Shrimati Angoori Devi v. Ms. Ritu

8. The Defendant No. 2 was not able to obtain NOC from the Revenue Authorities, for getting the Sale Deed executed in her favour. On being satisfied that the Sale Deed cannot be executed in respect of the suit property, Defendant No. 2 approached the Plaintiff and other family members on 14.09.2005, for refund of the amount paid by them under the Agreement to Sell dated 7th /9th September, 2005. The Plaintiff claimed that she refunded ₹7,00,000/- to Defendant No. 2, but retained ₹3,00,000/-, which she assured to refund upon return of the original documents by Defendant No. 2.

9. The Plaintiff, along with Mr. Satish Kumar, on several occasions, approached the Defendant No. 2, to return the original documents and to take the refund of Rs.3,00,000/- as per the understanding arrived at between them, on 14.09.2005. However, the Defendant No. 2 kept avoiding to return the original documents, on one pretext or the other.

10. The Plaintiff claimed that the Agreement to Sell dated 07.09.2005/09.09.2005 became barred by limitation after the lapse of three years. Moreover, the compromise arrived at between the parties, was contrary to the law and, therefore, could not be implemented as per the settled proposition of law.

11. The Defendant No. 2 thereafter, filed Suit No. 95/2009 for Permanent Injunction against the Plaintiff and co-sharers, seeking Permanent Injunction to restrain the Plaintiff and other co-sharers from alienating, parting or selling the Suit Property.

12. The Plaintiff, after receiving the Summons of the Suit, cancelled and revoked the General Power of Attorney and Special Power of Attorney dated 07.09.2005/09.09.2005 and the Will dated 26.08.2005, executed by her in favour of the Defendant No. 2, vide Deeds of Cancellation dated 21.09.2010. She also obtained information from the Office of the Tehsildar (Notification) through RTI regarding the status of grant of NOC to the Defendant No. 2 or her representative. She was informed on 21.09.2010 that the NOC applied by the Defendant No. 2 vide Application Nos. 15576 and 15577, had been rejected.

13. The Plaintiff, in her Written Statement filed in the said Suit for Permanent Injunction, raised all these objections and also narrated the relevant facts.

14. The Plaintiff further asserted that, on 06.01.2011, she received a Notice dated 04.01.2011 from the Office of the Sub-Registrar, informing her that a Sale Deed had been executed on 29.12.2010 by Defendant No. 2 in favour of Defendant No. 1, Ms. Ritu, daughter of Mr. Ramesh Prakash, resident of Near Pole No. 29, Village and Post Office Mundka, Delhi.

15. The Plaintiff filed her Reply dated 10.01.2011 to the said Notice. When the Plaintiff visited the Office of Sub-Registrar, to submit her Reply on 10.01.2011, Sub-Registrar openly declared that he had no concern in regard to the violation of Section 33 of Delhi Land Reforms Act, 1954 or with the cancellation of the sale documents or the law of limitation applicable in respect of the implementation of the Agreement to Sell. He further stated that he would execute the Sale Deed in favour of the Defendant No. 1.

16. The Plaintiff claimed that in view of the threat extended by the Sub- Plaintiff filed a Suit No. 446/12/11 titled Shrimati Angoori Devi vs. Shri M.B. Tiwari and others, against the Defendant Nos. 1 and 2, the husband of the Defendant No. 2 and the Sub-Registrar. The Plaintiff further submitted that during the course of hearing of the case titled before the learned Civil Judge, Tis Hazari Courts, Delhi, an official from the Office of Subdocuments have not been registered till date and they would be registered subject to the outcome of the Suit.

17. The Suit was dismissed by the learned Civil Judge vide Judgment dated 04.09.2012, on an Application filed by the Defendant Nos. 1 and 2 and her husband, under Order VII Rule 11(d) CPC.

18. The Plaintiff filed an Appeal under Section 96 before the learned Judge Small Cause Court-cum-Additional Senior Civil Judge (West)-cum Guardian Judge, Delhi, but the Appeal was dismissed on 07.11.2014. The Second Regular Appeal No. 91/2015 before this Court, was also dismissed by the Order dated 13.03.2015, of this Court.

