. They had heard and understood the plaint which was correct and should be decreed. Parties were to bear their own costs. Statement of counsel for the plaintiff Shri M.K. Chauhan, Advocate was recorded after the statement of defendants was recorded. He stated that he had heard the statement of defendants and that the suit should be decreed and the parties be left to bear their own costs. The impugned judgment and decree was passed on October 29, 1990 by Sub Judge IIIrd Class, Gurgaon. It may be mentioned here that the file of the Civil Suit was reconstituted by a Subordinate Judge on the directions of the District Judge, Gurgaon.

The other important aspect of the case is enquiry report submitted by the District Judge (Vigilance), Haryana dated 30.11.1993. Before some parts of the enquiry report are mentioned or commented upon, it may be mentioned here that the evidentiary value of this report shall be discussed and opinion shall also be expressed as to what extent this report is admissible at the relevant time. The above said enquiry was made pursuant to directions issued by Hon''ble Mr. Justice S.S. Sodhi, as he then was. The file, to the extent the same was possible, has been reconstructed by Shri C.L. Mohal, Sub Judge, Gurgaon and a report dated June 3, 1992 in this respect was sent to District Judge, Gurgaon. Shri Deepak Gupta, Sub Judge, Gurgaon later submitted a report on August 11, 1993 and held that there was collective responsibility for loss of file to be shared by the Record Keeper, two Deputy Record Keepers and two record lifters, who were, during the said period and particularly Smt. Urmila Saini, responsible for managing the record of the area. The enquiry conducted by the District Judge (V) Haryana, disclosed following glaring things regarding the whole matter :

"(i) In spite of theft of judicial record detected in the fist week of July, 1991 no report of theft of the judicial record has been lodged with the police till today.

(ii) That the enquiry ordered by the learned District and Sessions Judge, Gurgaon was firstly entrusted to Shri N.P. Dewat, Subordinate Judge, Gurgaon and on his transfer, to Shri Deepak Gupta, Sub Judge, Gurgaon, Shri N.P. Dewat, took about sixteen months in recording statements of eight witnesses. Shri Deepak Gupta took about five months in recording statements of two witnesses and submitting the two enquiry reports. The entire job could have been completed in two or three hearings.

(iii) Shri Yadvinder Singh plaintiff had brought collusive suit No. 1588 of 1990 titled ''Yadvinder Singh v. Lal Singh and others" only against Lal Singh, Shakuntla Devi, Bharat Singh and Vineet Kumar without impleading Sharad Yadav, another son of Lal Singh and Shakuntla Devi, in the writ petition No. 377 of 1992 filed by Shakuntla Devi and others, the writ petitioners 2 to 4 Bharat Singh, Vineet Kumar and Sharad Yadav claimed themselves to be minors. Shakuntla Devi along with her three sons Bharat Singh, Vineet Kumar and Sharad Yadav have filed civil suit No. 386 of 1991 on July 6, 1991 for setting aside the judgment and decree obtained in civil suit No. 1588/1990. The said suit has been brought with the allegation that Sharad Yadav, plaintiff No. 4 is a minor aged about 16 years and that the judgment and decree obtained in civil suit No. 1588/1990 was procured through fraud played on the court. The said civil suit No. 386/1991 was instituted on 6.7.1991 during the summer vacation and was represented before the Additional Sessions Judge, Gurgaon, who was a vacation Judge, issued ex parte injunction restraining the defendant from alienating the suit property in any manner or creating encumbrances over it. After the summer vacation, the suit was entrusted by Senior Sub Judge, Gurgaon to Shri B.R. Aggarwal, Subordinate Judge, Gurgaon. The defendant had put in appearance through his counsel on 25.10.1991. The written statement was filed on 8.11.1991. The issues were framed on 18.1.1992. The application for ad interim injunction was dismissed on 29.10.1992 by Shri R.S. Baswana Sub Judge, Ist Class, Gurgaon. The Civil Appeal No. 217/1992 preferred against the said order was dismissed by Shri A.S. Garg, District & Sessions Judge, Gurgaon, on 23.1.1993. A.S. Garg, District Judge Gurgaon through his administrative orders had withdrawn the said civil suit from the court of Shri R.S. Baswana and transferred the same to the Court of Senior Sub Judge, Gurgaon for disposal. The civil revision No. 339 of 1993 preferred against the said civil misc. appeal was also dismissed by Hon''ble Mr. Justice J.L. Gupta vide orders dated 21.4.1993.

The vendees S/Shri Harinder Singh, Jaggi, Atul Nibar and Kanshi Ram who had purchased the suit land during the litigation moved an application on 21.7.1993 under order 1 rule 10 CPC for being impleaded as parties and their request was allowed on 18.10.1993. The case was adjourned on 28.10.1993 for filing amended title. On 28.10.1993 amended title was not filed and the Senior Sub Judge, Gurgaon adjourned the case to 14.12.1993.

(iv) The subject matter of the dispute is a precious piece of land worth crores of rupees, situated in the heart of prestigious Urban Estate Complex of DLF Qutab Enclave, Part II, Gurgaon on the DelhiHaryana border. Shri R.S. Saini, Advocate, who had put in appearance on behalf of the defendants in civil suit No. 1588/1990 has not admitted the identity of Shakuntla Devi and others if they were the persons who had engaged him and made consenting statements.

The third important aspect of the case is as to whether the plaintiffs and defendant No. 1 constituted joint Hindu family in which there could be legitimate property disputes that might have been settled between them. The word ''family'' in the context is not to be understood in a narrow sense of being a group of persons whom the law recognises as having a right to succession or having a claim to a share in the disputed property. The consideration for a family settlement is the expectation that such a family settlement will result in establishing or ensuring amity and goodwill amongst the relations./ The disputants may, therefore, not be the ones who have direct right of succession. But amongst themselves, they must have some right which may require settlement. In other words, if a disputant who claims himself to be a member of the family, has not even a remote chance of succession, he cannot be said to be a member of the family and therefore, there cannot be any question of settlement of dispute between such a member of the family and those who have only right of succession. The Apex Court in Kale v. Deputy Director of Consolidation and others, AIR 1976 SC 807 has held that the members who may be parties to the family arrangement must have antecedent title, claim or interest, even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same.

The time is now ripe to give issuewise findings. Before, however, on the vital issues, findings are returned, it will be more appropriate to discuss and consequently return findings on issues which have been framed on account of legal objections raised by the defendants.

ISSUES 7 AND 8 :

Whether the plaint has been properly valued for the purpose of court fee and jurisdiction ?

Whether the suit praying for a decree for declaration without asking for consequential relief of possession is incompetent ?

Insofar as issue No. 7 is concerned, the onus to prove this issue was on the defendants. No arguments at all have been raised by learned counsel for the defendants to prove that the plaint has not been properly valued for the purposes of court fee and jurisdiction. It may, however, be recalled that initially, the plaintiffs had filed a suit for declaration with consequential relief of permanent injunction. After amending the plaint, besides seeking a decree for declaration to the effect that the impugned judgment and decree obtained by defendant No. 1 was illegal, non est, void etc, the relief for restoration of possession was also added. On the amended plaint, court fee of Rs. 100/ has been paid. Prayer has also been made to declare the sale deeds or any other document/deed which may have come into existence after the filing of the suit to be illegal, null and void, not adversely affecting the rights of the plaintiffs in any manner. It appears, learned counsel for the defendants being conscious of the fact, that if the impugned judgment and decree is held to be void, on the grounds specified in the plaint and in particular, that the plaintiffs were not party to the suit, nor had suffered any consent statement, nor had filed consent written statement and in fact, imposters were made to represent the plaintiffs, have not pressed the issue under consideration. They also appear to be conscious of the fact that the aftermath of the impugned judgment and decree, i.e., sale deeds or any other document that might have encumbered the land, would naturally sink if the findings on the main issues are returned in favour of the plaintiffs, particularly when such document came into being after defendant No. 1 was injuncted in the present suit itself so as not to encumber the suit land in any manner, have further not insisted upon the plaintiffs to pay ad valorem court fee. This issue, i.e., Issue No. 7, is thus decided in favour of the plaintiffs and against the defendants.

Onus to prove issue No. 8 was also upon the defendants and the said issue has also not been pressed at all. No arguments have been raised on the issue by learned counsel for the defendants. Once again, it appears to this Court that initially as well, consequent upon setting aside of the impugned judgment and decree, a prayer for permanent injunction was made whereas now after the amendment of the plaint, on setting aside of the impugned judgment and decree as also sale deeds etc., a decree for possession has also been prayed for. It is, thus, not a case where a simpliciter suit for declaration right have been filed. Finding on this issue is, thus, also returned in favour of the plaintiffs and against the defendants.

ISSUE No. 6 :

"6. Whether the present suit challenging the compromise recorded in Court is barred under Order 23 Rule 3A CPC ?"

Insofar as facts of this case are concerned, the same have been very elaborately dealt in the earlier part of the judgment. Suffice it to say that Yadvinder Singh defendant No. 1 filed a suit for declaration on October 15, 1990 which was registered on October 16, 1990. Even when the case was adjourned to a later date, i.e., December 10, 1990, file was taken up on the application of the defendant. The written statement admitting the claim of the suit was filed and as per interim order dated October 26, 1990 statement of the parties was recorded. The matter was adjourned to October 29, 1990 when the impugned judgment and decree was passed. Before the provisions of Order 23 Rules 3A are noticed, it shall be useful to scan through the provisions of Order 23 Rule 3 CPC which deal with a compromise in suit. The said rule with its proviso and explanation reads thus :

"3. Compromise of suit : Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit :

Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.

Explanation : An agreement or compromise which is void or voidable under the Indian Contract Act, 1872, shall not be deemed to be lawful within the meaning of this rule."

Rule 3A restrains a party in filing a suit to set aside the decree on the ground that the compromise on which the decree is based was not lawful. Before Rule 3A might be attracted, the prerequisites of the compromise in a suit as provided in Order 23 Rule 3 have to be satisfied. There has first to be satisfaction of the Court that the suit has been adjusted wholly or in part by lawful agreement or compromise in writing and signed by the parties (emphasis supplied) or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court, on satisfaction referred to above, shall order such agreement, compromise or satisfaction to be recorded and then proceed to pass a decree in accordance therewith insofar as it relates to the parties to the suit. (emphasis supplied). If these two conditions have been satisfied, the suit has to be decreed, whether or not the subject matter of agreement, compromise or satisfaction is the same as the subject matter of the suit. The proviso to Order 23 Rule 3 further makes it clear that where it is alleged by one party and denied by the other, that an adjustment or satisfaction has been arrived at, the Court shall decide the question. The explanation appended to the said rule further makes it clear that any agreement or compromise which is void or voidable under the Indian Contract Act, 1872 shall not be deemed to be lawful within the meaning of this rule.

It is conceded between the parties that before the impugned judgment and decree was passed there was no written agreement or compromise that might have been signed by the parties. As mentioned above, on an application, said to have been given by defendant, in the said suit, case file was taken up and a consent written statement is said to have been filed by the plaintiffs herein. The first prerequisite of Order 23 Rule 3 CPC was missing. Assuming, no written agreement or compromise was required, before a decree could be passed, the decree could be passed only against the party to the suit. If it is proved in a particular case, as is the assertion of the plaintiffs in the present case as well, that they were parties only in print and not in reality and in fact imposters were produced in the Court, surely, they cannot be termed as party to the suit at all. Further, it is herein being alleged and that too vociferously that there has been no agreement, compromise or adjustment between the plaintiffs and defendant No. 1. In such an event, proviso attached to Order 23 Rule 3 CPC clearly enjoins upon the Court to decide such a question, be it by an application in the same suit or by way of separate suit. Assuming, the plaintiffs were partydefendants in the suit culminating into the impugned judgment and decree, if they were still to show that the agreement or compromise arrived at between them and defendant No. 1 was void or voidable under the Indian Contract Act, same was not to be taken to be lawful within the meaning of the said Act. It is settled proposition of law that a decree which is an outcome of a compromise or settlement is nothing more than a contract between the parties superimposed by the seal of court and same can be set aside on any ground a contract can be set aside. In the scenario as is available before this Court, if the plaintiffs are able to prove that the alleged compromise or agreement was void or voidable, Rule 3A of Order 23 CPC would not come into play at all. The bar to file a suit pertains to a decree which is an outcome of compromise and the said compromise is lawful. There cannot be any bar to institute a suit challenging a decree which proceeds on the basis of a compromise which is unlawful. Faced with so many hurdles in applying Rule 3A, counsel representing the defendants had to abandon this argument when it had not been taken even half way through, i.e. only after reading of Order 23 Rule 3 and 3A CPC, no further arguments were raised on this issue.

