Nirmal @ Nirmala & Anr. v. Ram Chand

1. This is an application under Order XXII Rule 10 of the CPC filed by the Applicants praying that they be substituted in place of the Appellants. The Applicants in this application are Smt. Mamta Singhal and Mr. Sunil Kumar Singhal. The application is opposed vehemently by the Appellants and both sides were ad idem that this application ought to be decided first before the final hearing in the appeal, so that parties may be aware of their respective standing. Accordingly, arguments were heard on 17th May, 2018.

2. The appeal arises out of a judgment and decree dated 31st August, 2018:DHC:3455 2009 passed by the Trial Court, dismissing the suit filed by the Appellants.

3. The brief facts are that one Mr. Nand Lal was the owner of Shop NO. 70, Sarojini Nagar Market, New Delhi (hereinafter, „suit property‟). One, Mr. Ram Chand, brother of Mr. Nand Lal approached him seeking permission to create a counter space on the rear side of the shop. Since Mr. Nand Lal was in financial difficulties, with the intention of earning some income, he permitted his brother to have a counter at the rear side of the shop. A partnership was to be entered into between them, however, it did not bear fruition.

4. On 5th March, 1997, the shop was sold by Mr. Nand Lal to one, Mr. Jagdish Lal Jidani vide Agreement to Sell and a Power of Attorney was also issued to one, Mr. Devender Kumar Chadha. On the same day i.e., vide document dated 5th March, 1997, an agreement-to-sell was entered into by which Mr. Jidani sold the rear portion of the shop to Smt. Nirmala, wife of Mr. Nand Lal. A General Power of Attorney was also executed by Mr. Chadha in favour of Mr. Nand Lal which was registered in respect of the rear portion. Thus, the front portion remained with Mr. Jidani and rear portion was with Smt. Nirmala.

5. The Applicants claim that they entered into an agreement dated 16th August, 2000, being an agreement to sell with Mr. Chadha, which he executed pursuant to the Power of Attorney dated 5th March 1997. On the basis of the said agreement-to-sell, the Applicants claim, that they have even got a conveyance deed registered by the L&DO dated 29th April, 2006, in their favour.

6. It is the submission of the Applicants that in view of the said conveyance deed, the Applicants have now become owners of the entire shop and Mr. Nand Lal or his wife, have no rights in the suit property.

7. In view of the fact that the entire ownership vests in them, Mr.Kantawala submits that the applicants be substituted in place of Mr. Nand Lal and Smt. Nirmala since the Appellants have no right, title, or interest in the suit property.

8. On the other hand, Mr.Tomar, Adv. appearing for the Appellants submits that the present application is yet another attempt by the Applicants to indirectly obtain a declaration of ownership on the shop. He submits that an application under Order I Rule 10 CPC had been filed by the same very Applicants, which was dismissed on 23rd March, 2017. Mr.Tomar submits that the said application under Order I Rule 10 CPC was also premised on the conveyance deed executed in respect of the entire shop. The said application was dismissed with the following observations: - “By way of this application (CM No.13892/2014), the applicants Sunil Kumar Singhal and Smt. Mamta Singhal seek impleadment as respondents in the present appeal. The impleadment is sought by the aforesaid applicants asserting that they became aware of this appeal when appellant herein had filed a suit for cancellation of conveyance deed in favour of the applicants way back on 29th April, 2006. It is pertinent to note that this appeal arises out of the suit for possession filed by the appellants/plaintiffs against the respondents herein. Vide impugned judgment, the said suit for possession has been dismissed but the injunction has been granted in favour of the appellants against respondent to the effect that they will not create any third party interest in the suit property. It is equally pertinent to note that the respondent herein had filed an application being C.M.No.19344/2011 seeking to bring on record subsequent facts and the said application is still pending adjudication. The subsequent fact sought to be brought to the notice of the Court is that the applicants- Sunil Kumar Singhal and Smt. Mamta Singhal are the owners of suit property as they have purchased it from Attorney of appellant no. 2- Nand Lal. C.M.No. 19344/2011 has also been heard with the present application. Learned counsel for the appellants submits that the applicants are neither necessary nor proper party for the reason that they have purportedly sold the front portion of the shop in question, whereas the suit pertains to the rear portion of the said shop. This is controverted by applicants‟ counsel by asserting that this conveyance deed in question is for the entire shop. It is asserted that impleadment is essential as the decision in this appeal will seriously impact the pending suit for declaration in Patiala House Courts. Nothing else is urged by either side. Upon hearing learned counsel for the parties on both the applications and on perusal of the record, it emerges that the copy of the conveyance deed of 29th April, 2006 does not clearly spell out as to whether front or rear portion of the shop in question was sold/leased out. This appeal arises out of a suit, which relates to rear portion of the shop in question and issue of title was not subject matter of the suit as well as the present appeal. So, the pendency of suit for cancellation of conveyance deed will really have no bearing on the fate of this appeal. In view of the aforesaid, impleadment of applicants is deemed to be neither necessary nor proper. Hence, the application for impleadment i.e. C.M.No.13892/2014 is dismissed without commenting on the merits of the case”.

