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Shri N.S. Hoon Vs. Smt. Nimmi Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCS (OS) 1616/2006 &I.A. Nos.9308/2006 & 14127/2010
Judge
ActsCode Of Criminal Procedure (CRPC) - Section 145
AppellantShri N.S. Hoon
RespondentSmt. Nimmi Singh and ors.
Appellant AdvocateMr. N.S. Hoon, Adv.
Respondent AdvocateMr. Anish Dayal; Mr. Siddharth Vaid; Mr. Abhimanyu Garg, Advs.
Cases ReferredRs. v. Jagannath (dead
Excerpt:
[mr. justice b.sreenivase gowda, j.] this mfa is filed u/s 173(1) of mv act against the judgment and award dated: 01.04.2009 passed in mvc no. 5338/2008 on the file of xvi additional judge, member, mact, bangalore, awarding a compensation of rs.4,68,000/- with interest @ 6% p.a. from the date of petition till realisation......in respect of the property, being a-9, green park, new delhi (hereafter referred to as "the suit property"), or in the alternative, decree for damages and compensation, quantified at `12.2 crores, with 18% interest from the date of filing of suit, till realization.2. according to the suit averments, the plaintiff was in continuous and uninterrupted possession of the property from 09.05.1984 to 28.03.2001. he submits that on 28.02.2000, an attempt was made by the first defendant, her husband the second defendant, the third defendant (hereafter referred to as "sh. s.k. kochar") and the fourth defendant, to forcibly oust him. the suit property was sealed under orders of the sub-divisional magistrate (sdm), hauz khas till 28.03.2001. it is alleged that the defendants have colluded and.....
Judgment:
1. Whether the Reporters of local papers Yes. may be allowed to see the judgment?

2. To be referred to Reporter or not? Yes.

3. Whether the judgment should be Yes. reported in the Digest?

1. The plaintiff in this case seeks a decree of possession against the defendants in respect of the property, being A-9, Green Park, New Delhi (hereafter referred to as "the suit property"), or in the alternative, decree for damages and compensation, quantified at `12.2 crores, with 18% interest from the date of filing of suit, till realization.

2. According to the suit averments, the plaintiff was in continuous and uninterrupted possession of the property from 09.05.1984 to 28.03.2001. He submits that on 28.02.2000, an attempt was made by the first defendant, her husband the second Defendant, the third defendant (hereafter referred to as "Sh. S.K. Kochar") and the fourth defendant, to forcibly oust him. The suit property was sealed under orders of the Sub-Divisional Magistrate (SDM), Hauz Khas till 28.03.2001. It is alleged that the defendants have colluded and connived and that the fifth and sixth defendants are impleaded as proper parties. The plaintiff alleges that the first four defendants obtained, on 23.02.2001, order from the SDM, directing possession of the property to be given to the first defendant. It is alleged that the fraud was played by concealing plaintiff's possession from 09.05.1984, as well as execution of a registered Power of Attorney, Receipt etc. in 1979 by the first defendant in favor of the fifth defendant, and further concealing the execution of lease in 1980 by the fifth defendant, in favor of the sixth defendant.

3. It is alleged that the payment of `1,00,000/- by the fifth defendant and the sixth defendant, to the first defendant was also concealed. The plaintiff submits that most crucially, the order of the Division Bench of this Court in RFA(OS) 26/1997 dated 25.01.2001 was also concealed from the record by the first three defendants. The plaintiff alleges that the first to fourth defendants have connived with each other, and in 2004, surreptitiously entered into an agreement for transferring the suit property, for `3.2 crores, against its real value of `12 crores, and in order to give it authenticity, have relied upon a Memorandum of Understanding (MoU), which was placed on record of the Division Bench as a compromise in C.M. No. 10650/2004 in an appeal, RFA(OS) 26/1997, without the plaintiff's consent. It is submitted that criminal proceedings are pending before the competent court, i.e. the Metropolitan Magistrate, in this regard.