In view of the discussion made above, this Court unhesitatingly returns a finding on issue No. 6 in favour of the plaintiffs and against the defendants.

ISSUES 3 AND 5 :

"3. Whether the plaintiffs are estopped by their own act and conduct from filing the suit ?

Whether the suit of the plaintiffs is mala fide and has been brought with ulterior motive to blackmail defendants 2 to 5 ?"

The findings on these issues concededly are dependent upon the crucial issues, i.e. Issues 1 and 2. If the impugned judgment and decree turns out to be an outcome of fraud, concealment of real facts and, therefore, illegal and void, surely the plaintiffs have every right to challenge the same and in filing the present suit, they can only be said to be endeavouring to protect their civil rights. They cannot as such be estopped from filing the suit. Further, if the plaintiffs are able to prove issues 1 and 2 in their favour, by no stretch of imagination, the suit of the plaintiffs can be said to be mala fide and brought about with ulterior motive to blackmail defendants 2 to 5. The findings on these issues would, thus, turn on the basis of findings returned on issues 1 and 2. It is, therefore, held that in case issues 1 and 2 are decided in favour of the plaintiffs, these issues shall also be decided in their favour and against the defendants. Vice versa shall also be true.

ISSUES 1 AND 2 :

"1. Whether the plaintiffs are the owners in possession of the suit land ?

Whether the judgment and decree dated 29.10.1990 passed in suit No. 1588 of 1990 are illegal, null and void ?"

These are the issues on which learned counsel for the parties have endeavoured to focus attention of this Court. As mentioned above, there have been hardly any arguments on the legal issues discussed above and full throttled arguments have been addressed on these issues and to some extent on issue No. 4 which shall be separately dealt with.

Plaintiffs were owners in possession and so was Lal Singh, husband of plaintiff No. 1 and father of other plaintiffs, of the suit land, before passing of the impugned judgment and decree. Inasmuch as there is an admission on the part of defendant No. 1 not only emanating from his statement made in this court as also from the plaint of the suit culminating into impugned judgment and decree, there is no need at all to further discuss issue No. 1. Suffice it to say that the revenue record in the shape of Jamabandis and Khasra Girdawaris do support the contention of the plaintiffs that they along with Lal Singh were owners in possession of the suit land. As to whether they continue to be so, shall obviously depend upon decision of issue No. 2.

Issue No. 2 dealing with authenticity or otherwise of the impugned judgment and decree has many facets, both legal and factual. On law, the case of the plaintiffs is that there could not be any family settlement between the plaintiffs and Lal Singh on the one side and Yadvinder Singh and his father, on the other. Neither father of defendant No. 1 nor the said defendant himself had even a remote right of succession. Even in case all the plaintiffs were to die, the property being not ancestral in nature, having been partitioned, could not have gone to either the father of defendant No. 1 or Yadvinder Singh himself. Defendant No. 1 had, therefore, neither remote nor antecedent right of succession. It is the first plank of argument of learned counsel for the plaintiffs, who further pleads that in case plaintiffs and Lal Singh did not constitute any Joint Hindu Family and once defendant No. 1 could not possibly had any right of succession to the property in dispute, there could not be any family settlement inter se parties. The second contention raised with equal vehemence is that the contents of the plaint culminating into the impugned judgment and decree did not amount to any family dispute and settlement thereof. At the most, it was an exchange of properties between defendant No. 1 and his father on the one side and plaintiffs and Lal Singh on the other. The plaintiffs were to get two vacant plots located in village Sarhaul as also a joint ancestral house in village Sarhaul and in lieu thereof, defendant No. 1 was to get the entire land subject matter of dispute and owned and possessed by the plaintiffs and Lal Singh. This being therefore a case of out and out exchange, could not successfully be put through as a family dispute and settlement of the said dispute, vehemently contends the learned counsel. The exchange, it is further the contention of learned counsel, could not be recognised by the civil Court decree. The law of registration could not be avoided and even if, therefore, it may be proved that the plaintiffs and Lal Singh did sign the consent written statement and suffered a statement in favour of defendant No. 1, the decree is still void being forbidden by law as contemplated under Section 23 of the Indian Contract Act. On facts, it is argued with great vehemence that the plaintiffs and Lal Singh never suffered a decree. Defendant No. 1 simply with a view to grab the property of plaintiffs and Lal Singh filed a suit based upon nonexistent facts and by producing imposters before the court, obtained the impugned judgment and decree in his favour. He kept the judgment and decree as close guarded secret for long time and the time. between passing of the decree and sanctioning of the mutation was utilised to destroy the records of the civil suit filed by him with an obvious motive that when this decree is challenged, the plaintiffs are not able to prove that consent written statement and other documents etc. were not signed by them, i.e. Lal Singh and plaintiffs. Defendants have joined issues with the plaintiffs on all the points, referred to above. Their contention is that the plaintiffs and Lal Singh constituted a Joint Hindu family with defendant No. 1 and his father and there were simmering disputes between the parties inter se which could be the subject matter of family settlement culminating into impugned judgment and decree. It is then argued that the contents of the plaint do reveal family dispute capable of settlement as also that a settlement required no compulsory registration. On facts, it has been endeavoured by learned Counsel for the defendants to show that on a properly instituted suit, plaintiffs and Lal Singh asked for preponement of the date on an application made by them, filed consent written statement as also suffered statements before the Court. In fact, the plaintiffs are instrumental in getting the judicial file misplaced simply with a view to wriggle out of the consent decree voluntarily suffered by them.

This Court has given its anxious thoughts to the controversy in hand and would first like to deal with the plea of the plaintiffs that they never appeared before the Court nor made any statement nor filed any consent written statement and some else was made to appear posing to be plaintiffs and Lal Singh and that time was utilised by defendant No. 1 to destroy the judicial records of the case culminating into impugned judgment and decree. If on this crucial aspect of the case the finding is returned in favour of the plaintiffs, it shall not be very necessary to deal with other aspects of the case, even though the present is a case that the Court could still like to comment upon the other aspects as detailed above.

The manner in which the suit was filed and decree obtained has already been detailed. To reiterate, the plaint of the suit titled Yadvinder Singh v. Lal Singh etc. is dated October 15, 1990. It was put up before the Court on October 16, 1990 and defendants i.e., plaintiffs herein and Lal Singh, were ordered to be summoned for December 10, 1990. File was, however, taken up on October 26, 1990, i.e., ten days after the suit was instituted. The zimni order does mention that file was taken up on the application of the defendant. The application for taking up the case on an earlier date is, however, not available in the reconstituted records of the case. Written statement admitting the claim of the plaintiff i.e., Yadvinder Singh is said to have been filed. It is also mentioned in the interim order that the statements of the parties were recorded. The matter then came up for hearing on October 29, 1990 when the suit was decreed. The joint statement of Lal Singh and plaintiffs, i.e., Bharat Singh, Vineet Kumar and Smt. Shakuntla Devi was recorded. Under the caption ''RO&AC'' it is mentioned that the defendants and counsel signed the statement. No date is, however, available as to when this statement was signed. The statement of Shri M.K. Chauhan, Advocate, learned counsel for plaintiff in that suit was then recorded and it has been signed by him only and not by Yadvinder Singh. As mentioned above, not only that the record was reconstituted to an extent it was possible, on the orders passed by S.S. Sodhi. J. as he then was, District Judge (V), Haryana, was appointed as an Enquiry Officer to report about the loss of record of civil suit No. 1588 of 1990 titled as Yadvinder Singh v. Lal Singh and others. Whereas, the counsel representing the plaintiffs wants to draw support from the report, Ex. PW7/1 to fix responsibility of Yadvinder Singh in making the judicial file to disappear, learned Counsel for defendant No. 1 vehemently contends that in the said report, Yadvinder Singh was not heard and, therefore, this report cannot be taken into consideration at all in determining the issue as to whether no consent written statement was filed by the plaintiffs and Lal Singh or that Yadvinder Singh had made the file to disappear. I accept this contention of learned Counsel for defendant No. 1. This report cannot be relied upon to decide the crucial issue, referred to above, as concedely Yadvinder Singh was not heard before the report was given. It may be mentioned, in passing, however, that some observations have been made by the District Judge (V), Haryana which tend to show that the plaintiffs and Lal Singh had not suffered the decree and that Yadvinder Singh had got the judicial file destroyed. No findings as such have been recorded by District Judge (V), Haryana but from some observations made by him, an inference can be drawn. Be that as it may, as mentioned above, this Court shall not rely upon the observations made by the District Judge (V), Haryana, and would rather like to endeavour to evaluate the evidence, as has been led in this Court to come to the conclusion on the issue debated above. One thing, however, has to be accepted and that is that insofar as report Ex. PW7/1 is concerned, the same has to be relied upon to the extent that the judicial file culminating into impugned judgment and decree is not available and that the record of the case was reconstituted on the orders passed by the District Judge, Gurgaon by a Subordinate Judge and other allied matters. To that extent even the defendants do not differ. It is their case also that the judicial file has been lost and records reconstructed.

I have given my anxious thought to the core issue and am of the view that the same has to be decided upon preponderance of evidence coupled with circumstantial evidence. No direct evidence of loss of file at the instance of a particular person is available. No direct evidence that the plaintiffs and Lal Singh did sign or not, the consent written statement or made statement before the court, is also available. Circumstantial evidence coupled with bare minimum accepted facts sometimes becomes so strong that a positive finding can be returned on the basis thereof. Proverbially, it is said that men may lie but the circumstances do not. The present appears to be a case where circumstantial evidence coupled with bare minimum facts are such that they lead to one and the only one inference that plaintiffs and Lal Singh did not appear before the Court, never filed consent written statement and as such never suffered a decree. The circumstances once again lead the Court to return a positive finding that it is Yadvinder Singh alone who could be instrumental in getting the judicial file misplaced, although with the active connivance of the Court officials.

The suit, as referred to above, was registered on October 16, 1990. It was adjourned to December 10, 1990 for which date the defendants in the said suit were to be served on filing of process fee etc. No process fee was filed and, thus, no summons issued and the suit is stated to have been taken up for hearing on October 26, 1990. Interim order reveals that the case was taken up for hearing on the application filed by defendant. As to which of the defendants filed such an application, the interim order does not make it clear. While reconstituting the judicial file, lawyers of both the sides were examined. Their briefs were taken into possession. The application said to have been moved by the defendant is not available in the reconstituted records of the case. In this scenario, the plaintiffs could not be called upon to prove something in negative. As mentioned above their case has throughout been that they never engaged any lawyer, never appeared in the Court, never filed written statement and never made any statement before the Court. If stand of defendant No. 1 was to be otherwise, and it is otherwise, it is he who had to show by leading evidence that he had engaged a particular lawyer for filing the suit and that the defendants too had engaged a lawyer. It is interesting to note that far from producing the counsel who is said to have represented the plaintiffs and Lal Singh, even the counsel who was engaged by Yadvinder Singh has also not been produced in the witness box. In the absence of direct evidence, i.e., signatures of plaintiffs and Lal Singh being available on the judicial file, the second best evidence was of the lawyers who were engaged by the parties. The best evidence as available to defendant No. 1, has, thus, been intentionally withheld leading to an irresistible inference that if these lawyers were to be produced, they would have deposed against Yadvinder Singh. It is significant to mention here that R.S. Saini, Advocate, counsel said to have been engaged by plaintiffs and Lal Singh in the civil suit culminating into impugned judgment and decree, had appeared before the learned Subordinate Judge in the proceedings for reconstructing the Judicial file. He made a statement that he did not know plaintiffs and Lal Singh personally on whose behalf he had given consenting written statement. He did not recollect as to who had come to engage him. As mentioned above, not only that the lawyer representing the plaintiffs and Lal Singh was not produced in the witness box, defendants felt shy of even producing in the witness box the counsel representing Yadvinder Singh. Nonproduction of even counsel for Yadvinder Singh in the said suit, in the witness box, clearly leads to an inference that if so produced, he would have not supported the cause of the said defendant.

