Surjo Dev vs Arvind Overseas Project Services Pvt.Ltd.

A.S. Nehra, J.—This appeal is directed against the judgment and decree dated 25th of April, 1990 passed by the Additional District Judge, Faridabad, by which the appeal filed by the defendant was allowed and the suit filed by the plaintiff was dismissed.

Plaintiff filed a suit for declaration and consequential relief for permanent injunction. It was averred in the plaint that the suit land measuring 22 kanals was on 99 years lease with her from 6th November, 1974 to 6th November, 2073 on payment of Rs. 200/ per year and registered lease deed bearing No. 2847 dated 6th November, 1974 had been executed in her favour by Sohan Lal and others. It was further averred that she has never surrendered her leasehold rights in the suit land, nor she has been evicted by the owners so far, that she is in its continuous possession, and that the Patwari of the village wrongly deleted her name in the jamabandi for the year 198283 and the khasra girdawari after 198283 carry entries on the basis of jamabandi for the year 198283. It was further averred that her name finds mention in the jamabandi for the year 197778 and since she continued in possession as a lessee, therefore, jamabandi for the year 198283 was liable to be corrected and her name was liable to be entered in column Nos. 5 and 9 of the jamabandi. It was also averred in the plaint that the defendant alleged to have purchased the suit land and under the garb of the sale deed dated 11th March, 1986 defendant is trying to interfere in her possession to which the defendant has no right and as such defendant be restrained from interfering in her possession.

In the written statement defendant has denied that the plaintiff is a lessee or for that matter she is in possession of the suit land. According to the defendant, if there is any such lease deed, then the same is fake, bogus and sham document created as a device to defeat the right of preemption in respect of the sale of the suit land made by Sohan Lal and others in favour of Vidyawati. Further the case of the defendant is that the sale deed and lease deed are the part of the same transaction through split into two documents. According to the defendant, the lease deed was never acted upon by the parties. Defendant has denied that the plaintiff never surrendered lease hold rights or she had ever been in possession of the suit land. The case of the defendant further is that defendant has purchased 55 kanals 16 marlas of land (out of total land 129 kanals 4 marlas) vide registered saledeed dated 11th of March, 1986 for a consideration of Rs. 2,09,250/ from the previous owner namely Vidyawati Saini through Rajinder Singh Saini her general attorney after due enquiry and verification about the ownership and possession of Vidyawati from the revenue record of the patwari and also at the spot. It has further been averred in the written statement that the possession of the land in dispute was handed over to the defendant at the time they had purchased the suit land. It was further averred that the plaintiff has got no cause of action, nor there is any question of holding out any threat by the defendant to the plaintiff for dispossession other objections taken are that the suit land is not properly described, plaint is not properly signed and verified; the suit is bad for nonjoinder of necessary parties and the plaintiff is estopped by her act, conduct and acquisition from filing the suit. On the pleadings of the parties, following issues were framed :

Whether the plaintiff is perpetual lessee in possession of the suit land, as alleged ? OPP

Whether the plaintiff never surrendered the lease hold rights and was never ejected as alleged ? OPP

Whether the suit is not maintainable ? OPD

Whether the plaintiff has no locus standi to file the present suit ? OPD

Whether the suit is not valued properly for the purposes of court fee and jurisdiction ? OPD

Whether the suit is bad for nonjoinder of necessary parties ? OPD

Whether the plaintiff is estopped from filing the present suit by her own act and conduct ? OPD

Relief.

Issue Nos. 1 and 2 were decided in favour of the plaintiff and against the defendant. Issue Nos. 3, 4, 5, 6 and 7 were decided against the defendant and in favour of the plaintiff and the suit was decreed by the Senior Sub Judge, Faridabad on 5th April, 1989.

During the pendency of the appeal, an application under Order 41 Rule 27 Civil Procedure Code was filed by the defendant for permission to lead additional evidence to produce the following documents :

i) Agreement to sell dated 29th November, 1985 executed by Vidyawati in favour of the defendant.

ii) Khasra girdawaris from Kharif 1986 to Rabi 1988.

iii) Akssajra for the year 195354.

(iv) Certified copy of the report roznamcha No. 89 dated 10th of October, 1982 of village Chhainsi.

The application filed by the defendant was allowed to the extent that documents mentioned in (ii) and (iv) above were brought on record as additional evidence.

The following documents were produced in evidence by both the parties

Exh. P1 Special power of attorney

Exh. P2 Jamabandi for the year 197778 (Vidyawati w/o Jai Bhagwan, owner)

Exh. P3 Copy of mutation of 1975 (Sohan Lal and others)

Exh. P4 Lease deed by Sohan Lal in favour of Surjo Devi.

Exh. D1 Saledeed by Sohan Lal in favour of Surjo Devi.

Exh. D2 Saledeed executed by Smt. Vidyawati Saini wife of Jai Bhagwan.

