Rajesh Chhabra v. Radhey Lal Jeswani and others, whereby the

that recently Rishav Chhabra had attained majority. Smt. H. William was the tenant of Vinay Chhabra, and after her death, defendant no.4&5 became tenants in the disputed house, who had handed over the possession of the tenanted accommodation to the defendant no.2&3, prior to the filing of the suit, as such, defendant no.2&3 were the owners in possession of the disputed house.

16. It was specifically denied that the disputed property, was the property of the joint Hindu family of Sardari Lal. It was also denied that a family partition took place in the year 1980 between the legal heirs of late Sardari Lal, in which the property devolved on Mangal Sen Chhabra. It was further alleged that in suit no. 28 of 1996, title of the disputed property could not have been adjudicated, as such, the decree passed in that suit was null and void, which was not binding 6 on defendant no.2&3, the decree was also not registered, as such,it had no legal effect. It was further alleged that the decree in suit no. 28 of 1996 was passed against minor defendant no.3, which was not for his benefit, as such, the defendant no.2&3, were not bound by the decree dated 31.3.1999.

17. It was further averred by them that the High Court in its order dated 31.7.1995 had not accepted plaintiff 's father Mangal Sen Chhabra, as the owner of the disputed house and due to this finding, Mangal Sen Chhabra's release application under section 21 of the UP Act no. 13 of 1972, was rejected. The High Court also did not accept in its above order, the alleged consent of the brothers. It was also alleged that the defendants were not bound by the decree passed in O.S. No. 539 of 2000 Mangal Sen Chhabra versus Rajesh Chhabra, by the court of Civil Judge(Jr Division), Jhansi because it was a collusive decree. Further, Mangal Sen Chhabra was not the owner of the disputed house as such, no question arises of Rajesh Chhabra being the owner of the disputed house . The alleged partition that took place in the year 1995, between Rajesh Chhabra and Mangal Sen Chhabra, was illegal and fraudulent, which was void. It was further averred that P.A. case no.8 of 2002 Rajesh Chhabra versus Samson William and others, under section 21 of the UP Act no. 13 of 1972, was pending. In P.A. case no. 65 of 1986, no affidavit was sworn by late Vinay Chhabra in favour of Mangal Sen Chhabra on 16.12.1986, the affidavit submitted by Mangal Sen Chhabra was fraudulent which was evident from the order dated 31.7.1995 passed by the High Court. The defendants accepted that agreement to sell dated

20.4.2005 was executed by defendant no.2&3 in favour of defendant no.1, for a consideration of ₹ 22 lakhs ,which was a void document, because the 2 Lacs, which was a valid document. It was denied that any sale deed regarding the disputed house was executed by them on 20.4.2005. It was further alleged that the plaintiff had no cause of action to file the present suit. The suit was 7 barred by section 34, 38 and 41(h) of the Specific Relief Act, the suit was undervalued and the court fees paid was insufficient, the plaintiff was bound by the decree dated 16.8.2003 passed by the court of JSCC,Jhansi in case no. 118 of 1996 Rajesh Chhabra and Mangal Sen Chhabra versus Samson William and others. With these submissions it was prayed that the plaintiffs suit be dismissed. Written Statement of defendants no.6 to 9

18. It was accepted by the defendants that the disputed house was purchased in the name of minor Vinay Chhabra, by his father, late Sardari Lal Chhabra by sale deed dated 12.1.1965 and after the death of Vinay Chhabra, defendant no.2&3 being the legal heirs of Vinay Chhabra, became the owners in possession of the disputed house. It was also alleged that in the year 1965 Smt. H. William was the tenant in the disputed house, and after her death, her sons defendant no.4&5 became tenants in the disputed house. It was further alleged that the declaratory decree passed in suit no. 28 of 1996 was null and void, which was not binding on defendant no.2&3. It was also alleged that regarding disputed house, in proceedings under section 21 of UP Act no. 13 of 1972, which was filed by Mangal Sen Chhabra against Smt. H. William and her legal heirs,was challenged in Civil Misc. Writ Petition no. 2387 of 1990 Smt. H. William versus First Additional District Judge Jhansi, which was decided by the High Court on

31.7.1995, in which, it was not accepted that a family partition took place in the year 1980 between the parties. It was also held that Mangal Sen Chhabra was not the owner in possession of the disputed house.