Intrinsic fallacy in the contents of the plaint of the suit instituted by Yadvinder Singh further leads the court to an inference that the plaintiffs and Lal Singh had not put in appearance before the Court nor they made any statement nor suffered the decree against them. The suit for declaration brought about by Yadvinder Singh talks of family arrangement by which land described in earlier part of the judgment was to go to him and in lieu thereof plaintiffs and Lal Singh were to get share of Yadvinder Singh in double storey building and two residential plots in village Sarhaul. Whereas, land owned and possessed by the plaintiffs and Lal Singh stands described in the plaint in all measurements and details, there is no mention of particulars of double storey building and two residential plots. Where the same were located, what was their dimensions is also totally missing from the plaint. Not only that such essential particulars are missing from the plaint of the suit filed by Yadvinder Singh, no worthwhile evidence has been given even in this Court to show that insofar as these vacant plots are concerned the same are actually existing in the village or not. No one has been produced in the witness box to state as to where these plots were located. The site plan of these plots, has also not been exhibited. No draftsman has been produced to show that he had actually gone to the spot and verified the location thereof and as to how these plots are bounded. No evidence at all has been given with regard to ownership of the socalled plots as well. Yadvinder Singh, while appearing as DW4 has, however, endeavoured to show that these plots are in existence. In his examination in chief he has stated that a settlement was arrived at between his father and Lal Singh, vide which the land in dispute was to go to his father Randhir Singh and his father, in lieu of the land, was to give two plots to Lal Singh which were of 400 sq. yards each. His father also gave his portion of the house in village Sarhaul to Lal Singh. He also talks of some money that was given to Lal Singh earlier in point of time. With regard to said money comments shall be made later on. In his crossexamination, he stated that in the family settlement arrived at between him and his brothers, the share of his father in the house at Sarhaul had come to his share which had a total covered of 17001800 sq. yards. He further stated that two plots that were given to Lal Singh in family settlement did not bear any number. However, both the plots were located adjacent to each other. Whereas one plot was bounded by a wall, other was without any boundary wall. In front of these plots, there was house of Ch. Chandan Singh. In the back of these plots, there was a Mohalla, in the right of these plots, there was a thoroughfare and in the left there was house of Chandan Singh. He denied the suggestion that these plots were totally nonexistent. While describing these two vacant plots in the written statement in para 5, he stated that in the East, there was plot of Bhup Singh, in the West, there was property of defendants, in the North, there was house of Hargian and in the South, there was passage. The other plot was bounded as in the East, there was passage, in the West, there was also passage, in the North, there was house of Balbir Singh and in the South there was passage and double storey building. The description given by him in the written statement does not at all tally with the description given by him in the statement made in this Court. Looked from any angle, a firm conclusion that these plots were nonexistent has to be arrived at.

While reconstructing the judicial file, it transpired that the very next day, when the suit was decreed, i.e. October 29, 1990, one Krishan Yadav, representing himself as Clerk of Shri Ram Niwas Yadav, Advocate, Gurgaon had submitted application No. 581 for obtaining a copy of the decreesheet. On that very day, the copy was prepared and was delivered to the applicant on November 5, 1990. An application bearing No. 637 was received on July 2, 1991 from Om Parkash, Clerk of Shri K.L. Dang, Advocate for Shakuntla Devi and others for supply of certified copy of the plaint written statement, decree/compromise and statements of the parties. The Clerk dealing with the matter reported on the said application that the judicial file was not placed in the bundle of the hadbast area of village Sarhaul. Shri Rajesh Kumar, Deputy Record Keeper had brought this fact to the knowledge of Om Parkash, Incharge, Judicial Record Room, Gurgaon. The District Judge (Vigilance), Haryana has also mentioned these facts in his report, EX PW7/1. As mentioned above, report of the District Judge, Ex. PW7/1 can be taken into consideration for loss of judicial file, reconstruction thereof and other allied matters. From what has been stated above, it is proved that insofar as defendant No. 1 is concerned, an application to obtain certified copy of the decree sheet was made the very next day when the decree was passed but insofar as plaintiffs are concerned, they made such an application only on July 2, 1991 after about nine months from the date when the impugned judgment and decree was passed. If the plaintiffs and Lal Singh were in know of the impugned judgment and decree that was passed against them, there does not appear to be any question that they would have not applied for a certified copy of the judgment and decree immediately or at least within 1520 days from the date when the judgment and decree was passed. If they would have got residential plots and a house in village Sarhaul in lieu of the suit land, there would have been anxiety on their part to get the plots and residential house transferred in their names which could be done only by producing certified copy of the judgment and decree before the concerned authorities. It is not even the case of defendant No. 1 that any endeavour was made by plaintiffs and Lal Singh to transfer the residential house and plots in their names on the dint of the impugned judgment and decree. It may be recalled at this stage that the mutation pursuant to judgment and decree passed in favour of Yadvinder Singh was recorded on April 18, 1991 and the same was sanctioned on May, 8, 1991. Yadvinder Singh did not take any steps for nearly about seven months to get mutation entered in his favour. Having obtained such a valuable piece of land by way of a court decree, there does not appear to be any reason why Yadvinder Singh would have not rushed to the revenue officials for mutating the suit land in his favour. It is quite apparent that he did not take steps to get the land mutated in his favour till such time the judicial file was made to disappear. Naturally, therefore, when the plaintiffs applied to get certified copy of the impugned judgment and decree etc., they were promptly told that the judicial file was not available. It may be recalled at this stage that mutation was recorded by the revenue patwari DW1 Uttam Chand on April 18, 1991 and was sanctioned on May 8, 1991 by the AC IInd Grade. In all mutations, an endorsement is made by the Patwari that the matter with regard to mutation has been put up by a particular person in the presence of the gathering. Prominent amongst the gathering are named. The presence of the parties is also recorded and it is only then that either on the dint of the impugned judgment and decree or on the basis of Will etc. that the mutation is entered by the Patwari. It is significant to note that no such endorsement is available at all on the mutation, Ex. PW11/1. The mutation does not contain signatures either of Lal Singh or any of the plaintiffs. It also does not contain the signatures of Nambardar Om Parkash, stated to be present as per the statement of DW1 Uttam Chand Patwari. The said witness has also stated that other villagers were also present at the time when the mutation was sanctioned. However, in cross examination he stated that he had issued no notice to Lal Singh, who was not personally known to him. No notice was issued to any of the plaintiffs. Neither Shakuntla Devi nor her children appeared at the time of mutation. He had not obtained the signatures of Lal Singh at the time of sanctioning of the mutation. He could not give the names of others who were present along with Lal Singh and Yadvinder Singh. He had kept no record of the proclamation got done by him. He had no written record to show that Lal Singh was present on either of the occasions, i.e., when the mutation was entered and when it was sanctioned. To a court question he replied that he had maintained rapat rojnamcha which was kept by every patwari. No entries were recorded with regard to mutation therein. He did not even make entries in the rapat rojnamcha with regard to proclamation. He never read any rules for the procedure that a patwari is supposed to follow. He never recorded an entry of proclamation having been done in the rapat rojnamcha. He admitted that after the demise of Lal Singh, his widow Shakuntla Devi and her children had approached him for mutating the land in their favour and that he had informed them that the land in dispute had since been mutated in favour of Yadvinder Singh.

Two very significant factors that emerge from the evidence that has been discussed above, are that defendant No. 1 Yadvinder Singh got the mutation of the land in dispute in a clandestine and secretive manner. It is quite apparent from reading of the statement of DW1 that Lal Singh was not present at the time when the mutation was sanctioned. No notice was given either to him or to any of the plaintiffs. DW1 did not personally know Lal Singh, who had never visited him for official work. Proclamation before entering the mutation is said to have been done. No entry was recorded in the rapat rojnamcha. The mutation, as referred to above, contains signatures of none whatsoever. Lambardar who, as per the statement of DW1, was present, has also not been even produced in the Court. A clear attempt was made by defendant No. 1 to keep the factum of impugned judgment and decree obtained by him as a secret as long as it was possible. The second important factor that emerges from the evidence, referred to above, is that insofar as plaintiffs are concerned they actually came to know about the decree having been obtained against them by Yadvinder Singh after the mutation had since already been sanctioned in favour of defendant No. 1. There was no occasion for them to have gone to the Patwari to ask for mutating the land of Lal Singh in their favour if they were consenting party to the impugned judgment and decree. DW1 candidly admits that plaintiffs had approached him to mutate the land of Lal Singh in their favour and he had informed them that said land had already been mutated in favour of Yadvinder Singh.

Before 1 part with this aspect of the case, I would like to mention that Yadvinder Singh stated in his crossexamination that they were not in a hurry to get the mutation sanctioned as they were in possession of the land and it is for that reason that the mutation was sanctioned on May 8, 1991. If the explanation given by Yadvinder Singh that he was in possession ever since 1989 and therefore there was no urgency to get the mutation sanctioned, was perhaps to be accepted, the things might have been samewhat different. However, it is proved from the documentary evidence that Yadvinder Singh was not in possession of the land till such time plaintiffs were forcibly dispossessed. Available on records is Jamabandi for the year 198687 Ex. PW9/6. Both in the column of ownership and possession, names of Lal Singh and plaintiffs are recorded. The jamabandis are prepared after every four years and the next jamabandi was to come into existence only in 199091. Available on records are also Khasra Girdawaris which are prepared after every six months, right from 1987 to 1991. Khasra Girdawari of 13.10.1987, 2.3.1988, 5.10.88, 30.3.89, 9.10.89, 9.3.90, 17.3.90, 14,3.91 clearly depict Lal Singh and plaintiffs to be in possession of the suit land. Khasra Girdawaris of 3.3.1992 and 23.10.1992 also depict the plaintiffs in possession of the suit land. Reference may be made to Khasra Girdawaris, Ex. PW9/7 to 9.

It has been the positive case of the plaintiffs that they were dispossessed from the suit land on September 15, 1993. Shakuntla Devi addressed a letter to the SSP, Gurgaon on September 15, 1993 (Annexure p/7 in the contempt petition) for taking immediate action and registering an FIR against Amarjit Singh and Brij Bhan for taking unlawful and forcible possession of the land situated in village Sarhaul. In para 2 of the said letter, it has been stated that Yadvinder Singh in collusion with Amarjit Singh and Brij Bhan was trying to dispossess her without any basis and act of taking possession was unlawful and forcible. She had also stated that nobody could take possession till the stay order issued by the High Court was vacated. She also lodged an FIR to the SHO (Annexure P/8 in the contempt petition) wherein it was mentioned that Yadvinder Singh along with others mentioned in the application was using force to commit trespass and interfere in her peaceful possession. It is interesting to note that in the reply filed by Shri I.D. Kaushik, IAS, Deputy Commissioner, Gurgaon, in the contempt petition, it was mentioned that an application dated August 16, 1993 filed by respondents 7 to 8 (in the contempt petition) was received for demarcation of the land which was marked by him to respondent No. 2 for necessary action on August 19, 1993. Respondent No. 2 in turn marked it down to subordinate revenue officials for effective action. On the report of the subordinate revenue officials, respondent No. 2 wrote to respondent No. 1 on September 1, 1993 for providing police help so as to maintain peace. Thereupon, respondent No. 1 passed an order providing police help in connection with the demarcation of the land as requested by respondents 7 and 8. The demarcation was given on September 15, 1993 accordingly. Along with their written statement filed on behalf of respondent No. 1, some documents have been attached which have a great bearing on the case as to when possession of the land was taken. Annexure R2/1 is a letter written by Brij Bhan and Amarjit Singh. It may be mentioned here that Amarjit Singh is stated to be lessee from Yadvinder Singh. This is application dated August 19, 1993. It is mentioned therein that the applicants are lease holders and in possession of land measuring 104 kanals 5 marlas which has been encroached upon by the adjacent landowners and, therefore, its demarcation may be permitted/carried out by the Naib Tehsildar and Halqa Kanungo. The Deputy Commissioner marked this application to the Tehsildar, Gurgaon for necessary action on August 19, 1993. On the same very day, Tehsildar marked this application to the Girdawar Halqa and on August 20, 1993 Kanungo and Patwari Halqa made an endorsement that they had accompanied the applicants to the spot in village Sarhaul for demarcation. There were some people who did not allow demarcation to proceed. Rather they were bent upon the resort to fight and, therefore, it was necessary to provide police help. On the same very application, an endorsement was made by the Tehsildar as per the report of the Girdawar Halqa that the demarcation could not be carried out without the help of the police as there was apprehension of breach of peace. He, thus, agreeing with the report of the Girdawar Halqa, submitted the report in original to the Deputy Commissioner for providing police help. Rapat Rojanamcha produced as Annexure R2/3 in the contempt petition clearly records that on September 15, 1993 demarcation was carried out in respect of land measuring 104 kanals 5 marlas in the presence of the gathering and the police. This report has been signed beside others by the Deputy Superintendent of Police as well. A close scrutiny of these documents would clearly reveal that the plaintiffs were dispossessed with the help of the police in the garb of giving demarcation of the land. Nothing is mentioned in the application as to who were the neighbours who were creating hurdles in giving demarcation. No details of the adjacent landowners, who objected to demarcation, has been mentioned at all. There was no dispute of demarcation at any stage with anybody. Further, if Yadvinder Singh or Amarjit Singh was in possession since 1989, it cannot be even dreamt that the demarcation dispute arose with somebody after 34 years. The facts coupled with documentary evidence clearly demonstrate that the plaintiffs were actually dispossessed on September 15, 1993. Overwhelming documentary evidence in the shape of revenue record apart, what nails the case of defendant No. 1 is that he never came to occupy the land till September 15, 1993. There had never been any dispute of demarcation with Lal Singh and plaintiffs on the one side and their neighbours on the other as long as they were in possession and it is conceded position that the partition between the father of Lal Singh and his brothers had since been effected many years ago. The land erstwhile belonging to Lal Singh and plaintiffs came into ownership and alleged possession of Yadvinder Singh. If Lal Singh and plaintiffs did not have any demarcation dispute with their neighbours, how such a dispute surfaced all of a sudden and with whom, remains totally unexplained. His assertion that he was in possession since 1989 is a blatant lie.