4. The plaintiff submits that the fraudulent and illegal attempts of the first four defendants to dispossess him had begun in February 2000 when they attempted to physically dispossess him. It is urged that the plaintiff became aware of the fraud only when a Special Leave Petition (SLP) was dismissed against the Criminal Writ Petition, preferred against the order dated 22.03.2001 of the SDM, and for initiating civil litigation and after the file in RFA 28/1997 was inspected.

5. It is urged that the first defendant is the erstwhile owner of the suit property; and the third defendant had alleged about an agreement to sell dated 11.01.1978 entered into with her by him, through her attorney, i.e. Dr. Achhar Singh for total consideration of `3,00,000/-, for which he had allegedly paid `1,00,000/- as Earnest Money. S.K. Kochar had filed CS (OS) 220/1981 (hereafter referred to as, "the 1981 suit") before this Court, for specific performance of the alleged agreement dated 11.01.1978 against the first defendant and others. That suit had also impleaded the said Dr. Achhar Singh. It is submitted that the said first defendant and Dr. Achhar Singh denied the agreement to sell. The plaintiff urges that the first three defendant then colluded with the fourth defendant to deprive him (the plaintiff), of his lawful possession in respect of the suit property.

6. It is submitted that the plaintiff, by furnishing her address as J-18, Hauz Khas had entered into an agreement to sell and executed a registered Power of Attorney, as well as receipt on 27.12.1979 in favor of the fifth defendant in respect of the suit property. Physical possession of the suit property was given to the fifth defendant on the very same day, i.e. 27.12.1979. Consequently, the first defendant ceased to have possession of the property from then on. It is stated that the fifth defendant, as Attorney of the first defendant, on 22.02.1980 leased the suit property to the sixth defendant but later built a surrounding wall at the cost of `1,00,000/-. The plaintiff also relies on a registered lease deed for an on behalf of the first defendant, executed on 06.06.1980 by the fifth defendant with the sixth defendant. The suit further states that the Special Power of Attorney of the first defendant, favoring the fifth defendant, was registered with the Sub-Registrar, Delhi. It conferred wide and ample powers on the Attorney, authorizing her to apply to the competent authority for permission to raise construction, to submit building plans to the municipal authorities; let or lease or collect or receive rents etc. The Power of Attorney is also allegedly irrevocable. The plaintiff, thus, relies upon a receipt dated 06.11.1980 by the fifth defendant, regarding payment of `3,00,000/-, on account of Earnest Money, towards purchase of the suit property. Thereafter, it is submitted that on 09.05.1984, the fifth defendant executed a Special Power of Attorney and agreement and transferred all lease in respect of the suit property favoring the plaintiff. These documents transferred all accrued rights, interests and claims from the sixth defendant to the plaintiff, as Chairman of M/s. Hackmans Hotels Services, for valuable consideration of `2,50,000/-. It is stated that in terms of the recital of the agreement, the fifth and sixth defendants purchased the property from the first defendant on 29.12.1979 for `3,00,000/-. The plaintiff also relies on the said document of 22.12.1979 and the subsequent document of 06.11.1980. It is also alleged that the plaintiff was handed vacant and peaceful possession of the suit property on the said date, in 1984; it enabled him to step into the shoes of the sixth defendant, and enjoy possession on that basis.

7. The suit alleges that the 1981 suit, against the first two defendants, for specific performance of the Agreement to sell dated 11.01.1978, was decreed in April 1997. The first defendant had denied executing the said agreement to sell of 11.01.1978. It is emphasized that in the said judgment, the Court rendered a finding that the first defendant had taken a false stand. The first defendant appealed against that decision, being RFA (OS) 28/1997; at the time of its admission, a statement was made on her behalf that the suit property was lying vacant with boundary wall and gate and under her lock and key. It is urged that the undisturbed possession was, however, not disclosed. It is further urged that the third defendant, i.e. the plaintiff in the 1981 suit had stated, on 15.04.2000, that he was in occupation of the suit property, in CM 331/2000, and sought action by moving an application alleging contempt of Court. The same was, however, disposed of. It is thus urged that the third defendant was aware about the appointment of the fifth defendant by the first defendant as Power of Attorney holder, in 1979, The execution of a registered lease deed dated 06.06.1980 and the further circumstance that on 09.05.1984, the sixth defendant had assigned and transferred all rights in favor of the plaintiff. The plaintiff mentions about a police report/kalandara dated 26.06.2000, filed by the first defendant in the said application moved by the third defendant. The application was dismissed on 25.01.2001, thus rejecting the request to remove or dispossess the plaintiff.