19. It was further averred that the plaintiff never remained the exclusive owner in possession of the disputed house, which was never given to the plaintiff, in the family partition that took place 8 between the plaintiff and his father Mangal Sen Chhabra. The decree passed in original suit no. 539 of 2000 Mangal Sen Chhabra versus Rajesh Chhabra, was a collusive decree, on the basis of which no right title and interest in the disputed house had devolved on the plaintiff and also, the defendants were not bound by the decree passed in that suit. It was further alleged that no affidavit was sworn in by late Vinay Chhabra in favour of Mangal Sen Chhabra in P.A. case no. 65 of 1986, and on the basis of the alleged affidavit, ownership rights in the disputed house had not devolved on the plaintiff and his predecessors. It was accepted by them that regarding the disputed house several legal sale deeds were executed on 15.5.2006, by defendant no.2&3 in favour of defendant no.1, 6,7,8 & 9. With these submissions, it was prayed that the plaintiff's suit be dismissed.

20. On the basis of the pleadings of the parties, the following issues were framed by the trial court:- (i) Whether on the basis of grounds mentioned in the plaint the agreement to sell dated 20.4.2005 and four sale deeds dated

15.5.2006 were liable to be declared null and void? (ii) Whether the plaintiff was owner in possession of bungalow no. 329,Jhokan Bagh, Jhansi on the basis of grounds mentioned in the plaint? (iii) Whether the suit was undervalued and the court fee paid was insufficient? (iv) Whether the suit was barred by sections 34, 38 and 41(h) of the Specific Relief Act? (v) Whether the proceedings of the suit was liable to be stayed under section 10 of CPC as alleged in para 34 of WS 133A –1 ? 9 (vi)Whether the plaintiff was entitled to any relief, if any? O.S.No 365 of 2006

21. This suit was filed by the plaintiff with almost the same averments that were made in O.S. no.129 of 2005 by him. It was averred by the plaintiff that previously he had filed O.S. no. 129 of 2005 for getting declared the agreement to sell dated 20.4.2005, executed by the legal heirs of late Vinay Chhabra, in favour of defendant no.1, null and void, but, subsequently the legal heirs of late Vinay Chhabra, had executed 4 sale deeds on 15.05.2006 registered on 20.7.2006 in favour of defendant no.2,3,4 & 5, which were null and void.

22. It was also averred that previously in SCC Revision No. 67 of 2003 Rajesh Chhabra versus Samson William, the plaintiff was held to be the owner and landlord of the disputed house. The plaintiff sought the following reliefs:- (i) by declaratory decree granted in favour of the plaintiff against the defendants, the registered sale deeds executed by Smt. Savita Chhabra and Rishav Chhabra in favour of defendant no.1,2,3,4 & 5 executed on 15.05.2006 registered on 20.7.2006, regarding the disputed house, be declared null and void. (ii) by decree of permanent injunction granted in favour of the plaintiff against the defendants, the defendants be restrained from interfering in the peaceful possession and vested rights as landlord, in disputed house no. 329, new no. 1358,Jhokan Bagh,Jhansi. Written Statement of defendants

23. It was accepted by the defendants that the disputed house was 10 purchased wayback in the year 1965 by Sardari Lal, in the name of his son Vinay Chhabra, and after the death of Vinay Chhabra on

24.11.1987, the ownership of the house devolved on his legal heirs, his wife Smt.Savita Chhabra and son Rishav Chhabra. It was also accepted that in the disputed house Smt. H. William was a tenant and after her death, her legal heirs became tenant's in the disputed house. It was also alleged that against the decision dated 23.12.2005 in SCC Revision No. 67 of 2003 Rajesh Chhabra and another versus Samson William and others, passed by the court of First Additional District Judge Jhansi, Writ Petition had been filed in the High Court, which was pending for disposal. It was also accepted that through 4 sale deeds dated 20.7.2006, the defendants purchased the disputed house and were in possession of the disputed house.

24. It was also averred by the defendants that the plaintiff never remained the owner in possession of the disputed house.Also, Smt. H. William never remained tenant of plaintiff or his father Mangal Sen Chhabra. It was also averred that after the death of Smt. H. William, her sons Samson William and Morris William never remained tenant of Mangal Sen Chhabra and Rajesh Chhabra, and Mangal Sen Chhabra and Rajesh Chhabra were neither accepted as landlords by Morris William and Samson William nor any rent was paid by them, to Rajesh Chhabra and Mangal Sen Chhabra. It was further alleged that the plaintiff was not in possession of the disputed house, instead, the defendants were the owner in possession. The plaintiff had not claimed the relief of possession, hence plaintiff's suit was barred by section 34, 38 and 41(h) of the Specific Relief Act. The plaintiff had not claimed the relief of cancellation of the sale deeds dated