19. The Plaintiff stated that, after the Regular Second Appeal was dismissed, Sh. Jasbir Singh, her nephew, went to the Office of SDM, to attend the proceedings in a matter of Gram Sabha Mundka vs. Krishan Kumar and Others, in which his father, Sh. Satish Chander, had been arrayed as a party. On checking the cause-list, he found that the matter titled Shrimati Santosh vs. Ms. Ritu, was listed for hearing before the SDM, for mutation of 1/6th share in the suit property in the revenue records.

20. An Application dated 24.03.2015 was given by the nephew to the SDM, which was duly received. In this Application, it was stated that the alleged Sale Deed in favour of Ms. Ritu, was in violation of the provisions of Section 33 of the DLR Act. It was also alleged that the suit property had never been transferred/sold. Also, it was against the DLR Act as after the sale for the Suit Property, she was not left with 8 acres of agricultural land.It was claimed that the sale made in favour of Ms. Ritu, was on the basis of a General Power of Attorney, which already stood cancelled on 21.09.2010. Thus, a prayer was made that the mutation be not effected in the name of Ms. Ritu, but the learned SDM did not pay any heed to the request of the Plaintiff.

21. Furthermore, the nephew on enquiry from the Office of SDM, learnt that the Sale Deed already stands executed and registered in the name of the Defendant No. 1, Ms. Ritu on 04.10.2011.

22. The Plaintiff took the certified copy of the Sale Deed and noticed that the stamp paper had been purchased on 21.03.2015. The Plaintiff claimed that the sale consideration was mentioned as 53,00,000/- in the Sale Deed executed in favour of the Defendant No. 1, but no details of mode of payment, were mentioned. Apparently, no consideration has been exchanged between the Defendant Nos. 1 and 2. It was recorded that the actual physical possession has been handed over to the Defendant No. 1, which is patently incorrect, as the Plaintiff continues to be in possession of the suit property.

23. The Plaintiff further asserted that the Defendant No. 1 came to her suit property on 26.04.2015 and attempted to take forcible possession thereof.

24. Hence, the Plaintiff filed the Suit for cancellation of the Sale Deed and for Permanent Injunction against the forcible dispossession.

25. The Defendant No. 1, Ms. Ritu, in her Written Statement took the preliminary objection that the Suit was abuse of process of law and has been intended to cause unnecessarily harassment and humiliation to the Respondent and also to extort money, by exerting pressure by filing of frivolous Suit. It was claimed that the Suit was barred by limitation as the Sale Deed is dated 04.10.2011, while the Suit has been filed on 06.08.2015.

26. Furthermore, the Suit was barred under Section 11 CPC, as the Defendant No. 2 had earlier filed Suit No. 95/2009 for Permanent Injunction against the Plaintiff and the co-sharers, in respect of the same property. The second Suit bearing CS No. 446/12/11 titled Angoori Devi vs. Shri M.B. Tiwari & Ors., seeking Declaration and Permanent Injunction in respect of the suit property, had already been dismissed by the learned Civil Judge vide Judgment dated 04.09.2012, which was upheld in the First Appeal, as well as, in the Second Appeal.

27. It was next asserted that the Plaintiff has no locus standi to file the Suit, as she is neither the owner nor has any right, title, interest in the Suit Property. The Plaint does not disclose any cause of action and the Suit is liable to be rejected under Order VII Rule 11 CPC. The Defendant No. 1 further asserted that proper advolrem court fees had not been paid on the Sale Deed, which was for the consideration of Rs.53,00,000/-. Moreover, the Plaintiff has not approached the Court with clean hands.

28. On merits, all the contentions made in the Plaint, were denied.

29. The Plaintiff in her Replication, reaffirmed the assertions made in the Written Statement.

30. The Issues were framed on the pleadings by the learned Trial Court, on 15.01.2018, which are as under:- “1) Whether the suit is barred by limitation? OPD 1 and 2.

2) Whether the suit is barred under the provisions of under the provisions of Section 11 of the Code of Civil Procedure, 1908 for the reasons mentioned in the preliminary objections No.3 of the written statement filed by Defendant No. 1 ? OPD I and 2.

3) Whether the Plaintiff has no locus standi to file the present suit? OPD 1 and 2.