Exh. D3 Copy of mutation.

Exh. D4 Copy of the plaint before Assistant Collector, 1st Grade.

Exh. D5 Copy of written statement filed before Assistant Collector 1st Grade dated 16th May, 1979.

Exh. D6 Copy of the statement made by Bir Singh in the Court of Assistant Collector Ist Grade on 16th May, 1979.

Exh. D7 Copy of the order dated 16th May, 1979 passed by the Assistant Collector 1st Grade.

Exh. D8 Copy of the decree sheet passed by the Assistant Collector 1st Grade on 16th May, 1979.

Exh. D9 Copy of the resolution passed by the Board of Directors on 22nd of February, 1988.

Exh. D10 Copy of the mutation.

Exh. D11 Copy of the jamabandi 197273.

Exh. D12 Copy of jamabandi 198283

Exh. D13 Copy of the mutation.

Mark A Copy of the power of attorney.

Admittedly, lease deed in favour of plaintiff wife of Bir Singh and saledeed in favour of Vidyawati wife of Jai Bhagwan were executed on the same day and bear the serial numbers one after the other. Plaintiff is mother of Vidyawati and at the time of the execution of lease deed and sale deed she was not present. Lease deed and saledeed have been signed on behalf of plaintiff and Vidyawati, by Bir Singh, husband of the plaintiff and father of Vidyawati. Lease deed was registered first and immediately thereafter the saledeed was registered. The witnesses on the saledeed and lease deed are the same. Lease deed Ex. P4 bears serial number 2847 while the saledeed in favour of Vidyawati bears serial number 2848 and both these documents are singed/thumb marked by Sohan Lal, Jyoti Parshad, Sunder Lal, Gokal Chand, Chameli, Vidyawati, Jagdish Parshad and Vasudev Chand has signed as a general power of attorney on behalf of Shiv Charan and as such it can be well said that the lease deed was executed to defeat the right of prospective preemptors, if any, because in that case, possession was to remain with Vidyawati itself through her mother Surjo Deviplaintiff. Plaintiff has been introduced as a lessee to defeat the right of preemption against Vidyawati who has purchased the land on the same day i.e. 6th November, 1974, when the lease deed was executed in favour of the plaintiff and that is why a lease deed was executed for 99 years in favour of the plaintiff. It has been held by this Court in Gurinderjit Singh v. Gurdip Singh, AIR 1972 P&H 322 that a vendee can defeat the preemptor''s right by legitimate means but this object cannot be obtained by bringing about the transaction which is not genuine or not acted upon. In the case in hand, the sequence of events and the facts brought on record prove that neither the transaction of execution of lease deed was genuine nor it was acted upon.

Sale deed Ex. D2 executed in favour of the defendant on behalf of Smt. Vidyawati is signed by Rajinder Singh as her attorney who is her brother. Rajinder Singh is son of the plaintiff. Jamabandi Ex. P2 and mutation Ex. P3 which have been produced on the record of this case by Surjo Devi plaintiff had been obtained by Rajinder Singh which is clear from the endorsements on documents Ex. P2 and Ex. P3. Ejectment application had been filed on behalf of Vidyawati, Maya Devi, Vijay Kumari and others against Ghasi Ram and Rajinder Singh has acted as a general power of attorney of Vidyawati and others which is clear from the title of the petition Ex. D4. This ejectment application was allowed on the statement of Bir Singh general power of attorney of Ghasi Ram which is clear from Ex. D5, D6 and D7. Bir Singh is husband of plaintiff Surjo Devi and father of Vidyawati and the land which was shown to be in possession of Ghasi Ram includes the land in dispute which has been sold by Vidyawati vide saledeed Ex. D2. Bir Singh is brother of Ghasi Ram and they are sons of Harphool Singh. Bir Singh is general power of attorney of plaintiff Surjo Devi in the present suit. The general power of attorney in favour of Bir Singh is marked as Exhibit P1. Besides this, in jamabandi for the year 197778 Ex. P2 in column No. 12 there is a note regarding ''tarak pattanama'' that is giving up lease rights or setting aside of lease deed. Ex. D10 which is a copy of the mutation also shows that the mutation has been sanctioned in the name of Vidyawati and the rights of plaintiff lessee had extinguished and on that base this mutation was sanctioned. In Ex. D10 in column 10 meant for showing the possession of land, possession of Vidyawati is shown and in column No. 13, it is mentioned that lease has been cancelled vide report number 89 dated 10th of October, 1982. This mutation was sanctioned on 10th of May, 1983 in the presence of Rajinder Singh son of the plaintiff. The order passed by the Assistant Collector reads as under:

"Today in the General Meeting as identified by Sh. Hira Lal, Nambardar of village, Rajinder Singh on behalf of Smt. Vidyawati, having appeared, has admitted the event of surrender of lease and change of possession, to be correct. This event has effected as per the order of the Court. Copy of the said order of the Court is attached with mutation No. 4794. Hence, Khewat No. 9716 regarding land measuring 220 by Smt. Surjit Devi, lessee, in favour of Smt. Vidyawati, owner, is sanctioned as per the new entry. Sd/

A.C. II Grade."