20.7.2006 as such, by declaratory decree the above sale deeds cannot be cancelled. Since, the plaintiff was not in possession of the disputed house as such, the relief of permanent injunction was barred by section 38 of the Specific Relief Act. It was also alleged that on 11

19.4.2005, the alleged tenants Samson William and Morris William, handed over the possession of the tenanted accommodation to Smt.Savita Chhabra and Rishav Chhabra, and till 19.7.2006, Savita Chhabra and Rishav Chhabra remained the owner in possession of the disputed house and subsequently, on 20.7.2006, the disputed house was sold through four sale deeds to the defendants, and now the defendants were in possession of the disputed house. With these submissions, it was prayed that the plaintiff 's suit be dismissed.

25. On the basis of the pleadings of the parties, the following issues were framed, in this suit:- (i) Whether the plaintiff was owner in possession of suit property? (ii)Whether the sale deeds executed on 15.05.2006 registered on

20.7.2006 by Smt. Savita Chhabra and Rishav Chhabra in favour of defendant no.1 Radhey Lal Jeswani, defendant no.2 Sanjay Agarwal, defendant no.3 Smt. Hema Agarwal, defendant no.4 Sunil Kumar, and defendant no.5 Mahendra Kumar, were liable to be declared null, void and ineffective on the basis of grounds mentioned in the plaint? (iii)Whether any cause of action arose to the plaintiff against the defendants? (iv)Whether the suit was undervalued and the court fee paid was insufficient? (v)Whether the suit was barred by sections 34, 38 and 41(h) of the Specific Relief Act? (vi)To what relief, if any, the plaintiff was entitled to?

26. The trial court by order dated 3.3.2008, consolidated both the above suits and for the purpose of evidence, O.S. no.129 of 2005 was made leading case, in which evidence was recorded. 12

27. In oral evidence, the plaintiff Rajesh Chhabra examined himself as PW-1 and his father, Mangal Sen Chhabra as PW-2. The defendants examined Sanjay Agarwal as DW-1.

28. In documentary evidence, the plaintiff filed copy of plaint in O.S. no. 28 of 1996, certified copy of ex-parte judgment dated 31.3.1999 in the above suit, copy of order in Miscellaneous Case no. 125 of 1999 dated 27.7.2001, copy of memo of appeal in Miscellaneous Civil Appeal No. 66 of 2001, order dated 30.7.2004, copy of judgment dated 17.8.2002 in O.S. no. 539 of 2000 Mangal Sen Chhabra versus Rajesh Chhabra, certified copy of affidavit of Vinay Chhabra in P.A.case no. 65 of 1986, certified copy of agreement to sell dated 20.4.2005 executed by Smt. Savita Chhabra and Rishav Chhabra in favour of Radhey Lal Jeswani, defendant no.1, copy of Miscellaneous Case no.115 of 1990 under section 39 of Guardians and Wards Act by Smt.Savita Chhabra, certified copy of the statement of Balram Chhabra in SCC suit no.118 of 1996, certified copy of order dated 27.10.2005 in P.A.case no.8 of 2002 Rajesh Chhabra versus Samson William and others, judgment in SCCR no. 67 of 2003 Rajesh Chhabra and another versus Samson William and others, certified copy of sale deed dated 12.1.1965 regarding the suit property purchased in the name of Vinay Chhabra, memo of appeal in RCA No. 22 of 2007 Rajesh Chhabra and another versus Samson William and others, certified copy of order dated 10.9.2007 in O.S. no.129 of 2005, certified copy of 4 sale deeds dated 15.5.2006, photocopy of plaint of O.S. no.301 of 2006 Rishav Chhabra versus Mangal Sen Chhabra and others dated 29.07.2006 and photocopy of order dated 20.04.2010 passed by the High Court in Writ A no.20677 of 2006 Rishav Chhabra and another versus Rajesh Chhabra and others.