The oral and documentary evidence led by the plaintiffs and footproof inference drawn from the circumstantial evidence apart, if evidence led by the defendants is examined, it would leave no one in doubt that on all counts defendants have come up with total falsehood and with a view to take their falsehood to some logical end, they have even fabricated evidence. In the very first instance, it requires to be mentioned that while filing the suit leading to passing of impugned judgment and decree, not even a word was mentioned that Lal Singh had borrowed some money from the father of defendant No. 1. It is quite apparent that being under the pressure that no court would accept bartering of big chunk of land with a share in the residential house and two vacant plots in the village, the price difference between the two being immense, it is apparent that a false story with regard to lending of few lacs of rupees to Lal Singh by father of defendant No. 1 was introduced and in his endeavour to prove the same defendant No. 1 fabricated evidence. Further, the decree, as passed, does not give any share in the residential house in village Sarhaul and two vacant plots thereat to Lal Singh and plaintiffs. Even though it might have been incorporated in the body of the plaint that such was the arrangement, while passing the decree, the Sub Judge only recorded that the suit was decreed with regard to agricultural land. In the plaint, there is not even a prayer that whereas the agricultural land should be transferred in the name of defendant No. 1, the share of the said defendant in the residential house and two residential plots situated at Sarhaul should be transferred in the name of Lal Singh and plaintiff.

Coming now to the evidence with regard to lending of money to Lal Singh by father of defendant No. 1, Yadvinder Singh stated that his father used to lend money to Lal Singh as the firm run by Lal Singh was under financial crisis. Lal Singh per force of circumstances, had to borrow money from his father as the business run by him had come under financial crisis in 1984 but it totally crumbled in 1985 as there was dispute inter se partners of the firm. He stated that total amount of seven lac rupees was borrowed by Lal Singh upto 1989. At one time an amount of Rs. four and half lacs was paid and on the other time an amount of Rs. two and half lacs was paid. Lal Singh demanded more money in 1989 from his father which was refused till such time there was some writing regarding borrowing and lending of the money. Instead of having writing with regard to borrowing and lending of the money, what was arrived at was a settlement by which the land in dispute was to be given to Randhir Singh, father of defendant No. 1. He also stated that his father was catering for the education of children of Lal Singh as they were studying outstation and his father incurred lot of expenses on that count. However, in the crossexamination, he admitted that his father was promoted as Superintendent of Police in 1986 and as DSP his income from salary was Rs. 50006000/ per month. When he was promoted as SP, there might have been a jump of Rs. 500/1000/ per month. His father besides salary was also having rental income from two houses, that he was owning in Delhi and Gurgaon. He was earning Rs. 4000/ per month from the Delhi house and an amount of Rs. 6000/ from the Gurgaon house. Insofar as he recollected one of the tenants in Gurgaon house was Mr. Goel, whose full name he did not remember. His father was getting rent in cash and not by cheque. With regard to renting of both the houses, his father never got executed rent deed at any time.

He recollected the names of two tenants at Gurgaon who were Mr. R.S. Aggarwal and Ved Sharma. He stated that his father must be giving receipt of payment of rent to his tenants. He could not say as to whether his father lended any financial help to any other person besides Lal Singh. With a view to show that his father had rendered financial help to Lal Singh to the tune of Rs. seven lacs, he stated that his father had mortgaged his property which was a Restaurant at Sarav Priya Vihar, New Delhi known as Mehfil Classic. This property was only a site and building thereon for the restaurant and it was lying vacant. This site was mortgaged in favour of Ram Kumar of Nathupur and the mortgage was not in writing. This very property was later transferred to Ram Kumar in 1992 by his father. All the transactions were oral. No document was executed with regard to transaction of loan aforesaid. He denied the suggestion that there were no cordial relations inter se parties. He could not affirm participation of Lal Singh and plaintiffs in his own marriage as under the stress of crossexamination, he had to say that he would check if there were some photographs of Lal Singh and plaintiffs that might have been taken in his marriage. He did not know as to from where Bharat Singh was doing his MBA. He also did not know from where he had done his graduation. He also did not know where Vineet was studying those days. He, however, stated that since there were strained relations between them for the last four years, he did not know as to what the plaintiffs were doing. In 1990 the parties inter se, according to him, had cordial relations. However, in the very next sentence he stated as to what Vineet was doing in 1990, he did not know. In which school he was studying, he did not know. Sharad was also studying in 1990 and he was daily passenger from Gurgaon to Delhi. However, he did not know in which school he was studying in Delhi.

If one is to only cursorily go through the statement of defendant No. 1, it would lead to only one conclusion that story with regard to lending of money by his father to Lal Singh is totally false and has been simply introduced with a view to defend this case. The source from where his father had arranged money so as to lend it to Lal Singh is not known and an endeavour has been made to show that father of defendant No. 1 was having rental income from houses located at Delhi and Gurgaon. However, no particulars of the houses either at Delhi or at Gurgaon have been mentioned nor any rent deed evidencing that some residential accommodation of father of defendant No. 1 was ever rented to anyone has been produced on records. The names of the tenants are not known but for one tenant at Delhi and two at Gurgaon. No receipt evidencing payment of rent has been produced. It is strange to note that after the demise of father of defendant No. 1, the houses said to be owned by him at Delhi and Gurgaon ought to have come to the share of defendant No. 1 and his other brothers and sister. The houses, in all probability, would have still continued to be in occupation of the tenants. No details of the present tenants have been given. No rent deed with the present tenant who may be in the premises has been produced. No rent receipts have been produced. The story with regard to mortgaging the site of restaurant at Delhi is sought to be supported from the evidence of DW5 Ram Kumar. It is to whom the property was mortgaged and later sold. The said witness stated that the restaurant was mortgaged to him by Randhir Singh in lieu of Rs. four lacs. This was in 1989. He further stated that for this transaction some documents had been executed which he had brought. One was power of attorney dated June 3, 1993 which was executed by wife of late Randhir Singh as Randhir Singh had already died. He had taken all the documents in 1989 with regard to ownership of the restaurant which was at the time of execution of the mortgage. When cross examinated he stated that he was dealing in money lending. He had not advanced any loan to anyone to the tune of Rs. Two to four lacs except Randhir Singh.

The papers were executed one or two days after the loan was advanced. He did not have licence of money lender. At the time when he advanced the loan to Randhir Singh, no mortgage deed as such was executed. Out of Rs. four lacs, some money was paid in case which was lying in his house and the remaining was withdrawn from the Bank. He did not remember the date when he had withdrawn the amount from the bank. He had got the money as he had sold the land but he did not remember in what khasra numbers the land comprised. The land was sold to a Company, the name of which he did not remember. No one was present at the time of advancing loan of Rs. four lacs to evidence the payment. He had not obtained any receipt in token of having paid the advance money. No document specifically for mortgage was executed. The restaurant consisted of two shops which were of the size of 12''x12''. He qualified by saying that the size of the shops was 12''x20''. The shops were fully constructed. The power of attorney was executed in the name of his brother. He further stated that he had only got prepared power of attorney and no other documents as they had complete faith in Randhir Singh and they were sure that he would not back out from his promise. No receipt was obtained by them when they paid further amount to Randhir Singh. He did not know Harinder Singh and Kanshi Ram. So was his reply with regard to Atul Nibre and Jaggi. He Instead of having writing regarding borrowing and lending of the money. dmitted that he had come to depose in the Court having been brother by Yadvinder Singh. The power of attorney, Ex. DW5/1 contains no date. As mentioned above, the endorsement of the Sub Registrar appears to have been made on June 3, 1993. This document has been witnessed by three lawyers. Nothing else requires to be discussed but for say that even though money was advanced in 1989 and as per statement of DW5 power of attorney was executed at that time, the one produced on records of the case, Ex. DW5/1 is dated June 3, 1993. He, however, stated in his examination in chief that the power of attorney was executed on June 3, 1993 but when crossexamined, he stated that he had got the papers executed one or two days after the loan was advanced. There was no question for this witness to have obtained power of attorney in 1993 when he had advanced loan to Randhir Singh in the year 1989. It is strange to note that the power of attorney has been given by Sarla Yadav, wife of Randhir Singh. It is in favour of Raj Kumar, said to be brought of DW5. If the money was lended by Ram Kumar, DW5, there does not appear to be any reason as to why the power of attorney should have been obtained in favour of his brother. Added to what has been said above is the fact that no other document was executed. Only documents of ownership were taken into possession by the witness. These documents could very well be handed over to this witness later in point of time. Still further, witness has no idea where exactly the property was located and how the same was bounded. He even did not know the name of the Restaurant. Whereas, Yadvinder Singh stated it to be a site for restaurant and building, this witness stated it to be a place where two fully constructed shops were already in existence. Looked from any angle it is, thus, quite apparent that Yadvinder Singh has created this evidence with a view to prop up a false defence.

Insofar as statement of DW1 Uttam Chand Patwari is concerned the same has already been commented upon. It may be reiterated that after reading his statement, it is quite apparent that he had given false evidence in the Court. The next witness examined by the defendants is Harinder Pal Singh DW6. He is one of the vendees. His evidence shall be discussed at the time when findings on issue No. 4 are returned. DW7 Rattan Singh, MHC, Gurgaon City Police Station proved lodging of FIR No. 723 dated December 24, 1993 under Section 380 IPC and FIR No. 528 dated July 22, 1991 under Sections 420/447/471 IPC. As per his statement, both these FIRs were filed as untraced. Insofar as documentary evidence led by the defendants is concerned, reference thereof has already been made. Suffice it to say that besides proving on record the impugned judgment and decree, Ex. DW5/1, power of attorney was produced which has already been commented upon. Ex. DW5/2 is a copy of allotment letter vide which Randhir Singh was asked to report on the site. It has no bearing upon the facts of this case. Ex. DW/3 is a draft drawn on Andhra Bank. The same has also no bearing on the facts of this case. Ex. DW5/4 to 7 are the telephone bills issued in favour of Shanta Uppal. Ex. DW5/9 to 22 are the documents relating to the property said to have been mortgaged in favour of DW5, Ex. DW7/3 is a sale deed executed by Yadvinder Singh in favour of Jaggi son of Rattan Lal. But for the aforesaid sale deed, which comments shall be made later, no reliance has been placed on other documents at the time of arguments nor it has been in any way shown that the same are relevant for determining the controversy in hand.

The story introduced by Yadvinder Singh that he had cordial relations with Lal Singh and plaintiffs is also false. Even though he claims cordial relations, he did not know as to whether Lal Singh and plaintiffs participated in his own marriage. He did not know even during those days, when they had cordial relations, where children of Lal Singh were studying.

The only other aspect of the case, as projected by defendant No. 1 and that still remains to be discussed is as to whether Lal Singh had fallen on bad days and was in need of money and if so, was the need so urgent so as to part away with his entire valuable property. The defendants have been able to prove that the partnership concern, M/s Yadav Tractors, was run by some partners, of whom Lal Singh was also a partner to the extent of 30%. This partnership was earlier having far more returns but gradually the returns started dwindling. The partnership concern was ultimately closed. A suit for recovery of 3 lac rupees odd was also filed by the Bank against the partnership concern which was ultimately decreed. The plea of the defendants insofar as huge sales tax recovery against partnership concern is concerned, the same has not been proved at all. The said tax payable never exceeded Rs. 1500/. This Court is, however, of the view that despite the fact that Lal Singh might have suffered some losses from the business, he had still not gone down the hill so that he might have felt the necessity of parting away with his valuable land. There is intrinsic fallacy in the contention of learned counsel for the defendants that inasmuch as Lal Singh was facing financial crisis, therefore, he had to part with his land. Insofar as his borrowing money from Randhir Singh is concerned, the same has already been held to be false. If, therefore, he had not to discharge any debt to Randhir Singh and he had fallen on bad days and needed any money, there was no question for him to have watered down his property of crores for share in the residential house and two residential plots in the village.