8. The plaintiff relies upon a statement recorded before the Magistrate, on 12.10.2001, of the witness from the office of the Sub-Registrar to prove the General Power of Attorney of the first defendant in favor of the fifth defendant dated 31.12.1979. It is submitted that the said witness also proved the lease deed in favor of the sixth defendant as also the Special Power of Attorney. These statements, it is urged, conclusively establish the falsehood of the first defendant in denying the plaintiff's lawful title and possession to the suit property. In these circumstances, says the plaintiff, he lodged a complaint on 29.02.2000 with the Police Station, Hauz Khas against the first three defendants, in response to which he was asked to produce original documents. The suit further alleges that the proceedings were pending under Section 145 Criminal Procedure Code on account of a report of the concerned Sub-Inspector dated 26.06.2000 before the SDM Hauz Khas on 14.11.2001, directed the property to be sealed. The plaintiff also refers to a criminal complaint dated 05.12.2000 against the first three defendants, alleging acts of trespass punishable under criminal laws. He explains that so far as original documents are concerned, they were misplaced or lost in the process of pursuing the multifarious proceedings pending in various Courts; however Notarial copies have been prepared.

9. The suit alleges that the Notary was summoned by the magistrate and he deposed to having attested true copies after seeing the originals, after which Warrants were issued against the first three defendants, who are presently on bail. The plaintiff alleges that in furtherance to their conspiracy to thwart his rights and peaceful possession to the property, the first four defendants entered into an alleged Memorandum of Understanding (MOU) styling it to be a compromise application (C.M. No. 10650/2004) in RFA (OS) 28/1997. The said application did not disclose the other pending proceedings nor was the plaintiff apprised of that in the proceedings initiated by him. It is stated that in Para 13 of the MOU, there is a specific reference to the proceedings initiated by him, i.e. the plaintiff provisioning the contingency. The compromise sought to put a seal of approval to an alleged sale of the suit property in favor of the fourth defendant, the sole motive of which was to defeat the plaintiff's rights.

10. The plaintiff submits that being aggrieved by the order of the SDM, rejecting is claim for possession of the suit property, he preferred a criminal revision before the Sessions Court, which was dismissed on 05.09.1995; the same as challenged in W.P. (Crl) 2021/2005, which was dismissed on 30.11.2005 by this Court. It is stated that he approached the Supreme Court too but without success and urges that despite these facts, it is open for him to seek relief by way of Civil litigation.

11. On the strength of these averments, the plaintiff seeks various reliefs claimed in the suit and alleges at various stages in the pending proceedings, before this Court as well as before the SDM, the first four defendants deliberately withheld his existing lawful and settled possession with the sole motive of depriving him of accrued rights. It is also urged that the plaintiff has perfected the title in respect of the suit property by adverse possession by virtue of having been there for more than 17 years.

12. Arguing the case himself, Sh. Hoon, the plaintiff, reiterated the averments in the suit, and also relied on copies of the documents placed on the record. He submitted that not only do the documents on record, whose veracity has been tested before the Magistrate in the criminal complaint proceedings, clearly establish that he was in possession of the suit property right from 1984, but also that the first defendant is a proven liar, whose version cannot be accepted as it is untrustworthy. It is also urged that similarly, the third defendant's action in moving the Division Bench in appellate proceedings, for drawing contempt action against him (the plaintiff) clearly proved his (the third defendant's) knowledge of the prior possession of the plaintiff. Therefore, the MOU of 2004 is not only not binding on the plaintiff, who is not a party to it, but is a clear attempt at defrauding and defeating his rights. The plaintiff further relied on the stipulation agreed to in the said MOU, which talked of compensation to be provided in a particular manner, in respect of the plaintiff's claim.