4) Whether the suit filed by the Plaintiff is without cause of action as Plaintiff has sold the property by virtue of sale documents dated 7" September, 2005? OPD 1 and 2.

5) Whether the Plaintiff has not properly valued the suit for the purposes of Court Fee and jurisdiction? OPD 1 and 2.

6) Whether the Plaintiff is entitled for declaration of documents as mentioned in prayer clause (a) of the suit as null and void? OPP Plaintiff.

7) Whether the Plaintiff is entitled for a decree of permanent injunction thereby restraining the Defendants from forcibly dispossessing the Plaintiff from the suit property? OPP

8) Relief.”

31. A Preliminary Issue was framed as to whether the present Suit was barred under Section 11 of the CPC, which was directed to be treated as a Preliminary Issue by the learned Additional District Judge vide Order dated 15.01.2018.

32. The learned ADJ referred to the earlier Suit filed by the Plaintiff, seeking a Declaration in respect of the documents dated 07.09.2005/ 09.09.2005 as null and void. However, the learned Civil Judge rejected the Suit, as being time barred. The Order of the learned Civil Judge was upheld in First Regular Appeal, as well as, in the Second Regular Appeal. It was thus, held that the present Suit was barred by res judicata in view of the earlier Suit filed between the same parties, litigating under the same title. The Suit of the Plaintiff was thus, rejected.

33. Aggrieved by the said Order dated 05.07.2023, the present Regular First Appeal has been preferred.

34. The grounds of challenge are that the earlier Suit No. 446/12/11, titled Angoori Devi vs. Sh. M.B. Tiwari & Ors., did not have issues substantially the same, as in the present Suit. Moreover, the parties to the Suit were different. In the present Suit, Mr. M.B. Tiwari and Mr. Ramesh Prakash, have not been arrayed as the Defendants. Furthermore, there was another Defendant i.e. SDM/RA, District West (Punjabi Bagh), New Delhi.

35. It is further submitted that in the earlier Suit No. 446/12/11, the Plaintiff/Appellant had sought Declaration of the Agreement dated 22.12.2003 and subsequent Agreement dated 09.09.2005, as null and void, having been entered against the provisions of law and also to declare the alleged Sale Deed executed by the Defendant Nos. 2 and 3 as null and void.

36. In the present Suit, the relief sought is the Declaration of Sale Deed dated 29.12.2010 registered on 04.10.2011, to be declared as null and void. It has not been considered that after the Agreement to Sell, the land left with the Appellant, was less than eight standard acres of land. The Sale Deed was in violation of Section 33 of the DLR Act.

37. It has not been appreciated that the cause of action to file the present Suit, was the failure of the Respondent No. 3, SDM, to take into account the objections filed on behalf of the Plaintiff against the proposed mutation, on the basis of the Sale Deed dated 29.12.2010.

38. It has also not been considered that the mutation of the suit property in the name of the Defendant No. 1, was in violation of Section 33 of the DLR Act. The Sale Deed is void ab initio and the present Suit is for Declaration of the Sale Deed dated 29.12.2010 as null and void. It has also not been considered that in the absence of the registration of the Agreement to Sell etc. those documents were baseless and had no force of law.

39. At the time of filing the earlier Suit, the Sale Deed had not been registered, as had been stated by the official from the Office of Sub- 04.10.2011, which act constitutes an explicit violation of the undertaking given by the officials of the Sub-Registrar.

40. It is further claimed that the prayers made in the previous Suit for declaring the Sale Deed dated 29.12.2010 as illegal, was based on the assertions that the documents on the basis of which the Sale Deed was executed, itself was void, which was not similar to the prayer made in the present Suit.

41. It was further asserted that principle of res judicata was not applicable to the facts in hand. The earlier Suit No. 446/12/11, had been rejected under Order VII Rule 11 CPC. No evidence was led in the said Suit, but was dismissed on a technical ground of limitation.

42. The principle of res judicata was not applicable in the absence of any formal issues and therefore, the principle of res judicata could not have been applied. Furthermore, the Appellant came to know about the registration of the Sale Deed only on 18.03.2015 and therefore, the Suit is not barred by limitation.

43. Furthermore, in the earlier Suit, there was no finding about the fact that the Sale Deed had been executed in violation of the DLR Act. It has been erroneously held that the Suit was barred by limitation.