Till today neither the jamabandi for the year 197778, nor the mutation Ex. D10 has been challenged, rather the documents Ex. D4 to Ex D7 reference to which has already been made show that after ''tarak patta'' proceedings, land was given to Ghasi and later on Ghasi Ram was ejected from the suit land which is clear from the ejectment orders by the Assistant Collector and as such it can be said that the lease in favour of the plaintiff was never intended to be acted upon or acted upon. The lease in favour of the plaintiff was not genuine if at all it was there. The right of the plaintiff had extinguished which is proved from documents ExP2 and Ex. D10 and Vidyawati had become owner in possession and she had sold her rights in the suit land to the defendant and delivered the possession to the defendant. Plaintiff in the present suit has not impleaded Vidyawati who had sold the suit land as a party and as such she cannot challenge any right which Vidyawati had and which is mentioned in Ex. P2 and mutation Ex. D10. In case the plaintiff wanted to challenge Ex. P2 and mutation Ex. D10 then Vidyawati was a necessary party. A specific objection has been raised by defendant and issue number 6 was also framed to this effect but in spite of this the plaintiff did not implied Vidyawati as a party. Learned counsel for the appellant, Mr. O.P. Goyal, Senior Advocate, has argued that the appellant is in possession since 1974 when the lease deed was executed in her favour. He has further mentioned that this fact finds mention in the lease deed that the possession of the suit land has been delivered to the appellant. Sale deed in favour of Vidyawati was executed on the same day but in the saledeed it has been specifically mentioned that Vidyawati had been given symbolic possession of the suit land. He has further contended that on the basis of lease deed mutation has been sanctioned in favour of the appellant on 7th February, 1975 vide Ex. P3 and appellant has been shown as a lessee upto 197778 which is proved from jamabandi Ex.P2.

Mr. Hira Lal Sibal, Sr. Advocate has submitted that the lease deed in favour of the plaintiff was never intended to be acted upon and it was not genuine and that this lease deed was created to defeat the right of preemption. He has further contended that in the jamabandi for the year 197778 Ex. P2 in column No. 12 there is a note regarding ''tarak patta'' i.e. giving up lease rights, that Ex. D10 which is copy of the mutation also shows that the mutation has been sanctioned in the name of Vidyawati and the right of the plaintiff lessee had extinguished and that on that base mutation Ex. D10 was ssanctioned on 10th May, 1983. It has been further contended by the learned counsel for the respondent that till today neither the jamabandi for the year 197778, nor the mutation Ex D10 has been challenged by the plaintiff, rather the documents Ex D4 to Ex D7 show that after the ''tarak patta'' proceedings, the suit land was given to Ghasi and later on Ghasi was ejected from the suit land as such it can be held that the lease was never intended to be acted upon or acted upon.

It has further been contended by Mr. Hira Lal Sibal, Sr. Advocate, that the suit filed by the plaintiff is an abuse of the process of the Court. Plaintiff Surjo Devi, her husband Bir Singh, her son Rajinder Singh and her daughter Vidyawati have colluded together to commit a fraud on the defendant, therefore, the appeal filed by the plaintiff is liable to be dismissed with heavy costs.

Learned counsel for the defendant Mr. Hira Lal Sibal, has further argued that the finding of the Additional District Judge, was a finding of fact and the High Court cannot interfere with a finding of fact in second appeal in support of his argument, he as relied upon Karbalai Begum v. Mohd. Sayed, AIR 1981 S.C. 77; Dudh Nath Pandey (dead by L.Rs v. Suresh Chandra Bhattasali (dead by L.Rs), AIR 1986 S.C. 1509 and Sri Sinha Ramanujar Jeer alias Sri Vanamamalai Ramanja Jeer Swamisal v. Sri Rionga Ramanuja Jeer alias Emberummanar feer, AIR 1961 SC 1720.

After hearing the learned counsel for the parties, I am of the view, that the lease deed dated 6th November, 1974 Ex. P4 executed in favour of the plaintiff was never intended to be acted upon or acted upon and it was not a genuine document. I find force in the argument advanced by Mr. Hira Lal Sibal, Senior Advocate, that the finding of the first appellate Court on appraisal of evidence, after taking into consideration the entire circumstances of the case, was a finding of fact and the same cannot be set aside by this Court in exercise of power under section 100 of Civil Procedure Code. I further hold that this litigation, started by the plaintiff and her family members, is dishonest litigation and by filing the present suit, plaintiff and her family members have abused the process of the Court.

For the foregoing reasons, the appeal is dismissed with costs. Costs are assessed at Rs. 5000/.