The sale of land would have yielded him far more money than what was to come to him from the residential house and two vacant plots in village Sarhaul. Further, despite the fact that there were some losses in the business, Lal Singh and plaintiffs were not in adverse circumstances in any case. Vineet Kumar was a student from 1988 to 1992 in the Banaras Institute of Technology. His monthly expenses there would be Rs. 600/. Prior to his joining at Banaras, he was studying in the Model School, Vasant Vihar, New Delhi. Bharat Singh had done his MBA from Lucknow University in the year 1992. Obviously, he would have joined MBA 34 years prior to 1992. Prior to his joining at Lucknow, he was studying at Venkteshwar College, New Delhi. Sharad Yadav had just finished his 10+2 from Gyan Bharti School, Delhi. Three plaintiffs, i.e., sons of Lal Singh, were thus, studying out of town, at various places, even during those days when Lal Singh is said to have been fallen on bad days. It has already been held that no money was ever borrowed by Lal Singh from Randhir Singh. If that be so, if Lal Singh could afford to send all his three sons outside for specialised studies, i.e., degree from Banaras Institute of Technology, MBA from Lucknow University and another son studying at Delhi, it cannot be said by any stretch of imagination that Lal Singh was in financial crisis after his partnership concern suffered some losses. From reading of evidence it is quite clear that partnership fell through and it is because of inter se fight between the partners that there were some losses. That apart, it has been overwhelmingly proved on records that in 198990 Lal Singh was making all out efforts to establish Bharat Academy in the land in dispute. He was relentlessly pursuing his case of change of land use. Reference to the correspondence on that count has since already been made. This academy was to be on the name of his son Bharat Yadav and this was to be an academy where hostel was also to be provided. Lal Singh could not have gone in for a mammoth project, like this, if he was in financial crisis. The fact that Lal Singh was making all out efforts to establish Bharat Academy, in the land in dispute, further lends support to the case of the plaintiffs that there was no occasion for Lal Singh to have transferred the same very land to defendant No. 1 in which Academy was to be constructed/developed. Looked from any angle, it is, thus, clear that Lal Singh and plaintiffs did not suffer any decree. Defendant No. 1 in a clever device made someone to file consent written statement by engaging a lawyer himself on their behalf. Impersonators were, thus, put to grab the land of Lal Singh and plaintiffs. In his endeavour that fraud committed by him may not come to light, be alone, naturally with the connivance of the court officials, made the judicial file to disappear.

As mentioned above, if on facts, firm finding was to be recorded and which has been recorded, that plaintiffs were party to the suit titled as Yadvinder Singh v. Lal Singh and others only in print and not in fact and reality, it would not be necessary to deal with the legal aspects of the case, as have been detailed above. However, as mentioned above, the case does require comments on the legal aspects of the case as well. The pedigree table of the parties has been given in the earlier part of the judgment. Nanwa was the common ancestor of the parties. He had four sons, namely, Nand Lal, Khem Chand, Inder and Bhoru Mal. Lal Singh was the son of Nand Lal, Shakuntla Yadva is widow of Lal Singh whereas Bharat, Vineet and Sharad are sons of Lal Singh. Khem Chand had three sons, namely Raj Singh, Ranbir Singh and Randhir Singh. Randhir Singh has three sons, namely, Rohtas, Birinder Singh and Yadvinder Singh (defendant No. 1). Lal Singh''s father Nand Lal and Randhir Singh''s father, Khem Chand were real brothers. In other words, Lal Singh was son of brother of defendant No. 1''s father. Rest of the pedigree table is not relevant. Defendant No. 1, in his crossexamination stated that there was a partition between brothers of his grandfather. As to whether the partition had taken place in 1970 he did not know. Whole of the property was partitioned. With regard to partition, there was some dispute between Balbir Singh and Lal Singh. Balbir Singh had instituted a suit which was dismissed in 1995. He admitted that the brothers of his grandfather had equal share in the house at village Sarhaul. He admitted that his grandfather had distributed his property in three shares. There seems to be some mistake in his statement as Nanva had four sons and, therefore, in all probability, property of Nanva, grandfather of defendant No. 1 was distributed in four shares in 1970. Be that as it may, the fact remains that grandfather of Randhir Singh had partitioned the land which fell to his share and Nand Lal and Khem Chand, i.e., fathers of Lal Singh and Randhir Singh had partitioned the land that had come to them to their sons. The property, thus, no more remained ancestral. The share of Nand Lal devolved upon Lal Singh whereas share of Khem Chand devolved upon his three sons, namely, Raj Singh, Ranbir Singh and Randhir Singh, father of defendant No. 1 Yadvinder Singh. Parties were living separately as is clearly made out from the statements of plaintiffs and defendant No. 1. Only a residential house in village Sarhaul was joint but neither the plaintiffs nor Randhir Singh were living in the said house. The question that, thus, arises is as to whether there could be any family dispute between Lal Singh, Shakuntla Devi and their two sons on the one side and Randhir Singh or defendant No. 1 on the other. Neither Randhir Singh nor defendant No. 1 had any right to succeed to the property of Lal Singh. Insofar as other defendants of the suit resulting into impugned judgment and decree are concerned, namely, Bharat Singh and Vineet, they were holding the property in their own names, besides, of course, the share they were to succeed from the estate of Lal Singh. What dispute these plaintiffs could have either with Randhir Singh or Yadvinder Singh ? Further, if there was to be some family dispute between Lal Singh and Randhir Singh, why Randhir Singh did not file a suit and as to how he alone could take the entire property to the exclusion of his real brothers, Raj Singh and Ranbir Singh. Further, it could not at all be explained as to how Yadvinder Singh defendant No. 1 alone could get the entire land belonging to Lal Singh and plaintiffs. Reference has since already been made to judgment of the Supreme Court in Kale''s case (supra). True, one of the family members may not have any right of succession while settling a family dispute but here is the one who got the entire property, had absolutely no right, neither remote nor antecedent to succeed to the estate of Lal Singh and in any case to the estate of plaintiffs Shakuntla Devi, Bharat Singh and Vineet. Further, as per the case of defendant No. 1 himself and which is also reflected from the language employed in the body of the plaints resulting into impugned judgment and decree, it was not a case of family settlement at all. It was a barter or exchange. Two vacant plots in village were to be given to the plaintiffs, other than Sharad Yadav and share of respondent No. 1 in the residential house was also to fall to the share of the said plaintiffs. In lieu thereof, the plaintiffs were to part with their entire holding to defendant No. 1. Presumbaly, the plots, if any, were in the ownership of Randhir or Yadvinder Singh. Insofar as story of lending money to Lal Singh is concerned, the same has already been negatived. This court, thus, returns a finding that there was no dispute between the parties inter se that might have required settlement. At the most, it was a case of exchange. The Court, thus, holds the impugned judgment and decree to be illegal on the count that there was neither any joint Hindu family nor any dispute between the members of such family inter se. The Court further holds that if this was to be a case of exchange, which it was, it could be only done by a registered deed. Resort to a court decree has resulted in violation of law of registration and being opposed to law is hit by Section 23 of the Indian Contract Act.

Before a conclusion is arrived at on these two crucial issues, peripheral contention raised by learned counsel for defendant No. 1 that the plaintiffs have hobnobbed with DLF to file this suit is still to be commented upon. It may be recalled that on one of the dates fixed in this case, a Liaison Officer of the DLF was present in the Court. The said officer had, however, stated that he had come in his own matter and was asked by his counsel to wait in this court. No worthwhile evidence has been produced on records to show that there was any arrangement that might have been arrived at between DLF and the plaintiffs. Assuming, that the plaintiffs had decided, during the currency of the suit, that if the suit is decreed in their favour, they would sell the entire land to DLF Company, nothing adverse can be commented upon. It is the property of plaintiffs and they can deal with the same in a manner they like.

The land subject matter of dispute is concededly located in a posh locality, i.e., DLF Qutab Encalve. It is conceded at all ends inclusive of defendant No. 1 that land is situated in between different phases of DLF Qutab Enclave. The District Judge (V), Haryana in his report has stated that "the land in dispute is a precious piece of land worth crores of rupees situated in the heart of prestigious Urban Estate Complex of DLF Qutab Enclave, Part II, Gurgaon, on the DelhiHaryana border. Even though it has been the case of the plaintiffs that property is worth several crores, no exact price of the land as such has been proved but based upon whatever evidence has come on record and by taking judicial notice with regard to prices prevalent in the DLF Qutab Enclave, Gurgaon, it has to be held that the property is certainly worth crores of rupees."

The land valuing crores of rupees is stated to have been bargained for two vacant plots and a share in the ancestral house in village Sarhaul, Assuming that these plots are in existence, as per the statement of Yadvinder Singh himself, the value of these plots was Rs. 300/ per sq. yard. These plots are of 400 sq. yards each. The total market value of these plots comes to be Rs. 2,40,000/. The value of the ancestral house has been assessed by PW1 Y.D. Adlakha, Chartered Engineer and Registered Valuer to be Rs. 2,93,039/. Whatever be the share of Yadvinder Singh in this residential house, the fact, as per the story coined by Yadvinder Singh, remains that whereas Lal Singh and plaintiffs, other than Sharad Yadav, were to get property worth, at the most, rupees five and half lacs plus seven lac rupees given to Lal Singh as alleged. Insofar as Yadvinder Singh and Randhir Singh are concerned, they were to get property of crores of rupees. No sane person would have ever gone in for an exchange of this kind. This further proves that plaintiffs and Lal Singh were never a party to the suit culminating into impugned judgment and decree.

Issue No. 1 and 2 are, thus, decided in favour of the plaintiffs and against the defendants,

ISSUE NO. 4

"4. Whether respondents 2 to 5 are bona fide purchasers for value and consideration without having notice of defective title of the vendor ?"

The question whether defendants 2 to 5 have bona fide purchased the land in dispute for value/consideration without having notice of defective title of their vendor, stems from the language employed in Section 53 of the Transfer of Property Act. 1882. The said section reads thus :

"53. Fraudulent transfer : (1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this subsection shall impair the rights of a transferee in good faith and for consideration.

A suit instituted by a creditor (which terms includes a decreeholder whether he has or has not applied for execution of his decree) to avoid transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor shall be instituted on behalf of, or for the benefit of, all the creditors.

(2) Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee.

For the purposes of this subsection, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made."

From the facts and circumstances that have, however, come on record of the case, learned counsel for defendants 2 to 5 had to abandon their contention based on Section 53 of the Transfer of Property Act half way through. Even though, therefore, no arguments could be addressed to even remotely show that Section 53 of the Act is applicable, yet it will be worthwhile to give facts under the stress of which the arguments, as referred to above, were abandoned. The vendees do plead that they had no knowledge of defective title of Yadvinder Singh and they had purchased the property for value/consideration. When examined, Yadvinder Singh, DW1 stated in the crossexamination adverted to him by learned Counsel for the vendees that the land in dispute was sold by him to Harinder Singh and others and they had shown mutation of the land in dispute as also order of the Sub Judge to the prospective vendees before they had sold the land to them. At that time order of the District Judge was also shown to the vendees. They had taken the vendees at the spot. He admitted that the vendees two days prior to the execution of the sale deed had even got executed lease deed in favour of Amarjit Singh. To a court question, he stated that Amarjit Singh, in whose favour lease deed was executed, was closely related to there prospective vendees. Naturally, on the cross examination, adverted to him by learned Counsel for the vendees, he had to answer as mentioned above. However, when crossexamined by learned Counsel for the plaintiffs, he stated that he had agreed to sell the land that had come to him by virtue of the decree in there year 1991. The agreement was with defendants 2 to 5. The advance received by him was over Rs. three lacs. He had received a part of sale consideration, i.e., Rs. 1,12,500/ on May 14, 1991. Likewise, they had got advance money from prospective vendees. They had in one go decided to sell the entire land but for one and half acres. He did not remember as to when the stay was vacated by the District Judge and Deputy Commissioner. He did not remember if the Deputy Commissioner and District Judge vacated the stay on the same day. The lease with regard to land in dispute was executed on January 25, 1993. A caveat was filed in this court on January 27, 1993. However, when the matter was fixed for hearing before the High Court, he was not present. He, however, admitted that stay was granted against them on that day. He denied the suggestion that the sale deed was executed after the stay was granted. He admitted that prospective vendees had knowledge of the dispute pending between the plaintiffs and him. The records of the case bear it out that on January 27, 1993 stay was granted by D.L. Gupta, J. in the revision preferred by the plaintiffs against the orders of District Judge vacating the stay and a caveat was filed on behalf of defendant No. 1 who admits knowledge of stay but after the sale deed was executed. It is not possible for this Court to believe that he did not know that this Court had granted stay on January 27, 1993. That apart, he candidly admits that the prospective vendees had knowledge of the dispute pending between him and the plaintiffs. If that be so, the defendantvendees certainly knew that the title of defendant No. 1, on the dint of impugned judgment and decree, was under cloud. They had, thus, knowledge of the defective title of defendant No. 1. In the facts and circumstances of this case, it cannot be believed that they also did not know that stay was granted by this Court on January 27, 1993.