44. A prayer is, therefore, made that the impugned Judgment be set-aside.

45. The Appellant in support of the assertions, filed the Written Submissions reiterating the grounds urged in the Appeal.

46. Despite an opportunity being given, no Written Submissions have been filed on behalf of the Respondents. Submissions heard and record perused.

I. Whether the Sale Deed Dated 29.12.2010 was violative of S.33 Delhi

47. In order to appreciate the legal contentions that have been raised in the present Appeal to challenge the Sale Deed dated 29.12.2010, it would be significant to first narrate the facts, in the right perspective. Smt. Angoori Devi in her amended Plaint, has explained that she was having 1/6th share in the agricultural land admeasuring 65 Bighas and 2½ Biswas in the revenue estate of village Mundka. Her undivided share admeasured 10 Bighas and 16 Biswas. It was also stated that about 13 Bighas and 18 Biswas of the aforesaid property vested in Gaon Sabha, village Mundka vide Order dated 10.03.2008 under Section 81 Delhi Land Reforms Act, 1954.

48. The Plaintiff and Defendant No.2 Smt. Santosh admittedly entered into an Agreement to Sell dated 22.12.2003 in respect of sale of one Killa out of 1/6th share in the aforesaid Khasras, for a total sale consideration of Rs.10,00,000/- with the Plaintiff. This Agreement was in respect of a part of her land holding and not the entire land. On the effectuation of this Agreement to Sell, the Plaintiff would have been left with less than 8 standard acres of land, contrary to Section 33 of the Delhi Land Reforms Act, 1954.

49. It is further explained and is not in dispute, that Smt. Santosh filed a Suit bearing No.412/2004 for Specific Performance of the Agreement to Sell dated 22.12.2003, in the Court of learned District Judge, Delhi.

50. It may be observed that Smt. Angoori Devi, the Plaintiff herself mentioned that initially the ownership was in respect of 65 Bighas and 2 ½ biswas of land. The land admeasuring about 13 Bighas and 18 Biswas, was vested in Gram Sabha Village Mundka, vide Orders dated 10.03.2008 under Section 81 of the Delhi Land Reforms Act, 1954. The Plaintiff ceased to have any share in the land vested in the Gram Sabha. The compromise itself recorded the total area in the Khasra admeasured 39 Bighas and

51. The Suit for Specific Performance was compromised, on 09.09.2005. According to the said compromise, the total area in the Khasra admeasured

39 Bighas and 2 Biswas and the Agreement to Sell dated 09.09.2005 was in respect of the 1/6th share of the Plaintiff Angoori Devi, calculated to 4 Bighas and 16 Biswas.

52. In view of the compromise so arrived between the parties on 09.09.2005, the Suit No.412/2004 was disposed of, as compromised.

53. From the averments in the Plaint itself, it emerges that the first Agreement to Sell dated 22.12.2003 had been executed by Smt. Angoori Devi only in respect of a part of her 1/6th share in the entire land. This transaction was hit by Section 33 Delhi Land Reforms Act,1954 which prohibits such sales, if the land which gets left after partial sale of land, is less than 8 acres of the land. Therefore, the Sale Deed could not have been executed thereto, leading to filing of the Suit No.412/2004 by Smt. Santosh. However, the parties then arrived at a Settlement, whereby a fresh second Agreement to Sell dated 09.09.2005 was executed, which was in respect of the entire 1/6th share of Angoori Devi.

54. It is evident that the second Agreement to Sell dated 07.09.2005/09.09.2005, being in respect of the entire 1/6th share of the Plaintiff in the Khasra 132 series, was not hit by Section 33 of the Delhi Land Reforms Act, 1954, which is the main ground on which the Appellant had been questioning the Agreement to Sell or the acts done thereafter.

55. The Plaintiff's challenge to the validity of the Sale Deed dated 29.12.2010, essentially, is on the ground that the Sale transaction was violative of Section 33 of the Delhi Land Reforms Act, 1954, which is not tenable as the second Agreement to Sell was in respect of the entire 1/6th share of Smt. Angoori Devi.

56. This also completely demolishes the challenge of Angoori Devi about the Sale Deed having been manipulated against the law and the mutation in the Revenue Records had been done surreptitiously. These challenges are absolutely without any basis.

