MRS. ROMA SINGH & ORS. vs RAJESH CHAUDHARY
$~P-1 to 3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:-22nd December, 2023
+ RFA 282/2023
NARENDRA KUMAR ….. Appellant
versus
RAJESH CHAUDHARY & ANR. ….. Respondents
+ RFA 283/2023 & CM APPL. 62717/2023
NARENDER KUMAR & ORS. ….. Appellants
versus
RAJESH CHAUDHARY ….. Respondent
+ RFA 284/2023
MRS. ROMA SINGH & ORS. ….. Appellants
versus
RAJESH CHAUDHARY ….. Respondent
Appearance: – Mr. Ashok Kumar Singh, Senior Advocate with Mr. Rajesh Kumar, Ms. Saloni Singh, Ms. Meghna Bhutolia, Mr. Anshuj Dhingra, Mr. Aman Dixit and Mr. Narendra Kumar & Mr. Rajat Joshi, Advocates for Appellants.
Mr. Abhimanyu Bhandari, Mr. B.S. Nagar, Mr. Shobhit Jain and Mr. Harshit Khanduja, Advocates for R-1.
Mr. Tanmaya Mehta, Ms. Nattasha Garg, Mr. Thakur Ankti Singh & Mr. Srikant Singh, Advocates for R-2 & 3.
CORAM:
HONBLE MR. JUSTICE PRATEEK JALAN
J U D G M E N T
PRATEEK JALAN, J
CM APPLs. 16947/2023 & 44660/2023 in RFA 282/2023 (stay)
CM APPLs. 16949/2023 & 44861/2023 in RFA 283/2023 (stay)
CM APPLs. 16951/2023 & 44661/2023 in RFA 284/2023 (stay)
A. Background
1. The captioned appeals are directed against a common judgment and decree dated 05.12.2022 passed by the learned Trial Court in three civil suits concerning the same property [C-125, Greater Kailash-I, New Delhi].
2. Two of the suits [Suit No. 7262/2016 and Suit No. 10272/2016] were filed by Mr. Rajesh Chaudhary [Rajesh], who is arrayed as respondent No. 1 in these appeals. In the first suit, the defendants were Mrs. Roma Singh [Roma], wife of late Col. Ranbir Singh [Ranbir], and her two sons namely, Mr. Gaurav Singh and Mr. Sorabh Singh. Rajesh sought a declaration that a purported agreement to sell and power of attorney executed by him in favour of Ranbir were forged and fabricated and a declaration that he is the rightful owner of the suit property. In the second suit, Mr. Narender Kumar [Narender] was a defendant in addition to Roma and her two sons. Rajesh sought a declaration that a sale deed dated 19.11.2004 executed by Roma and her sons in favour of Narender was null and void.
3. The third suit [Suit No. 8708/2016] was filed by Narender against Rajesh for declaration that Narender is the exclusive and absolute owner of the suit property and for a decree of possession and other consequential reliefs.
4. By the impugned judgment, the two suits filed by Rajesh have been decreed, and the suit filed by Narender has been dismissed.
5. Narender, Roma and her sons are in appeal, although they are not all arrayed as appellants in each of the appeal. During the pendency of the appeals, the appellants filed applications for impleadment of two respondents who were not party to the original proceedings viz. Mr. Anup Garg and Mr. Jeevesh Sabharwal [collectively, the purchasers] who were stated to have purchased the suit property from Rajesh on 22.03.2023, after the passing of the impugned judgment. They were impleaded by order dated 12.09.2023, read with order dated 05.10.2023. The appellants have now filed the captioned applications under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 [CPC] for an injunction against the purchasers from construction, transfer, alienation or creation of any third party interest in the suit property. The purchasers have filed replies to the applications.