13. Mr. Hoon urges that there is no need for the Court to go through the formality of a full trial, which will only prolong and delay a just decision in the case, enabling the defendants to profit from their acts of fraud and collusion. It was urged that repeatedly, the Supreme Court has ruled that fraud unravels all transactions, and no one who bases his title or position on an act of fraud would be allowed to enjoy the benefits of such enterprises. In support, he relied on the judgments reported as S. P. Chengalvaraya Naidu (dead) by LRs. v. Jagannath (dead) by LRs. & Ors, reported in (1994) 1 SCC 1 (where it was held that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. Other judgments includeRam Preeti Yadav v. UP Board of High School and Intermediate Education and Ors., reported in (2003) 8 SCC 311 (where it was held that once fraud is proved it will deprive the person of all advantages or benefits obtained thereby). It is submitted that the actions of the first, third and fourth defendants reveal clear and apparent deception, falsehood and fraud, which can be disbelieved, and the arms of the Court are long enough to cure injustice, wherever it occurs.

14. The defendants have filed their written statements and resisted the plaintiff's contentions. They deny the plaintiff's possession and the case set by him. Initially, the defendants had moved for rejection of the suit; the same were considered and rejected by the order dated 22.04.2009. Subsequently, after the pleadings were completed, the parties were directed to admit/deny the documents, through order dated 12.04.2010. This was done on 16.07.2010. By order dated 26.07.2010, the Court framed the following issues.

"XXXXXX XXXXXX XXXXXX

(i) Does the plaintiff establish that he was in continuous lawful and uninterrupted possession of the suit property from 09.05.1984 till 28.03.2001? OPP

(ii) Does the plaintiff prove that he perfected title to the suit property by adverse possession? OPP (iii) Does the plaintiff prove that he was unlawfully dispossessed from the suit property as claimed in the suit? OPP (iv) Is plaintiff entitled to a decree for possession? OPP

(v) If the above issue is answered in the negative, is the plaintiff in alternative entitled to a decree of damages and if so, to what extent? OPP (vi) Relief.

XXXXXX XXXXXX XXXXXX"

15. On 29.09.2010, this Court did not agree with the defendants' submission that the suit had been inadequately valued for the purpose of Court Fees. After giving its reasons, this Court recorded as follows:

"XXXXXX XXXXXX XXXXXX In the above circumstances, the Court does not find any reason to disagree with the earlier view taken in the order dated 22.04.2009. It is open to the defendants, however, to urge these contentions at the stage of the final hearing.

The parties request that a local commissioner may be appointed to record the oral evidence for an expeditious disposal of the suit. Sh. R.C. Yaduvanshi, ADJ (Retd) (011-23952629) is accordingly appointed as Commissioner to record the oral evidence in this case. The Commissioner's fee is fixed at Rs. 75,000/-, of which the plaintiff shall bear Rs.25,000/-, and Defendant Nos. 1 to 4 shall bear the balance. The parties are directed to contact the local commissioner and seek his directions on 06.10.2010.

List before the Court on 10.12.2010, for directions, after evidence is duly recorded.

XXXXXX XXXXXX XXXXXX"

16. Thereafter, the plaintiff moved an application, I.A. No. 14120/2010 for pre-poning the date, which was listed on various dates of hearing but was not taken-up due to his absence. Eventually, it was fixed on 10.12.2010. On that date, the plaintiff recorded his statement on oath, submitted that he did not wish to lead any oral evidence and that he would rely on whatever material existed. In these circumstances, the Court heard the submissions of the parties on 10.12.2010 and subsequently on 14.12.2010 and 16.12.2010.