II. Whether Smt. Angoori Devi is entitled to return of Rs.7,00,000/-:

57. The Plaintiff further asserted that because the Agreement to Sell were against Section 33 Delhi Land Reforms Act, 1954 and unenforceable, the Defendant Smt. Santosh Devi was unable to obtain any NOC from Revenue Authorities. She had approached Angoori Devi on 14.09.2005 for refund of the amounts paid by her, under the Agreement to Sell dated 09.09.2005. Smt. Angoori Devi returned Rs.[7] lakhs, but retained Rs.[3] lakhs, as Smt. Santosh did not return the original Agreement to Sell, etc. She further claimed that she assured that she would return balance Rs.[3] lakhs, on return of original documents. The Plaintiff on various occasions approached Smt. Santosh for return of the original documents, but Smt. Santosh kept avoiding on one pretext or the other.

58. However, these assertions remain vague with no details about the dates or manner of return of money, and bereft of any cogent corroborative documentary evidence to establish these facts. Pertinently, no steps whatsoever, were taken by Smt. Angoori Devi since 2005, in respect to the second Agreement to Sell, etc. till the Defendant Smt. Santosh filed a Suit No.95/2009 for Permanent Injunction against Smt. Angoori Devi and Others, for restraining her from dispossessing her from the suit premises.

59. Significantly, in the Written Statement filed by Smt. Angoori Devi in the said Suit, she admitted the execution of the first and the second Agreement to Sell, pursuant to the Compromise inter-se the parties. However, it was claimed that no sale documents were ever executed in favour of Santosh Devi, nor she was entitled to any Sale Deed being executed in her favour, on account of violation of Section 33 DLR Act. She, therefore, claimed that Santosh Devi had acquired no right, title, interest in the Suit property and that she was not entitled to any relief of Permanent Injunction against the dispossession.

60. Therefore, the claim of Smt. Angoori Devi that she had returned Rs.7,00,000/-, also does not get substantiated.

III. Whether the Agreement to Sell, etc. Dated 07.09.2005/09.09.2005 were cancelled vide Cancellation Deed dated 21.09.2010, by Smt. Angoori Devi:

61. The further conduct of the Plaintiff is significant, as she, on receiving the Notice in Suit No.95/2009 for Permanent Injunction by Smt. Santosh Devi, cancelled and revoked the GPA, SPA and Will dated 07/09.09.2005 executed by her, vide Cancellation Deed dated 21.09.2010. However, no such Cancellation Deed has been placed on record, in support thereof. Moreover, the basis for cancellation, is also not justified under law.

62. Furthermore, though Smt. Angoori Devi had thereafter filed Suit NO. 446/12/11 raising the same challenge, the said Suit was dismissed on 04.09.2012 as barred by limitation, which finding was upheld right up to the Second Appeal.

IV. Whether the Sale Deed Dated 29.12.2010 was validly Executed:

63. Smt. Santosh Devi thereafter, on the basis of Agreement to Sell, etc. dated 07.09.2005/09.09.2005 executed the impugned Sale Deed in favour of Defendant/Respondent Ritu, on 29.12.2010. There is nothing to show that there was any legal impediment, in the execution of this Sale Deed. Therefore, the sale deed was executed validly and there existed no ground for its cancellation.

V. Effect of earlier Decision dated 04.09.2012 in Suit No.446/12/11 for

64. The Issues in the present Suit were framed, on 15.01.2018. The Issue No.2 was taken as Preliminary Issue. It reads as under: “2) Whether the suit is barred under the provisions of under the provisions of Section 11 of the Code of Civil Procedure, 1908 for the reasons mentioned in the preliminary objections No.3 of the written statement filed by Defendant No. 1? OPD I and 2.”

65. Smt. Angoori Devi earlier filed Suit No.446/12/11 for Declaration and Permanent Injunction in the year 2011. In that Suit, she claimed that Agreement to Sell dated 09.09.2005 was null and void, being violative of Section 33 DLR Act 1954 and, therefore, she be declared as owner of the Suit property; the Defendants be restrained from creating any third party rights in the suit property and for restraining Defendant No.1 Shri M.B. Tiwari from registration of any Sale Deed executed by Defendant No.2 Smt. Santosh Devi in favour of Defendant No.3 Ritu and for restraining Smt. Santosh from creating any third party rights in the suit property.

