I.R. CONSTRUCTIONS PVT. LTD Vs. YASHPAL KHULLAR

JUDGEMENT

(1.) The instant second appeal has been filed by two defendants of the Original Suit No.482 of 2002 assailing the judgment and decree dtd. 17/1/2017 whereby learned Additional District Judge, First, Gautam Budh Nagar, has allowed Civil Appeal No.19 of 2013 filed by the plaintiff-respondent no.1, set aside the judgment of the trial court dtd. 23/3/2013 and decreed the suit granting various reliefs to the plaintiff-respondent no.1.

(2.) As per plaint case, a residential plot No.122, Block-E, Measuring 180 sq. mtrs situated at Sector 41, Noida had been allotted by defendant no.4, i.e. New Okhla Industrial Development Authority (for short 'NOIDA') in favour of one Shadi Lal Mehra (for short 'SLM') who executed a registered agreement for sale dtd. 24/11/1995 in favour of the plaintiff. According to the plaintiff, SLM had delivered possession of plot to him. The plaintiff also pleaded about a registered Will dtd. 24/11/1995 and certain other documents, like power of attorney etc, executed by SLM in his favour. SLM died on 11/2/1996, consequent upon which, the plaintiff became owner of the plot to the divestment of defendants no.2 and 3, who are respectively widow and son of SLM. The plaintiff could not inform NOIDA about the rights acquired by him at the strength of the Will and other documents but, on 12/12/2002, when he found the defendant no.1 (I.R. Constructions Pvt Ltd) (appellant no.1 herein) raising constructions over the plot, on being asked from the appellant no.1, he was informed about execution of certain documents by the defendants no.2 and 3 in favour of defendant no.5-Devendra Kumar (appellant no.2 herein) and also a registered lease deed dtd. 28/5/2001 for 90 years by NOIDA. The plaintiff stated all the documents executed inter se defendants as null and void by relying upon the agreement for sale and Will dtd. 24/11/1995 in his favour by SLM and, consequently, prayed for a decree for specific performance of the agreement directing the defendants no.2, 3 and 5 to execute sale deed in his favour, grant of which if not possible, a decree restraining the defendant no.1 from raising constructions and demolition of constructions raised so far; declaring all documents executed amongst the defendants as null and void; declaring the plaintiff as owner of the disputed plot at the strength of the Will dtd. 24/11/1995 with a further decree that possession of the plot be directed to be delivered to the plaintiff.

(3.) The defendants no.1 and 5 (appellants herein) pleaded in written statement that a Will dtd. 10/1/1996 was executed by SLM in favour of defendant no.5; the said defendant applied before NOIDA for entering his name in the records and for getting a lease deed executed; NOIDA executed a registered lease deed on 28/5/2001 in favour of defendant no.5 and also delivered its possession to him, whereafter the defendant no.5 executed documents in favour of defendant no.1 and also handed over its possession to the said defendant. It was further pleaded that the defendant no.1 raised constructions over the plot and had also obtained a completion certificate from NOIDA prior to institution of the suit. They disputed the sustainability of the Will dtd. 24/11/1995 by referring to proceedings of a probate case filed by the plaintiff which was dismissed for want of prosecution on 30/8/2003 by the District Judge, Ghaziabad. Certain other documents executed amongst the defendants were also pleaded with a further stand that the suit was filed at a very belated stage after the title stood vested in the defendants. Wife of late SLM and his son were defendants no.2 and 3 against whom suit had proceeded ex-parte, as would be apparent from the appellate court's judgment and the main contest was made by the present appellants, who were respectively, defendants no.1 and 5 in the suit.