9. Further, it the submission of Mr. Tomar that Mr. Chadha did not have any rights in the property which he could have transferred to the Applicants. He further submitted that the present suit is in respect of the rear portion of the property, which admittedly, Mr. Chadha has transferred to Mr. Nand Lal by General Power of Attorney and to Smt. Nirmala by agreement-to-sell dated 5th March, 1997.

10. The Court has considered the submissions of both sides. Firstly, there is no doubt that the application for impleadment under Order I Rule 10 CPC was based on the very same documents which are now being relied upon by the Applicant. The conveyance deed dated 29th April, 2006, which was executed by the L&DO was the basis of the impleadment application. Once the Court has already ruled that the Applicants are not even necessary and proper parties to the present appeal, the question of substituting them in place of the Appellants cannot arise. The application moved by the Applicants is nothing but an attempt to completely non- suit the Appellant and seek declaration through indirect means i.e., through the application, under order XXII Rule 10 CPC, which is impermissible. The mere factum of the conveyance deed having being executed by L&DO by itself cannot vest title in the Applicants inasmuch as the source of the said conveyance deed is a document executed by Mr. Devender Kumar Chadha in favour of the Applicants.

11. This Court will have to examine as to whether Mr. Chadha even had any rights to transfer in favour of the Applicants. Moreover, the transaction dated 5th March 1997 was one in which the Agreement to Sell was in favour of Mr. Jidani and the Power of Attorney was in favour of Mr. Chadha. These two transactions are inalienable. There was only one transaction dated 5th March 1997. From the documents of the same date executed in favour of Smt. Nirmala for the rear portion of the shop, it appears at this stage that no rights could have remained in Mr. Chadha for the said rear portion of the shop. In the present suit between the two brothers relating to the rear portion of the shop, applicants who purchased the property allegedly from Mr. Chadha cannot be substituted in place of the Appellants. Moreover, the L&DO also has to clarify as to how a Conveyance Deed could have been executed in favour of the Applicants when admittedly the present legal proceedings were pending between the parties.

12. Under such circumstances, the substitution cannot be permitted, however, the Applicants are permitted to remain present during the course of hearing of the appeal, in order to clarify any issues that arise for adjudication in the present appeal. In order to enable effective adjudication of the appeal, notice is issued to the L&DO through the Standing Counsel, UOI, with a direction to produce the original record relating to the suit property Shop no.70, Sarojini Nagar, New Delhi, wherein conveyance deed is claimed to have been executed in favour of the Applicants. Copy of this order be attached with the notice to the Standing Counsel. Notice be returnable on 30th May 2018, the date already fixed for further arguments.

13. With these observations, the application is disposed of.

14. Anything stated in this order shall not be construed as a final decision on any issue, yet to be adjudicated, in the appeal.

PRATHIBA M. SINGH Judge MAY 24, 2018 neelam/ds