66. The learned Civil Judge vide Judgment dated 04.09.2012 noted that the Declaration was sought in respect of the Agreement dated 22.12.2003 and subsequent Agreement dated 07.09.2005, which was patently barred by limitation, since the Suit had been filed on 14.01.2011 i.e. beyond the period of three years. Consequently, the Suit was dismissed as barred by limitation, under Order VII Rule 11(d) CPC.

67. The Plaintiff filed an Appeal under Section 96 before the learned Judge Small Cause Court-cum-Additional Senior Civil Judge (West)-cum Guardian Judge, Delhi, but the Appeal was dismissed on 07.11.2014. The Second Regular Appeal No. 91/2015 before this Court, was also dismissed by the Order dated 13.03.2015, of this Court.

68. First and the foremost, it emerges that the reliefs claimed in the 2011 Suit were to avoid the sale documents of 2003 and 2005, on the ground of they been violative of Section 33 DLR Act, 1954. The Suit being filed in 2011 for challenging the sale documents of 2003 and 2005, were held to be patently barred by limitation. Pertinently, the Plaintiff/Appellant was unsuccessful before the First Appellate Court and thereafter, in the second Appeal before this Court aswell. The Plaintiff/Appellant was, therefore, unsuccessful in challenging the sale documents, that had been executed by her, in favour of Smt. Santosh.

69. Thereafter, the Plaintiff Smt. Angoori Devi has filed the present Suit No. 190/2016 (Old No.7874/2016) against Ritu, Smt. Santosh as well as the SDM, wherein same averments were made that the two Agreement to Sell dated 22.12.2003 and 09.09.2005 were against Section 33 DLR Act, 1954 and therefore, were against the law. The compromise inter-se the parties on 09.09.2005 was also against the law and cannot be implemented. Furthermore, the Power of Attorney, Agreement to Sell, etc. had been revoked, vide Cancellation Deed dated 21.09.2010.

70. The Plaintiff by way of the present Suit had also claimed the same relief that the Sale Deed dated 29.12.2010, executed on the basis of Agreement to Sell of 2005, be declared as null and void and the Defendants be restrained from taking forcible possession of the Suit property without due process of law. Once the challenge to Agreement to Sell of 2005, itself has failed and the findings have attained finality, the challenge to the Sale Deed executed on the basis of the Agreement to Sell, also is not sustainable.

71. The present Suit claiming the same reliefs has been filed in 2015 is, on the face of it, barred by limitation.

VI. Whether the Present Suit is Barred by Limitation and the principles of

72. The legal question which now arises is whether the Judgment/Order dated 04.09.2012, would operate as res judicata. It is pertinent to observe that this rejection of the earlier 2011 Suit was confirmed, not only in the first Appeal but also in the second Appeal and had attained finality. Once the relief having been claimed, having become barred by limitation, the Plaintiff could not have filed another Suit on the same facts again in 2015, or claim that the findings of the earlier Suit being barred by limitation, would not also apply to the present case, which has been filed four years, thereafter.

73. The main contention is that Order dated 04.09.2012 under Order VII Rule 11 CPC, rejecting the Suit, does not operate as res judicata. For the principle of res judicata to be applicable, not only are the parties required to be the same, but such a finding must be on the merits of the case; rejection under Order VII Rule 11 CPC without any trial, cannot operate as res judicata.

74. Section 11 CPC defines the principle of res judicata, which reads as under: “Res judicata.— No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I.—The expression “former suit” shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto..........”

75. From the bare perusal of the Section it emerges that to invoke the principle of res judicata, it has to be shown that the subject matter of the Suit was directly and substantially issued in the former Suit; that it must be between the same parties litigating under the same title; that the Court is competent to try such subsequent Suit in which the issue has subsequently arisen; and it should be heard and finally decided by such Court.