Coming now to the statement of Harinder Singh, only vendee examined as DW6 it shall be seen that he stated that he had purchased a part of the suit land from Yadvinder Singh. He had checked up both the decrees as also jamabandis pertaining to the land in dispute and verified that owner of the land was Yadvinder Singh. He did not approach any revenue officer in writing but he did go to a revenue officer who was known to him. He further stated that he had possession of the land on papers but his cousin Amarjit Singh was in actual physical possession of the land. Amarjit Singh was a lessee over the land in question for 99 years. The possession was delivered to them at the time of registration of the sale deed. In his crossexamination he stated that he knew Yadvinder Singh since 1991. He did not remember the exact date as to when he had given an advance of lac of rupees to Yadvinder Singh but it was in May, 1991. He had seen the records even at the time when he had paid the earnest money to Yadvinder Singh. To a specific question put to him that in May, 1991 in the revenue records the land in question stood in the name of Lal Singh, Shakuntla Devi and her sons, he replied that the person whom he had consulted at that time had told him that the land was in the name of Yadvinder Singh. To a court question if it was a fact at that time he had not seen the revenue records himself, he stated that he had not seen the revenue records himself and had relied upon his cousin. He also stated that he had no idea about the litigation pending between Shakuntla Devi and her children on the one side and Yadvinder Singh on the other. The reason for getting the sale deed registered after about three years, given by this witness was that he was fully depending upon his cousin Amarjit Singh and he had not felt necessity of hurrying up the matter. He had no idea if the High Court had granted stay on January 27, 1993. At the time of registration of the sale deed he was not present. Representative of his cousin had signed the sale deed before the Sub Registrar. He did not know if his representative had power of attorney from him. Whereas, Yadvinder Singh clearly admits that vendees knew about the dispute pending between him and the plaintiffs, this witness denied the knowledge. In view of the statement made by him, it is quite apparent that he knew nothing about the whole affairs and in fact was depending upon his cousin Amarjit Singh. It was, therefore, Amarjit Singh who should have been produced in the witness box and it appears that he has not been so produced deliberately. It is not a case therefore, where the vendees may not be having knowledge of defective title or at least the disputed title of Yadvinder Singh. It is also not a case where they may have made any bona fide enquiries. Neither had they examined the revenue record nor had they seen the Court orders, even though they had knowledge that dispute was pending between Yadvinder Singh and plaintiffs. That apart, all through till such time the sale deeds came into existence, stay was operating in favour of the plaintiffs. Initially, Sub Judge and District Judge had granted the stay which was later vacated. However, on January 27, 1993, the High Court granted stay in favour of the plaintiffs. The revision preferred by the plaintiffs was, however dismissed on April 21, 1993 when the following order was passed :

"Prayer of the petitioners for the grant of temporary injunction was declined by the learned trial Court. The appeal was also dismissed. I find no error of jurisdiction which may require interference in the exercise of revisional jurisdiction. Dismissed."

The stay was operating at least upto April 21, 1993 granted by the learned Single Judge of this Court. Meanwhile, as referred to above, a writ petition came to be filed in this Court in which stay was granted on March 5, 1993. At every stage therefore, a stay was in existence and so much so Division bench of this Court in the Writ Petition aforesaid, vide interim order dated October 11, 1993 had directed that no alienation of the land be made until further orders and the alienations already made, after obtaining the impugned decree of the civil Court of October 29, 1990, shall not be operative till further orders. It is not possible to believe that these orders were not in the knowledge of defendant No. 1 or the vendees. Under the impressive array of facts, as have been detailed above no arguments based upon Section 53 of the Act were made and if made, the same were abandoned half way through, as mentioned above.

Further the Court is of the view that the lease deed and the subsequent sale deeds are all fictitious documents. It has been proved on records of case that the vendees are closely related to Amarjit Singh, lessee of the land. The lease was for a period of 99 years for a paltry sum of Rs. 1,92,000/. It came to be executed only two days before the sale deed were executed. The lease deed, in the facts and circumstances or this case, was only a device to ward off the plaintiffs in challenging the sale deeds. Yadvinder Singh, who admittedly is a property dealer, it appears, put up fictitious persons as lessees and vendees. The Court is of the view that with a view to avoid successful challenge to the impugned judgment and decree, Yadvinder Singh devised ways and means by which even if the Civil Court judgment and decree was to be set aside, he may still hold the land for an indefinite period. He, thus, put up fictitious persons as lessees and vendees. There was no question for him to have leased the land for an amount of Rs. 1,92,000/ and that too for a period of 99 years when the value of the property was several crores of rupees. He could have also not sold the property to others for just about 32 lacs of rupees. It may be mentioned that only one sale deed has been brought on records which is of 1/4th share and same has been sold for an amount of Rs. 8,12,1500/. No other sale deed has been proved on records. Presumably, therefore, the total land was sold for about Rs. 32 lacs. He could not have sold this property for such an amount and that adds strength to the argument of learned counsel for the plaintiffs that all these documents are fictitious. No attempt at all was made to prove the endorsement made in the registered documents that any lease amount or sale amount was actually paid before the Sub Registrar. Insofar as vendee Harinder Singh is concerned, he simply states that his representative was present at the time of registration of the sale deed and everything was being done on his behalf by Amarjit Singh, who is his cousin and none other than lessee of the land. No other vendee has been produced in the witness box. Further, as mentioned above, all the sale deeds have not been produced on records of the case. Naturally, no scribe, attesting witness nor any officials from the office of Sub Registrar has come to depose with regard to payment of money having been made before the Sub Registrar. Thus, Section 53 of the Transfer of Property Act cannot apply to this type of transactions.

This issue is also, thus decided in favour of the plaintiffs and against the defendants.

Relief :

As an upshot of the discussion made above, the suit instituted by the plaintiffs succeeds. A decree for declaration to the effect that the impugned judgment and decree passed by Shri A.D. Gaur, the then Sub Judge IIIrd Class, Gurgaon dated October 29, 1990 and consequent mutation No. 671 attested on May 8, 1991 are result of fraud, misrepresentation and by putting impersonators in place of plaintiffs, is passed in favour of the plaintiffs and against the defendants. The said judgment and decree is void, illegal, non est, would not adversely affect the right of the plaintiffs in the land mentioned in paras 1 and 2 of the plaint in any manner. Inasmuch as the plaintiffs have been dispossessed during the pendency of the suit, a further decree for possession is granted to them. The defendants are ordered to restore possession of the suit land to the plaintiffs, measuring 116 kanals 11 marlas, detailed in paras 1 and 2 of the plaint. The lease deed, reference whereof has been made in earlier part of the Judgement, though the same has not been produced on records and the sale deeds executed by Yadvinder Singh defendant No. 1 in favour of defendants 2 to 5 are also held to be null and void, not adversely affecting the rights of the plaintiffs whatsoever. It may be mentioned here that no issue was claimed that without setting aside of the lease and sale deeds, the suit as framed is incompetent. Therefore, there is no necessity to comment upon this aspect of the case. Suffice it, however to say that Lal Singh and plaintiffs were not a party as such to the suit culminating into impugned judgment and decree. If that be so, they can simply seek to avoid the said judgment and decree and need not to have asked for cancellation of the same. Further, on the dint of such a decree, lease deed and sale deeds executed by defendant No. 1 in favour of defendants 2 to 5 are also null and void and the plaintiffs can well just avoid the same. There was no necessity for them to have asked for cancellation thereof. They were not party to the lease deed and sale deeds.

Before I may part with this judgment, I would like to mention that the police has been totally partisan in this case. Despite the fact that an order was issued by this Court for registration of a case, no proper investigation seems to have been made. It was proved that judicial file had been destroyed. If proper investigation was made in the matter. It would have not been difficult for the police to register a case against those who were involved in destroying the judicial file. The Court would also like to mention that the suit was instituted by the plaintiffs in 1991 and it has now matured after a period of nearly seven years. During all this while, plaintiffs have been deprived of the valuable land. The land is concededly surrounded by DLF colony. It is a very valuable piece or land. Pitted in the circumstances as the plaintiffs were, no one to help them and the entire local administration including the police working against their interest, it can well be imagined the trauma the plaintiffs may have gone through these long seven agonising years. The Court finds it to be a fit case where special costs need to be granted to the plaintiffs that may partly soothe their wounds and bring some solace to them. The Court decrees this suit with costs quantified at Rs. one lac. The Court further directs that in case plaintiffs bring about a suit for mesne profits, either before the Civil Court or the revenue Court, wherever the same may be competent, the same shall be decided within three months from the date the defendants are served in the said proceedings. The Court further directs that the vacant possession of the land in dispute be handed over to the plaintiffs immediately on the expiry of the period or limitation for filing the appeal. The Senior Sub Judge, Gurgaon is directed to supervise the handing over of the actual physical possession of the land in dispute to three plaintiffs. He is authorised to take help of the revenue officials and the police, if need be.

The office is also directed to prepare the decree sheet in accordance with judgment given by this Court.

C.W.P. No. 2377 of 1993

As mentioned above, the fate of writ petition, is dependent upon the decision rendered in the Civil Suit. By way of writ petition, the petitioners had sought for setting aside of the mutation in favour of Yadvinder Singh. Some other allied relief had also been asked for. It is settled law that mutation does not confer any title as also that on the Civil Court deciding that the plaintiffs are owners of the property in dispute, mutation that came to be sanctioned in favour of Yadvinder Singh on the dint of the impugned judgment and decree has to be set aside.

Consequently, the writ petition is also allowed and the mutation sanctioned in favour of Yadvinder Singh is ordered to be set aside. There is no need to give any other directions in the writ as the same have been given while deciding the civil suit as such.

C.O.C.P. No. 838 of 1993.

In this contempt petition brought about by Smt. Shakuntla Devi widow of Lal Singh and her two major and one minor sons, namely, Bharat Singh Yadav, Vineet Yadav and Sharad Yadav a serious complaint of wilful, intentional and deliberate disobedience of the orders of this Court dated March 5, 1993 has been made. Primarily, the case of the petitioners herein is that respondent No. 6 and his associates respondents 7 to 12, namely, Amarjit Singh, Brij Bhan, Harinder Singh, Kanshi Ram, Atul Nibre and Jaggi in connivance with the police and local administration had dispossessed them from the land fully described in paras 1 and 2 of the petition, measuring 116 kanals 11 marlas situated in the heart of DLF Qutab Enclave, Part II, Gurgaon which is a posh colony of the area and the market value of the same comes to about eight crores of rupees. Petitioners are simple law abiding persons. Petitioner No. 1 is widow and is in helpless condition. Petitioner No. 2 Bharat Singh has been at Lucknow (UP) and petitioner No. 3 Vineet Yadav is studying in B. Tech. in Banaras Hindu University, Banaras (UP) while petitioner No. 4 Sharad Yadav is still minor. Respondent No. 6 had obtained a judgment and decree dated October 29, 1990 from the Court of Sub Judge IIIrd Class, Gurgaon by fraud, impersonation and by adopting all possible means of fraud to the effect that petitioners had given 116 kanals 11 marlas of land to him in exchange of some house which, in fact, was already in their possession for the last more than 30 years. A copy of the decree sheet has been annexed with the petition as Annexure P1. It is the positive case of the petitioners that after obtaining copy of the decree, respondent No. 5 got the file containing all the documents, i.e. power of attorney, statements etc. misplaced in connivance with the court officials and kept the factum of decree having been passed secret for nearly eight months. In the month of May, 1991, Yadvinder Singh got the mutation sanctioned vide report No. 671 dated May 8, 1991. Petitioners were shocked to know about the decree and mutation. They applied for inspection of the file in the Court of Sub Judge, Gurgaon and came to know that the file had been misplaced. Faced with such a situation, they immediately approached the District Judge, Gurgaon and submitted an application with a request that the file be got made available to them but the file was not traceable. The petitioners then challenged the judgment and decree dated October 29, 1990 in the Court of Sub Judge, Gurgaon. They also moved an application for interim injunction which was initially granted but later vacated on October 29, 1992. Constrained, the petitioners filed an appeal before the District Judge, who initially granted stay but ultimately dismissed the appeal on January 23, 1993. January 24, 25 and 26, 1993 were holidays in the High Court. The petitioners could approach the High Court only on January 27, 1993. However, respondent No. 6 manipulated to lease out the land on January 25, 1993 for 99 years in favour of respondents 7 and 8 and also fabricated sale deeds in favour of the respondents 9 and 12 by selling the same on January 27, 1993. Respondents 6 to 12 are stated to be very influential persons and backed by the political party. They were bent upon to dispossess the petitioners and grab their land. Respondents fully well knew that the impugned decree was subject matter of challenge. On sanctioning of the mutation, petitioners filed Civil Writ Petition No. 2377 of 1993 which came up for hearing before a Division Bench of this Court on March 5, 1993 when notice of motion was issued and the parties were directed to maintain status quo regarding possession till further orders. It is positive case of the petitioners that a copy of the notice along with stay order was served on all the respondents as per report of the process servers. A copy of the stay order was also handed over to the patwari of the area on March 10, 1993 and he had signed in token of the receipt of copy of the stay order. The petitioners have also attached khasra girdawari of the land as Annxure P5 with the contempt petition. The petitioners have also relied upon a news item published in the Daily Tribune dated September 22, 1993, which, insofar as relevant, reads thus :