B. Facts
6. For the purposes of present applications, the following facts are relevant, with regard to which there is no substantial dispute between the parties:
a. Roma and her sons claim an interest in the property on the basis of an agreement to sell, power of attorney, will, receipt and other documents stated to have been executed by Rajesh in favour of Ranbir on 18.11.1982. It is undisputed that none of these documents were registered.
b. These documents were supported by a confirmation executed by Mrs. Dropati Devi (Rajeshs mother) dated 20.11.1982. This was necessitated because the original owners of the property were Rajesh and his brother Mr. S.K. Chaudhary, who died on 04.06.1968. He had never married and had no children. Mrs. Dropati Devi was thus his legal heir. She had also executed a deed of relinquishment in favour of Rajesh on 25.10.1978.
c. After Ranbirs death on 06.01.1987, Roma applied for letters of administration in respect of the suit property, which was granted by the learned District Court on 13.11.1990. Rajesh applied for setting aside of this order on 08.03.1994, which was dismissed on 03.08.2002.
d. Roma and her sons filed a suit against Rajesh in the year 1992 for injunction, possession and damages in respect of the suit property. Interim relief was granted by an order of this Court dated 10.04.1992, but the suit was ultimately withdrawn on 09.07.2004.1
e. In the meanwhile, Roma claims that the suit property was mutated in her name in the year 1995.
f. Rajesh filed a suit in the year 1998 against Roma for injunction. This suit was dismissed for non-prosecution on 06.09.2002.
g. Roma sold the property to Narender by a registered sale deed dated 19.11.2004.
h. In the year 2003, Rajesh filed the first of the three suits disposed of by the impugned judgment [later numbered as Suit no. 7262/2016].
i. He filed the second suit [later numbered as Suit No. 10272/2016] in the year 2005, originally in this Court.
j. The third suit was filed by Narender [later numbered as Suit No. 8708/2016] in the year 2007.
k. All three suits were consolidated by an order of this Court dated 13.11.2007 and parties were directed to maintain status quo with regard to the suit property until disposal of the suits. This order held the field until the impugned judgment dated 05.12.2022.
C. Submissions
7. I have heard Mr. Ashok Kumar Singh, learned Senior Counsel for the appellants, Mr. Abhimanyu Bhandari, learned counsel for Rajesh, and Mr. Tanmaya Mehta, learned counsel for the purchasers.
8. In support of these applications, Mr. Singh submitted that the suit property was preserved by the order dated 13.11.2007 during the pendency of the suits. He stated that the purchasers have purportedly purchased the suit property from Rajesh after filing of these appeals on 10.03.2023, and after service upon learned counsel for Rajesh on 11.03.2023, pursuant to caveat filed on his behalf on 14.12.2022. In these circumstances, he submitted that Rajesh was well aware of the pendency of these appeals, although the appeals had not yet been listed before the Court. Mr. Singh argued that the transactions between Rajesh and the purchasers were clearly intended to overreach the Court. He submitted that any construction upon the suit property by the purchasers, or creation of third party interests, would lead to irreparable loss and injury to the appellants, in the event they were to succeed in the appeals.
9. Mr. Singh submitted that the order of status quo was passed during the pendency of the suit on a prima facie case being shown by the appellant. It remained unchallenged by any of the defendants. He relied upon the judgment of the Supreme Court in Maharwal Khewaji Trust (Regd.) vs. Baldev Dass2 to submit that status quo should generally be maintained in the subject matter of a suit, unless the defendants are able to show that they would be irreparably prejudiced thereby. According to Mr. Singh, the same considerations would apply even during the pendency of an appeal, after dismissal of the appellants suits by the learned Trial Court. He also referred to the judgment of the Bombay High Court in Sunil vs. Jawaharlal3 in support of this proposition.
10. Mr. Singh argued that the order of injunction sought would cause no prejudice, as the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 [TPA], in any event, requires the respondent to seek the permission of Court before alienating the property during the pendency of the appeals. He argued that, despite the protection of Section 52, the potential intervention of third-party rights would, at the very least, expose the appellants to multifarious litigation by any subsequent alienees of the property. Mr. Singh cited the judgments of the Supreme Court in Sarvinder Singh vs. Dalip Singh4 and Jagan Singh vs. Dhanwanti5 for this purpose.