76. It is pertinent to observe that the Plaintiff, as per her own averments in the Plaint, on an enquiry from the Office of Dy. Commissioner, she was informed that the NOC applied vide Application No.15576 and 15577, applied by the Plaintiff, had been rejected on 06.01.2011. The Plaintiff had received a Notice dated 04.01.2011 from the office of Sub-Registrar stating therein that on 29.12.2010, a Sale Deed was executed by Defendant No.2 and Defendant No.1 Ms. Ritu.

77. The Plaintiff had given a Reply dated 10.01.2011 to the Sub- Reply given to the Notice of the SDM to informed that the alleged transaction was against Section 33 Delhi Land Reform Act, 1954 and that she had already cancelled the GPA, SPA and Will in favour of Smt. Santosh Devi.

78. The Plaintiff had claimed that the official of sub-registrar had appeared before the Court on 24.08.2011 in the earlier Suit of 2011 and had stated that they had not registered the documents in question till date and would register the same subject to the outcome of the Suit. It was, therefore, asserted that once the assurance had been given by the Registrar that no Sale Deed would be executed, the Sale Deed in question is bad in law and in breach of the Statement made by the Registrar.

79. This contention of the Appellant is blatantly incorrect, since the Sale Deed had also been executed on 29.12.2010, and any statement made on 24.08.2011 was contrary to the record, and pertained only to the registration of the Sale Deed and not to its execution.

80. Smt. Angoori Devi, as per her own assertions had received a Notice from the Office of Sub-registrar on 04.01.2011 about the Sale Deed, to which she had even given a Reply raising the same objection of the Agreement to Sell, etc. having been cancelled by her on 21.09.2010, and objecting to the registration of the Sale Deed.

81. It is quite evident that the Appellant was well aware about the execution of the Sale Deed from this Notice of Sub-registrar dated 04.01.2011 and for her to assert that she came to know about the execution of Sale Deed in 2015, through her nephew, is blatantly disproved from her own averments in the Plaint. Moreso, when she had earlier filed the Suit No. Suit No.446/12/11 for Declaration and Permanent Injunction, raising the same challenge to the Agreements to sell, she was well aware of the Sale Deed dated 29.12.2010, which she chose not to challenge. Her challenge to the Sale Deed in this subsequent Suit, is also barred by constructive resjudicata.

82. In the present case, the facts involved in the earlier Suit of 2011, are exactly the same as in the present Suit. The parties also are substantially the same i.e the core parties, viz. Smt. Santosh and Ms. Ritu, are the same in both suits. It had been held that the Suit in 2011 itself, was barred by limitation in challenging the Agreement to Sell dated 22.12.2003 and 07.09.2005/09.09.2005. These findings of the Suit being barred by limitation had attained finality, right up to second Appeal. Therefore, the issue had been heard and finally decided.

83. The learned ADJ had rightly relied upon the judgment of Hanuman Dass Totla vs. Hemant Vithal Kamat and Ors. Civil Appeal No.4665/2021 wherein it was held that the issue of res judicate cannot be considered under an Application under Order VII Rule 11 CPC. It was rightly pointed out that in the present case the issues had already been framed and Issue No.2 had been taken as a preliminary issue. This was one legal issue which did not require any evidence and thus, could have been dealt with without recording of evidence. It is not as if this issue has been considered under Order VII Rule 11 CPC, but in answer to the preliminary issue that was framed.

84. In Barkat Ali vs. Badri Narayan AIR 2001 Raj. 51, it was held that decision on question of limitation, if decided finally in the previous proceedings would operate as res judicata in the subsequent proceedings and this proposition of law cannot be disputed.

85. The learned ADJ had also rightly observed that the Sale Deed dated 29.12.2010 was executed pursuant to the Agreement to Sell dated 09.09.2005 which had been a subject matter of the earlier Suit of 2011 when the said Agreement to Sell itself had become beyond challenge, the subsequent Sale Deed executed on the basis of those documents, cannot be questioned.

86. As already observed, it emerges from the pleadings of the Plaintiff that she became aware of the registration of the Sale Deed dated 29.12.2010 in January, 2011 itself from the Notice of the SDM dated 04.01.2011 and the Suit has been rightly rejected on the findings of limitation having become final and operated as res judicata in this subsequent Suit. Conclusion:

87. There is no merit in the present Appeal, which is hereby, dismissed.

88. The pending Application(s) are disposed of accordingly.

JUDGE JULY 09, 2026