"By a strange quirk of circumstances, 11.25 acres belonging to a widow of Sarhaul village were allegedly got transferred fraudulently by one Yadvinder Singh Yadav in his name on May 8, 1991 (Surprisingly the original conveyance deed relating to this transfer is said to be missing from the records of the Tehsildar). The widow fought a protracted legal battle to secure her right and ultimately succeeded in getting a stay order from the Punjab and Haryana High Court. But even the court''s stay order did not deter the land grabbers who went ahead and appropriated the land to themselves.

The land which has a market value of approximately Rs. 10 crores has now reportedly been sold for a paltry sum of Rs. 32.50 lakh. The persons involved in this scandalous deal are highly influential and are said to be close to the family of the Chief Minister.

However, the widow approached the Commissioner, Gurgaon Division, Mr. M.D. Asthana for justice. When the official initiated an inquiry into the land deal, he was transferred. He has been replaced by a "softer'' official who is likely to retire in less than a year.

It is then the case of the petitioners that the mighty respondents on September 15, 1993 at 10 A.M. came on the spot under the directions of respondent No. 1 to take physical possession of the land from the petitioners accompanied by SHO Sadar Shri Sagar Singh, Inspector and two buses full of constables, Gypsy Jeep and also accompanied by Jaswant Singh Patwari and Virender Kumar Pahwa, Girdawar. These revenue officials delivered the possession of the land on the spot to respondents 6 to 12 and treated badly petitioners on the spot. They cried for help but of no avail. The petitioners asked for copy of orders of the Deputy Commissioner but no such orders were shown or given to the petitioners. The petitioners were told verbally that all this had happened as per the orders of the Deputy Commissioner, Gurgaon Shri I.D. Kaushik and Tehsildar Shri Khalil Ahmed. The respondents removed the tractor No. HR9528 of the petitioners from the land by force and ploughed their own Ford Tractor and cut the Jawar crop. The petitioners represented this matter to the Senior Superintendent of Police, Gurgaon. Petitioner No. 1 had written letter hurriedly on the spot and handed it over to the SSP, Gurgaon. Petitioner No. 1 had also addressed a copy of the letter aforesaid to the Deputy Commissioner, Gurgaon and SHO, Police Station Sadar Gurgaon. The petitioners were not permitted to take even photographs on that day and after another two three days. It is then pleaded that the respondents have got no regards for the orders of this Court and had intentionally, wilfully and in utter disregard of the court changed the status regarding possession. They had voluntarily and deliberately disobeyed the orders of this Court dated March 5, 1993 and, thus, committed contempt under Section 12 of the Contempt of Courts Act, 1971. Petition is supported by an affidavit of Shakuntla Devi widow of Lal Singh.

A copy of the decree dated October 29, 1990 has been annexed as Annexure P1. Annexure P2 is a copy of lease deed which was executed by Yadvinder Singh in favour of Amarjit Singh on January 25, 1993 for 99 years, for a paltry sum of Rs. 1,92,000/. Annexure P3 is the sale deed executed by Yadvinder Singh in favour of Harinder Singh regarding land measuring 34 kanals 5 marlas. Annexure P4 is the initial order regarding maintenance of status quo passed by Division Bench of this Court on March 5, 1993. Annexure P5 is khasra girdawari of dispute upto March 5, 1992. This shows Shakuntla Devi to be in selfcultivation of the land in dispute. Annexure P/6 is the news item, relevant part of which has been extracted above. Annexure P/7 is an application filed by Shakuntla Devi to the SSP complaining about her dispossession despite stay orders. Annexure P/8 is a letter written by Shakuntla Devi which has been addressed to the SHO, Police Station, Sadar Gurgaon praying for action against erring police officials and others who had acted in collusion with Yadvinder Singh and others in taking illegal possession.

Pursuant to notice issued by this Court, respondents have filed their respective written statements. Respondent No. 1 Deputy Commissioner, in his reply has made no comments on paras 1 to 6 of the petition. In reply to para No. 9 he pleads that respondents 7 and 8 filed an application dated August 16, 1993 for the demarcation of the land which was marked by him to respondent No. 2 for necessary action on August 13, 1993. Respondent No. 2 marked it down to subordinate revenue officials for needful action. On the report of the subordinate officials, respondent No. 2 wrote to respondent No. 1 on September, 1, 1993 for providing police help so as to maintain peace. Thereupon, respondent No. 1 wrote to SP, Gurgaon on September 2, 1993 for providing police help in connection with demarcation of land requested for by respondents 7 and 8. The demarcation was given on the spot on September 15, 1993 accordingly. He further pleads that nothing was done in any undue haste and the process was completed in about one month in routine. Insofar as application of petitioner is concerned, he pleads that the same was received by him on September 20, 1993 and it was marked to the officials concerned for needful action. He had not violated any orders passed by this Court.

Respondent No. 2 Khalil Ahmad, Tehsildar, Gurgaon, in his separate written statement, by way of preliminary objections has alleged that the occurrence dated September, 15, 1993 is conjectural. The factual position is that an application was filed by respondents 7 and 8 on August, 16, 1993 before the Deputy Commissioner, Gurgaon with a request that demarcation be done of the given killa numbers measuring 104 Kanals 5 marlas. On receipt of the said application, respondent No. 1 marked it to respondent No. 2 with the remarks "for necessary action" on August, 19, 1993. The said respondent, on receipt of the directions of the Deputy Commissioner, marked the same to the Girdawar Halqa Shri Virinder Kumar Pahwa, respondent No. 4 with the remarks ''Report after demarcation as per law''. He has annexed with his written statement, the proceedings noted above as Annexure R2/1. The Girdawar Halqa reported on August 20, 1993 that when he went for demarcation, he was interrupted by some persons as such a request for police help was made. Acting on the report of the Girdawar Halqa, respondent No. 2 wrote to the Deputy Commissioner on September 1, 1993 for police help. The Deputy Commissioner, acting on the facts narrated above. directed the SSP, Gurgaon vide order dated September, 2, 1993 to provide police help under intimation to respondent No. 2. A copy of the said order of the Deputy Commissioner has been annexed as Annexure R2/2. Girdawar Halqa acting on the directions and in the facts and circumstances, narrated above, went to the spot and conducted demarcation proceedings as required in discharge of his official duties on September, 15, 1993 vide Annexure R2/3. As per Land Record Code, demarcation proceedings are not the proceedings for handing over possession or change of possession of the land. It is only to demarcate the land as per the number and area visavis the Shajra. He then admits the civil court proceedings, grant and vacation of stay by various courts but does not admit the factum of grant of stay by Division Bench of this Court in the writ petition aforesaid on March 5, 1993. He then pleads that in fact the petitioners have committed a grave contempt by making allegations of mala fide and police influence over the judiciary. Parawise reply is no different than the pleadings contained in preliminary objections of the written statement. The mention of the judgment and decree under challenge has also been made and it is further pleaded that till such time the judgment and decree is set aside by a competent court, no exception can be made. The matter is still subjudice and is at an initial stage. He further pleads that the order dated March 5, 1993 wherein this Court had directed to maintain status quo regarding possession has not been violated by him in any manner. He further pleads that he had worked in his official capacity and that no action was taken by him to disturb the physical possession over the land. On a request for demarcation, the same was marked by the Deputy Commissioner to him which was further marked to Girdawar Halqa. The delivery of possession or disturbance thereof was not involved in any way. Police help was sought on a report of the Girdawar Halqa which was allowed by the Deputy Commissioner vide order Annexure R2/2. He denied that tractor No. GR9528 was removed from the spot by force or otherwise or that the land was ploughed and Jawar crop was cut.

Respondent No. 3 Jaswant Singh Patwari Halqa has also filed separate written statement wherein it has been pleaded that on September 15, 1993 demarcation of the land was done in accordance with the orders of the Deputy Commissioner. He has reiterated the way the demarcation was given, as has been stated by respondent No. 2. He further states that an entry had been made in Khasra Girdawari for Rabi crop for the year 1993 (March 1993) that no change of entry is made in Khasra girdawari for the crop Rabi, 1993 in accordance with the orders of the High Court dated March, 5, 1993. However, the possession of Amarjit Singh and Brij Bhan was found as per mutation No. 697 dated 27.1.1993. He further pleads that he made entries in accordance with the registration of lease deed or sale deeds. He further pleads that he had not violated order dated March 5, 1993 On the contrary, it is clear from the contents of the above paras that he had entered in the remarks space that no entry shall be made in due deference to the orders of this Court.

Respondent No. 4 Virinder Kumar Pahwa, Girdawar Halqa has also filed separate but identical written statement.

Yadvinder Singh respondent No. 6 by way of separate written statement, after detailing the decree that he had obtained, further pleaded that the petitioners were not in physical possession of the land in dispute. It is he who was in possession of the same before and after the impugned decree. Mutation was sanctioned on May 8, 1991 in his favour and on January, 25, 1993 he executed a lease deed in favour of Amarjit Singh and Brij Bhan regarding land in dispute for 99 years. The possession of the land was delivered by him to respondents 7 and 8 on the date of execution of the sale deed. He then executed sale deeds on January 27, 1993 after the District Judge had vacated the stay. With regard to news item, he states that the same was published without ascertaining the facts from him. He was in possession of the land in dispute before the decree dated October 29, 1990 was passed and remained as such upto January 25, 1993 when he executed the lease deed in favour of respondents 7 to 8. With regard to passing of order by this Court on March 5, 1993 he states that the said order was regarding maintaining of status quo which obviously means that the party which was possession on the date of order was to remain in possession.

Respondents 7 and 8 have also filed separate written statement. They, after giving details of the civil suit and various orders passed therein, plead that in an attempt to frustrate the right of respondent No. 6 in respect of land in dispute, petitioners instituted a civil suit No. 386 of 1991. The plea of the petitioners that they were in possession of the land in dispute was false. Respondent No. 6 was under no restraint or injunction to lease out the land to respondents 7 and 8 and on January 25, 1993 the said respondent handed over possession of the land to respondents 7 and 8 and it was so also stated in the lease deed that the possession of the land has been handed over to the lessee. Respondent No. 6 later sold the said land to respondents 9 to 12 vide four separate sale deeds dated January 27, 1993. It is further pleaded that respondents 7 and 8 were not impleaded as partyrespondents in the writ petition. It is also pleaded that even though stay was granted on January 27, 1993 in Civil Revision, yet the petitioners sought stay in the writ petition and this Court passed order dated March 5, 1993 whereby statusquo regarding possession was directed to be maintained. However, respondents 7 and 8 were already in possession of the land obtained by them on lease from respondent No. 6 who delivered the possession to them on January 25, 1993, the day when lease deed in favour of respondents 7 and 8 was executed. It is further pleaded that the demarcation of the land had to be asked for because in its absence it was causing some confusion and therefore, in order to have clear picture, respondents 7 and 8 put an application on August 16, 1993 before the Deputy Commissioner requesting him that demarcation of the land be made. This application was marked to the Tehsildar for necessary action on August 19, 1993 and the same was further marked to Girdawar Halqa who and the Patwari reported on August 20, 1993 that when they went to the spot, they were not allowed to carry out demarcation and, therefore, they asked for police help. This request of Girdawar Halqa and Patwari was endorsed by the Tehsildar to the Deputy Commissioner on September 1, 1993, who agreed to it on September 2, 1993. However, in spite of the order of the Deputy Commissioner dated September 2, 1993, the Girrdawar Halqa took his own time for the reasons best known to him and went to the spot only on September 15, 1993 and then carried out the demarcation. There was no question of taking possession by respondents 7 and 8 as they were already in possession. All that was done was that their land was demarcated according to record. The order to maintain statusquo means maintenance of possession of the party on the date the order of the court was passed.