11. Mr. Bhandari and Mr. Mehta opposed the applications on the ground that the appellants have failed to make out a prima facie case for grant of the injunctions sought. They submitted that Narenders purported title was derived entirely from Roma, whose interest was based only upon an unregistered agreement to sell and other unregistered documents claimed to have been executed by Rajesh in favour of her late husband. They submitted that such unregistered documents could never lay the foundation of a claim upon the suit property, as recently laid down by Supreme Court in Shakeel Ahmed vs. Syed Akhlaq Hussain6. Additionally, even these documents were not produced before the learned Trial Court in original, nor was secondary evidence led of their contents. Learned counsel urged the Court not to continue an injunction which had placed a fetter upon Rajeshs property rights for a period of fifteen years, based upon a claim which the learned Trial Court found to be wholly untenable.
12. Mr. Bhandari and Mr. Mehta also submitted that the appellants were not entitled in equity to the injunction sought, as the transaction between Roma and Narender also took place on 19.11.2004, during the pendency of Rajeshs suit against Roma and her sons, which was filed on 23.05.2003. They submitted that Roma and Narender entered into this transaction during the pendency of proceedings filed by Rajesh and soon after the withdrawal of Romas suit against Rajesh.
13. With regard to Mr. Singhs allegation of overreaching the Court, Mr. Mehta drew my attention to Order XLI Rule 5 of the CPC and an order of the Supreme Court in Sanjiv Kumar Singh vs. The State of Bihar & Ors.7 which clearly holds that mere filing of an appeal does not operate as an order of stay.
14. Learned counsel also disputed Mr. Singhs interpretation of Section 52 of the TPA, and submitted that there is no restriction upon transactions pendente lite in respect of immovable property in the absence of an injunction. They submitted that Section 52 affords adequate protection, inasmuch as that no party to the suit would be prejudiced by the alienation during the pendency of the suit.
D. Analysis
15. I am unable to accept Mr. Singhs first contention that an injunction should be granted at the appellate stage on the strength of the order granted during the pendency of the suit. The fact that the Trial Court has adjudicated the matter finally, and found the appellants disentitled to the relief claimed, is a material circumstance which the Court can keep in mind while considering the interim arrangements which would appropriately balance the rights and interests of all the parties to the appeal. Mr. Singh submitted two judgments with regard to grant of an injunction in cases involving immovable property. However, both the judgment of the Supreme Court in Maharwal Khewaji Trust8, and of the Bombay High Court in Sunil9 concern interlocutory orders during the pendency of the original suit. Mr. Singh submitted that the same principles apply, as an appeal is a continuation of the original proceedings. Be that as it may, it does not, in my view, mean that the Court must ignore the significant fact that one level of adjudication has culminated in a decree against the appellant. Whether or not the injunction should be granted during the pendency of the appeal, requires an assessment of the situation in each case.
16. Mr. Singh next relied on the doctrine of lis pendens under Section 52 of the TPA to submit that no transaction can take place in respect of the property without the leave of the Court. Section 52 reads as follows:
Section 52: Transfer of property pending suit relating thereto.
During the pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government, of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation.- For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order, and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
17. The interpretation placed upon the provision by Mr. Singh is, in my view, untenable and based on an incorrect reading of the judgment of the Supreme Court in Sarvinder Singh10, upon which he relied. Mr. Singh placed reliance on paragraph 6 of Sarivinder Singh11 in which the Court explained Section 52 thus:
It would, therefore, be clear that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the court. Admittedly, the authority or order of the court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit.12
The judgment reiterates the statutory principle that any alienation of the suit property pendente lite would be subject to the rights of other parties to the proceedings. It does not follow that no transaction is permissible at all. Indeed, if that was the case, there would be no need for an order of injunction of the sort Mr. Singh seeks in these applications. This position is clear from Thomson Press (India) Ltd. vs. Nanak Builders & Investors (P) Ltd.13, cited by Mr. Mehta. The Court has clarified in paragraph 26 of the said judgment as follows:
It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation.14
18. The second judgment on Section 52 cited by Mr. Singh, Jagan Singh15 only holds that the doctrine of lis pendens applies during the pendency of the appeal. This proposition is not in dispute.
