Kailash Nath and Others vs Satish Chandra and Others

Arun Tandon, J.—Original Suit No. 368 of 1999 was filed by Satish Chandra Sharma against the Defendant-Appellant with the following reliefs:

(a) for permanent injunction restraining the Defendant from interfering with the possession of the Plaintiff over the disputed property; and

(b) for declaring the sale deed dated 16.10.1999 as null and void. The trial court framed six issues including the issue as to whether the Plaintiff was the owner of the disputed property and the suit being barred by Section 38 and 41 of the Specific Relief Act or not. So far as the issue with regard to the title of the Plaintiff over the property in question is concerned, it was held that the Plaintiff had a valid title over the property in question. It was held that Malti Devi was the owner of the property earlier, the Original Suit No. 129 of 1989 filed by the Plaintiff against her was decreed. In pursuance whereof a sale deed was executed by Malti Devi in favour of Plaintiff. Against the judgment and decree passed in Original Suit No. 129 of 1989 first appeal and second appeals were filed by Malti Devi, which were ultimately dismissed. However, the trial court held that although the title of the Plaintiff over the property was established but since he was not in physical possession of the property, issue No. 1 was party being decided in favour of the Plaintiff and partly in favour of the Defendant. So far as the bar created by Section 38 and 41 of the Specific Relief Act is concerned, the trial court held that the suit was barred by Section 34, 38 and 41 of the Specific Relief Act. The suit was accordingly dismissed.

Not being satisfied, the Plaintiff filed Civil Appeal No. 93 of 2008. The appellate court recorded that the sale deed executed by Smt. Malti Devi dated 12th June, 1986 in favour of Plaintiff was registered on 28.01.1994 after the decree was passed by the Civil Court. She illegally executed a sale deed of the same property on 16.10.1999 in favour of the Defendant. Accordingly, plaint was amended and the relief for declaring the said sale deed as null and void was prayed for. The appellate court noticed that despite there being a relief for declaring the sale deed dated 16.10.1999 as null and void, the trial court did not frame any issue nor examined the relief prayed for in that regard. The trial court noticed the written statement filed by the Defendant (subsequent purchaser) paper No. 42-A and recorded that it was their specific case that on the execution of the sale deed by the earlier owner Smt. Malti Devi on 16.10.1999, the Defendant had entered into the possession of the property in question and they were in exclusive possession thereof. Therefore, the suit was barred by Section 36/41 of the Specific Relief Act.

The appellate court has held that the stand taken in the written statement was specifically that the possession of the property to the exclusion of the others by the Defendant was from the date exterior to the date of institution of the suit. It was held that the sale deed executed by Smt. Malti Devi in the year 1999 was an outcome of fraud to defeat the lawful judgment and decree of the court passed in Original Suit No. 129 of 1989, the judgment and decree whereof was affirmed up to the High Court.

The appellate court further held that the rent receipts, which were produced by the Defendant for alleging that he is the tenant of the premises, were for the period 1999 to June, 2004 which had the signature of Kailash Nath as the landlord. Kailash Nath expired on 28th June, 2002 and therefore no rent receipt could have been issued by said Kailash Nath for any period subsequent to the date of death. The rent receipts produced by the Defendant were found to be fabricated documents and on the basis of such fabricated documents no benefit could be granted.

The possession, which has been claimed by Kailash Nath in the year 1999 on the basis of the sale deed dated 16.10.1999 during the pendency of the suit, could, therefore, not confer any right in Kailash Nath to obstruct the injunction, which has been prayed for in the suit restraining him from interfering in the possession of the Plaintiff in whose favour the sale deed was registered under the judgment and decree of the court prior to the date the possession being delivered on the basis of the subsequent sale deed executed in favour of Kailash Nath by same Malti Devi.

Having examined the judgment of the courts below, I am of the considered opinion that no substantial question of law arises in the present second appeal. The appeal is, therefore, dismissed under Order XLI Rule 11 Code of Civil Procedure