17. In addition to reiterating their submissions in the written statements, to the effect that the plaintiff was never in any possession, much less settled possession, of the suit property, the defendants submit, through their counsel that the findings rendered in a previous suit, to which they were parties, regarding the truth or otherwise of a stand pertaining to the existence of an agreement to sell the suit property cannot be used by the plaintiff, who was never a party to the suit. It is also urged, besides that the plaintiff has till date not produced the original of any document relied on by him, to claim lawful possession. It is emphasized here that the plaintiff has stated that the originals were lost, and is seeking to rely on the testimony of the Notary public and the employee from the office of the Sub Registrar, given in other criminal proceedings; such witnesses have not been cross examined, nor did they face the Court in this case. In the circumstances, submit the defendants, rendering findings on the merits of the plaintiff's case, on the basis of presumed acts of fraud of the defendants, without hearing their case, or considering the depositions of witnesses to be produced on their behalf, would be violative of all canons of fairness and natural justice.

18. The above discussion would show that the plaintiff is claiming to be in lawful possession of the suit property, at least till 2001, when he was dispossessed pursuant to proceedings initiated under Section 145 of the Criminal Procedure Code. His revision petition, against that order, and further writ petition, as well as special appeal petition to the Supreme Court, were dismissed. The plaintiff is undoubtedly correct when he submits that these orders do not preclude a civil action, by way of a suit, for possession. The plaintiff relies on a power of attorney and receipt executed in favour of the fifth and sixth defendants by the first defendant, in 1979 and 1980, as well as a Lease agreement. However, the originals of those documents have not been produced. He submits that the documents were lost, and relies on testimonies of witnesses rendered in criminal proceedings. This Court notices that those depositions were not subject to cross examination, at least by any of the defendants in this case. The plaintiff also submits that the first defendant has been held to be a liar in the 1981 suit, and therefore her version has to be discarded and rejected outright, without a further ado. For these, and the reason that the defendants transparently colluded in 2004 despite their awareness about his claim, and dispute regarding possession, to allegedly transfer title, disentitles them from contesting the suit, which should consequently be decreed.

19. Now, there can be no dispute that an act of fraud unravels the entire underlying transaction. Once such facts are found, the Courts have an obligation to ensure that the person benefiting from the fraud is compelled to give up whatever benefits and advantages were secured by the one committing the fraud. In this case, the fact that the Court, in previous proceedings as between the first three defendants, had disbelieved the first defendant, does not mean that in this case, the plaintiff can, without proving his case of having been in possession, be discharged from the onus of proving his case. The plaintiff was not a party in those previous proceedings; he relies on a Power of Attorney, Receipt and some Lease deed, of 1979, 1980 and 1984, to establish his possession. Yet, the originals of those documents have not seen the light of day in this case. The defendants have denied them. In such circumstances, he has to prove the documents, by leading oral evidence of witnesses' depositions, and the Court has to grant opportunity to the defendants to cross-examine them. The Court has framed various issues, which include the question of continuous possession, and the plaintiff's claim for having perfected title to the property. Findings on these cannot be rendered in the manner suggested by the plaintiff in his oral submissions. Entering any decision on the merits, by ruling that the defendants' cases are false, and that they have indulged in fraud, without granting all parties the opportunity to prove or establish the averments made by them, would be contrary to established procedure, especially when both parties do not agree to dispense with the requirement of leading oral evidence. Furthermore, rendering any finding on fraud, without ever framing any issue in that regard, or granting opportunity to the person(s) to be adversely affected by such findings, would be contrary to fair-play and justice. It is possible that the plaintiff establishes his submissions, and proves lawful possession, on the basis of cogent and convincing evidence. However, the Court cannot, in the circumstances of this case, short circuit or circumvent the requirement of a trial, even if it results in some time.

20. In view of the above reasons, the Court does not find any merit in the plaintiff's contentions urging that the suit be decreed on the existing materials. Having regard to the overall conspectus of the circumstances, the Court is of opinion that the previous direction, ordering the appointment of a local commissioner to record evidence, should be recalled. Therefore, the parties shall take further steps to lead evidence as per the normal procedure, before the Joint Registrar. List the suit before the Joint Registrar, on 26th February, 2011 to enable parties to take steps to lead oral evidence. List before the Court, as per roster after evidence is recorded, on 27.05.2011.

21. I.A. No. 14120/2010 is disposed of in the above terms.


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