19. Mr. Singh next contended that the transaction between Rajesh and the purchasers on 22.03.2023, after filing of the appeals and service thereof upon Rajesh, was mala fide and an attempt to overreach the Court. It is not in dispute that no interim order had been passed by the Court prior to 22.03.2023 indeed, the appeals were first listed before the Court only on 10.04.2023. Prima facie, therefore, there was no violation of any order of the Court which might otherwise entitle the appellants to interim relief. Mr. Mehta cited a recent order of the Supreme Court16 in which Order XLI Rule 5 of the CPC came up for interpretation. The said provision reads as follows:
ORDER XLI
APPEALS FROM ORIGINAL DECREES
XXXX XXXX XXXX XXXX
5. Stay by Appellate Court.(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.17
The Supreme Court held that the mere filing of an appeal would not operate as a stay, in the absence of an appeal being listed and an interim order being passed.
20. In context of these principles, I am of the view that the appellants have not made out a case for grant of an injunction in the terms sought. The learned Trial Court has come to a finding that the appellants herein relied only upon unregistered documents in the nature of an agreement to sell, power of attorney, will, receipt, etc. There was no conveyance executed by Rajesh in favour of Ranbir and the documents also were not registered. This factual position is uncontested. The recent judgment of the Supreme Court in Shakeel Ahmed18 clearly holds that title in immovable properties cannot be transferred on such a basis. In fact, no right, title and interest vests in immovable property without a registered document. Prima facie, I do not find any error in the view taken by the learned Trial Court in this regard. Additionally, it is significant that Roma has withdrawn a suit filed by her against Rajesh for injunction, possession and other reliefs prior to entering into the transaction with Narender.
21. In these circumstances, I am of the view that the doctrine of lis pendens protects the appellants. Additionally, the purchasers are directed to ensure that any third parties inducted into the property by way of title, possession or any other interest, are informed of the pendency of these appeals, and the orders passed therein. The purchasers and any such transferees will not claim any equities on account of any acts undertaken including expenditure in construction or purchase of interest in the suit property during the pendency of the appeals. The purchasers will file affidavits before this Court to this effect within one month of entering into any transaction in respect of the suit property, disclosing therein the identity of the third party alienee, and the nature of the interest transferred. This order will also apply to any third party who acquire the interest in the suit property hereafter. I am of the view that these directions adequately protect the appellants and also diminish the likelihood of multiplicity of proceedings as anticipated by Mr. Singh.
22. It is made clear that this judgment is concerned only with the interlocutory arrangements which are required to subsist during the pendency of these appeals. The observations made herein are therefore prima facie findings, and are not intended to prejudice final adjudication of the appeals.
23. The applications are disposed of in these terms.
RFA 282/2023, RFA 283/2023 & RFA 284/2023
List on 02.05.2024.
PRATEEK JALAN, J
DECEMBER 22, 2023
pv/ss/udit/
1Although the fact that this suit was filed by Roma and interim orders were granted in her favour are mentioned in a list of dates handed over by Mr. Singh, curiously, the withdrawal of the suit does not find mentioned therein. However, this fact is mentioned in the impugned judgment and was not disputed in the course of arguments.
2 (2004) 8 SCC 488.
3 2011 SCC OnLine Bom 1158.
4 (1996) 5 SCC 539.
5 (2012) 2 SCC 628.
6 2023 SCC OnLine SC 1526.
7 Order dated 24.01.2023 in SLP(C) 19038/2022.
8 Supra (note 2).
9 Supra (note 3).
10 Supra (note 4).
11 Ibid.
12 Emphasis supplied.
13 (2013) 5 SCC 397.
14 Emphasis supplied.
15 Supra (note 5).
16 Supra (note 7).
17 Emphasis supplied.
18 Supra (note 6).
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RFA 282/2023 and connected matters Page 1 of 13