Indra v. Hoshiyar Singh & Ors.

1. This Court vide order dated 13th August, 2021 directed that the parties are restrained from selling or alienating the suit properties or changing the nature of the suit properties till further orders. Paragraphs 6 to 9 of the said order are set out below: “6. After arguments were advanced by learned counsel for the plaintiff, learned counsel for defendant No. 10 has entered 2022:DHC:3713 appearance. She states that she has no instructions and was merely asked to appear and take time to take instructions. She seeks an adjournment.

7. In my opinion, there is no ground to give an adjournment in this manner. Defendant No. 10 should have given appropriate instructions.

8. Plaintiff has made out a prima facie case.

9. The parties are restrained from selling, alienating or transferring the suit properties or changing the nature of the suit properties till further orders of this court.”

2. When the matter came up before this Court on 15th September, 2021, the counsel appearing for the defendant no.9 submitted that no construction is going on the suit land. Subsequently, I.A. 13579/2022 was filed on behalf of the plaintiff and notice was issued on 11th November, 2021. The counsel appearing for the defendant no.9 submitted that the interim order dated 13th August, 2021 was communicated to the defendant no.9 on 15th September, 2021, and the defendant no.9 is maintaining status quo in the suit property since then and further submitted that they have stopped raising any further construction on the suit land after 15th September, 2021.

3. Subsequently, I.A.537/2022 was filed on behalf of the plaintiff alleging willful violation of the order dated 13th August, 2021 once again. The photographs as on 20th October, 2021 were filed along with this application, which clearly show that the construction activities were being carried out in the suit property.

4. Replies to the present applications have been filed on behalf of defendants no.2 to 8. Counsels for defendants no. 1 and 2 to 8 submit that there has been no disobedience on part of the defendants no.1 and 2 to 8 of the order passed by this Court on 13th August, 2021. In fact, they support the submission of the plaintiff that the aforesaid order has been wilfully violated by defendants no.9 to 13.

5. The Counsel for the defendants no. 2 to 8 have handed over the copies of the orders passed in WP(C) 5012/2022 and CONT.CAS (C) 576/2022, filed by the defendant no.4, Ravinder Sherawat, wherein orders have been passed directing that no further construction shall be carried out on the suit land.

6. In view of the above, the defendants no.1 to 8 are discharged from the present contempt proceedings.

7. Upon I.A. 1947/2022 being filed by the plaintiff for appointment of Local Commissioner, a Local Commissioner was appointed by this Court on 4th February, 2022 to visit the suit property and determine the extent of construction carried out on the suit land. Pursuant thereto, the Local Commissioner visited the suit property and filed his report along with the photographs of the suit property. The photographs filed with the report of the Local Commissioner shows that a six-storey building has been constructed on the suit land. Further, in the report of the Local Commissioner, it has been mentioned that when he visited the suit property, he met one Advocate Mr. Ganesh Pandey, who claimed to represent one Mr. Mohit Choudhary, who had purchased the suit property and was undertaking construction. Paragraph 30 of the report of the Local Commissioner is set out below:- “30. That at the site of Building under Construction, I met with Advocate Mr. Ganesh Pandey who claimed to represent one Mr. Mohit Chaudhary who was undertaking the construction. Advocate Mr. Ganesh Pandey raised objection that the building under Construction does not form part of the suit property. He also informed me that Mr. Mohit Chaudhary has purchased the property, on which Building under Construction is being raised, from one Mr. Sudhir Gupta. Advocate Mr. Ganesh Pandey informed me that Mr. Mohit Chaudhary is resident of 157/90 Kishangarh. The Site Plan of the Suit Property made by me and Property under Construction marked in 'RED' along with Screenshot of Google Maps showing Suit Property are Annexed as

ANNEXURE-23. The Questions asked by the Hon'ble Court for which the present Commission has been undertaken: Q[1]. Extent of Construction at the Suit Property? Ans. The Construction work is being carried out in some parts of the Suit Property more specifically at the far end (left comer behind the vertical tin walls) of the Suit Property from the Baba Laturiya Marg. The Site Map is attached and the Building under Construction is marked in Red. The Structure of the building is erected consisting of Basement, Stilt, Ground, First, Second, Third and Fourth Floors. Bare walls are erected and the Plaster work on the outer wall of the building was under progress. Q[2]. The approximate dated on which the Construction was undertaken? Ans. The Construction at the site is being carried out continuously, as on the day of the inspection construction workers were carrying out plaster work at the outer walls of the building. Further, it has been informed that the work is continuously being carried out from the last 5-6 months. Q[3]. Status of the ongoing construction at the Suit Property? Ans. The only fresh construction being carried out in the suit property is at the site of Building under Construction, as described above. The said construction has been informed to have been ongoing from the last 5-6 months, which can be evidenced from the fact that the building material was present at and around the Building under Construction. The temporary tin roof structures were present around the building as a living arrangement for the construction workers. Further, on the day of the inspection, Construction workers were present at the site and were carrying out plaster work on the outer walls of the building which was stopped once the commission began. The freshly mixed construction material and Construction machinery was also present at the Site, showing that the construction work has been ongoing.”

8. It was noted in the order dated 18th August, 2022 passed by this Court that the counsel for the defendants no.9 to 13 does not wish to file reply to the aforesaid applications and would rely upon the written statement filed by them. In the written statement filed on behalf of defendants no.9 to 13 on 28th February, 2022, it has been stated that the property in question, where the construction is being carried out, has been sold by the defendants no.9 to 13 to one, Mr. Sudhir Gupta, through an Agreement to Sell dated 4th March,

2021. The said Agreement to Sell has been filed along with the written statement.

9. It is pertinent to note here that the counsel for defendants no.9 and 10 appeared before this Court on 13th August, 2021, 15th September, 2021 and 11th November, 2021, but did not mention about the suit land being sold by the defendants no.9 to 13 by virtue of the said Agreement to Sell. In fact, a stand was taken that no construction is being carried on the suit land. The stand that the suit land has been sold to one Mr. Sudhir Gupta, was taken for the first time in the written statement filed on behalf of the defendants no. 9 to 13.

10. I have perused the aforesaid Agreement to Sell. The said Agreement to Sell is executed on a stamp paper of Rs.100 and is also an unregistered document. It is clear that the aforesaid document has been created only at a belated stage, so as to act as a defence to the present contempt proceedings being initiated against defendants no.9 to 13. In view of Section 17(1A) and Section 49 of the Registration Act, 1908, an unregistered and unstamped Agreement to Sell cannot be relied upon by the Court or taken in evidence. Therefore, the said Agreement to Sell would not create any right, title and interest in the property in favour of the purchaser.