Mohd. Ikram, Adv. v. SHRI ABDUL SALAM & ANR. ......

1. This execution first appeal is filed by the appellants, who had filed objections in the executing court against execution of the judgment and decree dated 31.1.2012 passed in favour of the respondent no.1/decree holder with respect to the property being H.No. C-428 (wrongly recorded as H.No. C-420A in the impugned order dated 10.10.2013), Gali No. 10, (out of Khasra No. 1/7) Brij Puri, Delhi-94.

2. Objectors in their objection applications stated that the property originally belonged to Sh. Ram Saran, who sold it to Shamshad, who further 2014:DHC:6173 sold it to the judgment debtor (JD)/respondent no.2/Sh. Hussain Ahmad and who thereafter sold it to Jaibun Nisha and who further sold it to Sh. Israr and Sh. Israr sold 50 sq. yds to the objector Mohd. Shakir (petitioner no.1 herein) and who has inducted a tenant Mohd. Akil (petitioner no.3 herein). In sum and substance the objectors claimed that they have independent title to the property having purchased it from Smt. Jaibun Nisha.

3. At this stage, it must be noted that Smt. Jaibun Nisha is none other than wife of JD/respondent no.2/Sh. Hussain Ahmad. Objectors Mohd. Shakir and Mohd. Akil are the real brothers of Sh. Israr and objector Smt. Kaneez Fatima is the mother of Sh. Israr. The issue in the present case is whether Sh. Israr validly purchased rights in the suit property from Smt. Jaibun Nisha.

4. Learned counsel for the appellants has claimed that objectors validly received title to the suit property from Smt. Jaibun Nisha because JD/respondent no.2/ Sh. Hussain Ahmad had by virtue of an agreement to sell, affidavit, receipt, all dated 14.5.2004 had transferred rights in the suit property to Smt. Jaibun Nisha i.e the husband/JD/respondent no.2 has transferred rights in the suit property to his wife Smt. Jaibun Nisha in terms of the documentation dated 14.5.2004, and that since objectors have purchased rights in the suit property from Smt. Jaibun Nisha through Sh. Israr in November 2008 and December 2008 respectively, objectors/appellants have an independent title and are not liable to be evicted in execution of the judgment and decree dated 31.1.2012.

5. The objection applications as also this petition is a gross abuse of the process of the law because the documents dated 14.5.2004 allegedly executed by the JD in favour of his wife Smt. Jaibun Nisha are not only forged and fabricated documents created only to defeat the rights of the decree holder/respondent no.1 but also that even if we assume that the documents were executed on the dates they purport to be executed, even then the documents are illegal documents which do not confer any rights upon either the objectors or their predecessor Sh. Israr.

6. The fact that the documents dated 14.5.2004 by which JD is allegedly said to have transferred his rights in the suit property to his wife Smt. Jaibun Nisha are forged and fabricated documents becomes clear from the fact that the objectors cannot establish that the documents were in fact executed on 14.5.2004 as claimed because the payment which is said to have been made under the documentation is said to be in cash and not in cheque. Not only there is no payment in cheque, these documents have been executed on 14.5.2004 and consequently, these documents cannot create any rights by virtue of the amended Section 53-A of the Transfer of Property Act, 1882 which requires that the agreement to sell must be registered and stamped with 90% of the value of the consideration of the property transferred. Section 53-A of the Transfer of Property Act was amended by Act 48 of 2001 w.e.f 24.9.2001 and the effect of this amendment is that no agreement to sell in the nature of part performance under Section 53-A can be looked into unless the document is stamped and registered. Once the documents dated 14.5.2004, even assuming they were executed on 14.5.2004, are against the provisions of law, then surely no rights under the same can be claimed by virtue of the amended Section 53-A of the Transfer of Property Act, as the requirements thereof are not complied with.

7. I must also note that I put a pointed query to the counsel for the appellants/objectors to show as to if the documents dated 14.5.2004 were executed, how they were actually acted upon including by filing the same with income tax authorities or for the property tax purpose or in other public record, and the counsel for the appellants/objectors had to concede that the alleged documents dated 14.5.2004 have never been filed with any public authorities for Smt. Jaibun Nisha or her alleged successors in interest to claim any rights in the same. Clearly, therefore, the documents dated 14.5.2004 are forged and fabricated documents and did not confer any rights upon the appellants or their predecessor in interest Sh. Israr.

8. It is therefore clear that the present petition is an abuse of the process of the law because objectors are closely related and the documentation executed in favour of Smt. Jaibun Nisha has been illegally prepared to deprive the decree holder the fruit of the decree. Suit was filed in this case way back on 1.3.2005 and which was decreed on 31.1.2012, however even as of today in November, 2014, the decree holder has not been able to take benefit of the decree because objectors have prevented the execution of the decree.

9. In view of the above, the present petition is dismissed with costs of Rs.50,000/- payable to the decree holder/respondent no.1. Costs shall be paid within a period of four weeks from today.

NOVEMBER 18, 2014 VALMIKI J. MEHTA, J. ib