SHASHI KANTA Vs. SADHANA MIDHA

JUDGEMENT

(1.) Two cases involve identical facts and question of law. Therefore, these were heard together and are being disposed of by this common judegment. For the sake of convenience, facts of Suit no.937/2000 are stated. The plaintiff claims herself to be the bonafide purchaser of built up property bearing no. 27/20 in Khasra no.3630/3096/637 (min) situated at Village Chandawali alias Shahdara in the abadi of Gali no.9, Vishwas Nagar, Shahdara, Delhi-110032 ad-measuring 100 sq.yds (hereinafter referred to as the Suit property, for short). The Suit is filed by her for declaration end perpetual injunction. She is seeking declaration to the offset that she is the lawful owner of the aforesaid property and that the defendants particularly defendants 1 and 2 have no right, title or interest of any kind whatsoever with respect to these property. Consequentially perpetual injunction is sought restraining the defendants 1 and 2 from interfering with the peaceful and physical possession of the plaintiff. The factual background which forced the plaintiff to file Suit of this nature ie as follows.

(2.) One Shri Roshan Lal Chaudhary was the original owner of the Suit property in question, which was a plot of land admeasuring 200 sq.yds. He had one son-Shri Bhupinder Kumar Chaudhary. Shri Roshan Lal Chaudhary died on 1/9/1968, The defendants 1 and 2 are the daughters of Shri Bhupinder Kumar Chaudhary. Shri Bhupinder Kumar Chaudhary executed a Power of Attorney in respect of this plot in favour of Smt. Santosh Mehta to deal with this plot in any manner she might like. Smt.Santosh Mehta, executed a General Power of attorney to Shri Tilak Raj Aggarwal (the defendant no.3 herein) on 2/4/1973. In fact by executing such General Power of Attorney the property was sought to be transferred. However, the defendants 1 and 2 challenged the execution of General Power of Attorney by Shri Bhupinder Kumar Chaudhary in favour of the aforesaid persons. In the said Suit which was filed through their mother, Smt. Champa Chaudhary, in addition to Shri Bhupinder Kumar Chaudhary, Smt. Santosh Mehta and Shri Tilak Raj Aggarwal were also impleaded as defendants 7 and 8 respectively. The Suit was later on amended to incorporate the relief of possession as well. Smt. Santosh Mehta filed written statement. She alleged that while executing the Power of Attorney in her favour, Shri Bhupinder Kumar Chaudhary did not disclose any such Will dated 29/8/1968 and he claimed title to the said plot being successor in interest to late Shri R.L.Chaudhary. She also stated that she was pressurised to execute the General Power of Attorney in favour of Shri Tilak Raj Aggarwal as he had come into illegal possession of the said plot. Although Shri Tilak Raj Aggarwal appeared through advocate but he did not file any written statement. After taking few dates for this purpose, he started absenting himself and was proceeded ex-parte. It may be mentioned that Suit was filed in the High Court. After the enhancement of the pecuniary jurisdiction of the District Court it was transferred to District Court. Notice were again directed to be issued to all the defendants. Shri Tilak Raj Aggarwal received the summons but did not appear. Father of the defendants 1 and 2 (petitioners in the said Suit) also remained absent. Ex-parte evidence was led and ultimately judgment and decree dated 14/8/1986 was passed by the Court of Shri P.R.Thakur, Additional District Judge, Delhi to the effect that petitioners are the owners in possession of the said suit plot and the proportionate land thereunder, as also joint owners of the portion and further declaring that any transfer or sale made in favour of defendant no.7 (Smt. Santosh Mehta) and/or defendant no.8 (Shri Tilak Raj Aggarwal) was illegal, unenforceable and not binding on the petitioners. Decree of possession was also passed in favour of the defendants 1 and 2 herein and against the defendant no.7 and 8 in the said Suit. On the basis of this decree, execution petitions were filed and warrants of possession dated 23/9/1966 was issued. When the bailiff of the Court went to execute the warrants of possession, Shri Tilak Raj Aggarwal and his wife resisted the execution and at this stage Shri Tilak Raj Aggarwal - defendant no.7 in the Suit moved application under Order IX Rule 13 of the Code of Civil Procedure along with application under Section 8 of the Limitation Act for setting aside the ex-parte decree dated 14/8/1986. During the pendency of this application on 8/10/1986 Shri Tilak Raj Aggarwal gave undertaking to the executing Court whereby he undertook to handover possession of the Suit property to the Decree Holders in the event his application under Order IX Rule 13 of the Code of Civil Procedure is dismissed. We also undertook not to part with the possession of the property in any manner without prior permission of the Court. We also undertook that any breach of the undertaking would tantamount to contempt of the Court. We, however, reserved the liberty to exercise his right pertaining to get decree set aside including all rights of appeal, revision, etc. By order dated 4/6/1997 application of Shri Tilak Raj Aggarwal filed under Order IX Rule 13 of the Code of Civil Procedure was dismissed. It may be pertinent to mention that this application was decided after evidence was led by both the parties. Shri Tilak Raj Aggarwal preferred appeal (being FAO No.210/97) against the aforesaid Order which was also dismissed by Order dated 6/8/1997.

(3.) Mr. Tilak Raj Aggaral, filed application dated 22/4/1996 seeking direction for supplying him copy of the amended plaint and all other documents filed by the petitioners along with the plaint. We also filed objections to the decree by filing application dated 17/2/1997 under Section 47 read with Section 151 of the Code of Civil Procedure on the ground that decree was null, void and inexecutable. These applications were dismissed by Order dated 8/3/1999.