Respondents 9 to 12 have also filed separate written statement, Besides pleading that they are in possession of the land in dispute after registration of the sale deeds in their favour, their case on other aspects of the matter is on the line as given by respondents 6, 7 and 8.

Whereas, it is the positive case of the petitioners that they were dispossessed on September 15, 1993, on which date, stay for maintenance of statusquo was in existence, case of the respondents is that Yadvinder Singh had obtained possession even prior to his filing suit resulting into judgment and decree that has been impugned in the civil suit now by Shakuntla Devi and others. He had handed over the possession to lesseesrespondents 7 and 8 on January 25, 1993 who in turn had handed over to vendees from Yadvinder Singh, i.e., respondents 9 to 12 on January 27, 1993. The method by which impugned judgment and decree might have been obtained apart, it is admitted between the parties that the judgment and decree with regard to land, subject matter of dispute, was granted in favour of Yadvinder Singh on October 29, 1990. Pursuant thereto, mutation was sanctioned in favour of Yadvinder Singh on May 8, 1991. The factum of petitioners having challenged the judgment and decree and various states when the stay was granted by the Court of the first instance or the appellate court or the High Court is also not in dispute. That the High Court had granted stay on a revision petition preferred by the petitioners on January 27, 1993 is also not in dispute. Same is true with regard to order to maintain statusquo as issued by the Division Bench of this Court on March 5, 1993. Yadvinder Singh, lessees and vendees from him also do not dispute the knowledge of order dated March 5, 1993. However, they state it to be an order of maintaining statusquo and it is their positive case that they have violated no orders of this Court as they were in possession of the land in dispute either on the date when the lease deed was executed in favour of respondent 7 and 8 or on the date when the sale deeds were executed in favour of respondents 9 to 12. The only question, thus, that needs adjudication by this Court is as to whether the petitioners were actually dispossessed on September 15, 1993 or on the said date they were not in possession and, therefore, the possession was either with the lessees or with vendees, as the case may be. This contempt petition, Civil Writ Petition No. 2377 of 1993 and civil suit filed by Shakuntla Devi and others, as per orders passed earlier, have to be decided together. I have already recorded judgment in the civil suit and the writ petition. A positive finding of fact has been recorded in the civil suit that Yadvinder Singh or those who claim from him, i.e. lessees or vendees, never came into possession of the suit land till September 15, 1993 when the petitioners were forcibly dispossessed in a wholly illegal manner.

The pleadings of the parties in the contempt petition have since already been referred to. Insofar as respondents, other than official respondents, are concerned, they have not denied the factum of stay granted by the Division Bench of this Court in the Writ Petition, referred to above, on March 5, 1993. The case of the official respondents is also that possession was not handed over but only demarcation was carried out at the spot with the help of the police and revenue officials. This court has already returned a finding of fact that in the garb of giving demarcation of the land, petitioners were dispossessed forcibly from the land in teeth of the stay granted by Division Bench of this Court on March 5, 1993. The findings on the crucial point having since already been recorded in the civil suit, what, however, still additionally requires to be mentioned is that whereas, the stand of the official respondents is that the subordinate revenue officials had felt necessity of providing police help and, therefore, the Deputy Commissioner, on September 2, 1993 ordered for providing police help so as to maintain peace, respondents 7 and 8 in their separate written statement have stated that they were already in possession of the land which was taken by them on lease from respondent No. 6 who had delivered possession to them on January 25, 1993, when the lease deed was executed in their favour. They have further stated that the demarcation of the land had to be asked for because in its absence it was causing some confusion and therefore, in order to have clear picture, said respondents put an application on August 16, 1993 before the Deputy Commission requesting him that demarcation of the land be made. These respondents have not pleaded anything with regard to obstruction caused by someone which might have necessitated police help. In the application made by them, Annexure R2/1 all that they have stated is that they are lease holders and in possession of land measuring 104 kanals 5 marlas which has been encroached upon by the adjacent land owners. On this averment, they prayed for demarcation to be carried out through Naib Tehsildar and Halqa Kanungo. Not a word is mentioned as to who were encroachers, how much land was encroached upon and that if the police help was at all required. As mentioned above, the Deputy Commissioner, marked this application to Tehsildar on September 1, 1993. Kanungo and Patwari Halqa who are stated to have visited the spot on August 20, 1993 only mentioned that they had gone in village Sarhaul for demarcation. There some people did not allow the demarcation work to proceed. Rather they were bent upon to resort to fight. In this endorsement, nothing at all is mentioned as to who were those people who did not allow the demarcation work to proceed. Whether they were petitioners or neighbouring landowners is also not mentioned. It is not possible for this Court to believe that those who have been in possession of the land since about last eight months and which possession was handed over to them by the one who was stated to be in possession since 1989, would not know as to who were the encroachers and what was their dispute. The Tehsildar on September 1, 1993 simply accepted the report of the Girdawar Halqa by further mentioning that there was apprehension of breach of peace. Naturally, who were the persons from whom there was apprehension of breach of peace have not been mentioned. This report was blindly followed by the Deputy Commissioner who ordered for police help by addressing a letter to the Superintendent of Police, Gurgaon dated September 2, 1993. While giving demarcation vide Annexure R2/3, presence of socalled encroachers has not been mentioned. It is rather strange to note that in the report it is mentioned that the measurement/demarcation was started from the western corner of killa No.36/1 and was admitted by those present as permanent correct point. Who were those who admitted the correctness of the pacca point is not known. What is still far more interesting is that in the last line of report it is mentioned that no encroachment was detected at the spot. Last line mentioned in the report, Annexure R2/3 completely nails the case of the respondents. There was no encroachment made by any one. It was a simple case of specific khasra numbers having been taken possession of the respondents in teeth of the stay orders passed by Division Bench of this Court on March 5, 1993. As mentioned above, ever since the petitioners were in possession, there was no dispute regarding : demarcation of the suit land. There was no demarcation dispute between Yadvinder Singh and somebody else if Yadvinder Singh may have ever come into possession. For years and years there was no demarcation dispute at all. How it sprang up only when lessees allegedly entered into possession is for any one to guess. In the written statement filed on behalf of the respondent No. 2, it has also been mentioned that as per the Land Record Code, demarcation proceedings are not the proceeding for handing over possession or change of possession of the land. It is only to demarcate the land as per the numbers and area visavis the shajra. If that be so, precise area of the land in dispute was mentioned not only in the impugned judgment and decree but also in the lease deed. The chunk of land as was in possession of the plaintiffs hrd allegedly come into possession firstly of Yadvinder Singh and later to the lessees. The area already stood and demarcated. It is rather interesting to note that in the report Annexure R2/3 there is no mention that the khasra numbers were checked visavis Shajra. All that is mentioned is that demarcation was carried out at the spot with regard to land measuring 104 kanals 5 marlas through mutation No. 697. Applicants were found present at the spot. In the presence of the gathering, correctness of the Jarib was checked with the help of Inchitape for the satisfaction of those present. It is then mentioned that demarcation/measurement of the killas numbers, which have been separately mentioned, was carried out and raw burjies consisting of sand were set up. From the report, it is not made out that Sajra was even carried at the spot. Further, the raw burjies consisting of sand were put up. The sand burjies could have been removed by the encroachers, if any, the very next moment the police had left the spot. If there was actually a dispute with regard to demarcation with anybody, there was no question of putting raw burjies consisting of sand. It is quite apparent to this Court that all these applications and endorsements thereon were enacted as a highpowered drama simply with a view to take forcible possession of the suit land from the petitioners. As long as stay granted by Division Bench of this Court on March 5, 1993 was in existence, possession could not be taken. A false story of demarcation was, thus, introduced in a most clandestine manner. Crude way to get away from the effect of violating stay order issued by this Court was deliberately coined.

In view of discussion made above, the Court holds that the petitioners were in possession of the land in dispute upto September 14, 1993. Concedely, stay order directing the parties to maintain status quo was granted on March 5, 1993. This stay order was in the knowledge of the respondents. In utter violation of the order dated March 5, 1993 passed by Division Bench of this Court, respondents 6 to 12 took forcible possession of the land with the active connivance of officials respondents 1 to 5. It may be mentioned here that respondent No. 5, Inspector Sagar Singh has not filed any reply even though he was duly served in the contempt petition. Respondents 6 to 12 have not even denied their presence on September 15, 1993 when the petitioners were dispossessed. The contempt charge against all the respondents is, thus, proved to the hilt. Even though an objection by some of the respondents has been taken that they were not party to the writ petition in which stay was granted, but in view of the settled law that it is not necessary that a charge of contempt can successfully be levelled against only a partyrespondent, and that all those who are privy, be in assertion of their own right or supporting someone else, who might assert his right, are all liable for contempt. Reference in this regard may be made to a Division Bench judgment of the Andhra Pradesh High Court in R. Narapa Reddy v. Jagarlamudi Chandramouli and others, AIR 1967 AP, 219 wherein it was held that "it is now well settled that the Court has undoubted jurisdiction to commit for contempt a person not included in an injunction and/or not a party to the action, who, knowing of the injunction, aids and abets a defendant in committing a breach of it." All ingredients of civil contempt as defined in Section 2(1)(b) of the Contempt of Courts Act, 1971 have been overwhelmingly made out. I hold all the respondents guilty of contempt charge levelled against them.

This Court is conscious that the power under the Contempt of Courts Act is of an extraordinary nature and the Court should be generally reluctant to exercise the power particularly in a civil contempt. However, when a clear case of contumacious conduct, not explainable otherwise arises, then the contemner must be punished. The charge of deliberate contempt has clearly been established on the part of the respondents. It is of paramount consideration to uphold the dignity, power, prestige and authority of the Courts of law and justice in a democratic society founded on Rule of Law, and implicit obedience to the orders of the Courts, can be minimised only at the risk of weakening the foundations of our constitutional set up and correspondingly endangering our very democratic existence. In the present case, contempt committed by the respondents is of a very heinous character and they have stuck to their insistence on justification of conduct on false please. Thus, they have only aggravated the offence. Till the last moment, the respondents have not shown even the slightest expression of regret leave alone apology and this conduct of the respondents would further add to the gravity of the offence.

Before, however, the court may part with the orders in this contempt petition, it would like to mention that whereas respondents 6 to 12 had some interest in the matter, insofar as respondents 1 to 5 are concerned, they were supposed to uphold the law. They were responsible for maintaining the dignity of the Courts and to protect those who were in distress and needed help. Protectors of law, in the present case, became breakers thereof. Holding high positions, where they could come to the rescue of the petitioners, they chose to side with the law breakers. All entreaties made by the widow of Lal Singh, namely, Shakuntla Devi to the Deputy Commissioner and the police fell on deaf ears. It was naturally to happen as official respondents 1 to 5 had connived with respondents 6 to 12 in wrongful, illegal and forcible dispossessing the petitioners from the suit land despite stay granted by the Division Bench of this Court in their favour. Their act and conduct has to be condemned in severest words. This Court does not hesitate even for a second to hold that the official respondents 1 to 5 have just acted contrary to what they were supposed to do. By their such act and conduct, it is natural that the common men would lose faith in the Administration. These official respondents, who were to serve the cause of humanity, became part and parcel of illegalities indulged in by respondents 6 to 12. The present case provides a classic example where the official respondents helped the law breakers in a most illegal and cloistered manner. The present is, thus, case where no leniency requires to be shown to the respondents. The power of the court under the Contempt of Courts Act is to punish a contemner for a maximum period of six months simple imprisonment and to impose a fine, if Rs. 2000/. The respondents deserve the maximum punishment. They are, thus, ordered to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 2000/ each. If fine is realised, the same shall be paid to the petitioners in equal shares.

Inasmuch as appeal in a contempt matter lies as a matter of right, sentence imposed upon the respondents shall remain suspended for a period of fifteen days. Registrar (J) is directed to supply a copy of this order to the contemners free of costs.