29. The defendants filed in documentary evidence, receipt of house 13 tax in the name of Sanjay and Smt.Hema, receipt of house tax in the name of Sunil Kumar and Mahendra Kumar, photocopy of electricity bill, photographs of the disputed property, copy of judgment dated

11.5.2007 in P.A. case no.8 of 2002 Rajesh Chhabra versus Samson William, certified copy of sale deed dated 15.5.2006, executed by defendant no.2 & 3 in favour of defendant no.1, certified copy of sale deeds dated 15.5.2006 executed by defendant no.2 & 3 in favour of Sanjay Agarwal, his wife Smt.Hema Agarwal, Sunil and Mahendra Kumar, photostat copy of judgment of SCC suit no.118 of 1996, copy of judgment in Writ petition no. 2387 of 1990, copy of order passed in Writ A no. 20677 of 2006, certified copy of sale deeds dated

15.5.2006 and certified copy of judgment in P.A. case no.8 of 2002 Rajesh Chhabra versus Samson William. Findings of the trial court • Issue no.1 in O.S.no.129 of 2005 and Issue no.2 in O.S. no. 365 of 2006

30. Both the issues were decided jointly. The trial court came to the conclusion that the findings in P.A. cases could not be held binding because, these cases were decided by the court of Prescribed Authority under UP Act no. 13 of 1972, which was a court of limited jurisdiction. The trial court came to the conclusion that the finding recorded in these cases would not act as res-judicata, on a title suit, decided by a regular civil court.

31. The trial court noted that in O.S. no. 28 of 1996, which was filed by the legal heirs of late Sardari Lal, the legal heirs of late Vinay Chhabra, who died in an accident on 24.11.1987, namely Rishav Chhabra and Savita Chhabra were impleaded as defendant no.6 & 7, who had started claiming ownership in the disputed property, as such, a declaration was sought by Mangal Sen Chhabra, regarding his ownership and possession of the disputed property. The trial court 14 also noted that when the above suit was filed, defendant no.3 Rishav Chhabra was only eight years old, who was minor, the service on defendants was effected by publication in newspaper, when none appeared, one Advocate Bharat Jain, was appointed as guardian- ad- litem of the minor defendant, but he did not take any step to safeguard the interest of the minor and ultimately, the suit was proceeded ex-parte against minor on 28.10.1997. The trial court noted that the above suit was decreed ex-parte on 31.3.1999, in which the plaintiff was declared to be the exclusive owner in possession of house no. 329, situated in Civil Lines,Jhansi and it was also declared that, the defendants do not have any right or share therein.

32. The trial court also noted that the defendant no. 2 & 3, after becoming aware that suit no. 28 of 1996 was decreed ex-parte against them, had moved an application under Order 9 Rule 13 CPC, in which a plea was raised by them, that the ex-parte decree was collusive, which was against the interest of the minor, because no service was effected on the defendants, the Advocate had not safeguarded the interests of the minor. The trial court noted that the restoration application was dismissed by the court of Civil Judge(Senior Division), Jhansi by order dated 27.7.2001, against which MCA no. 66 of 2001 was filed, which was also dismissed in default on 30.7 2004.

33. The trial court concluded that since minor defendant no.3 was not properly represented in O.S. no. 28 of 1996, the decree passed in that suit was fraudulent and collusive, which was not binding on defendant no.3 and further, it would not operate as res-judicata. The trial court also concluded that there was no necessity on the part of minor defendant, to file a separate suit, on attaining majority, for challenging the fraudulent and collusive decree passed in the above suit. It was also concluded by the trial court that, since the plaintiff in 15 the above suit, was not having any subsisting ownership rights therefore, the decree passed in the above suit required registration.

34. The trial court concluded that disputed house was purchased by late Sardari Lal in the name of minor Vinay Chhabra. It was also concluded that in the affidavit filed by Vinay Chhabra, there was no admission of ownership of the plaintiff 's father. The trial court also disbelieved the version of the plaintiff that, in the year 1980, family partition took place between the legal heirs of late Sardari Lal. The trial court also concluded that, the disputed house was not a joint Hindu family property. The trial court finally concluded that the plaintiff failed to prove that he was the exclusive owner in possession of the suit property and as such, both the issues, were decided in negative. • Issue no.2 in O.S. no.129 of 2005 and issue no.1 in O.S. no. 365 of 2005

35. Both these issues were decided jointly, by the trial court. The trial court concluded that the sale deeds and agreement to sell in question, could not be declared null and void, because it was mentioned in the deeds, that consideration was paid to the vendor's by the vendee's. • Issue no.3 & 4 in O.S. no. 365 of 2006

36. The trial court decided these issues in favour of the plaintiff by concluding that the plaintiff was having cause of action to file the suit. The trial court also concluded that the plaintiff had correctly valued the suit and the court fee paid was sufficient. • Issue no 4 in O.S. no. 129 of 2005 and issue no. 5 in O.S.no. 365 of 2006 16

37. The trial court decided both the issues jointly. The trial court concluded that since the plaintiff was out of possession of the disputed house, he should have claimed possession, but the plaintiff had only claimed declaration, without claiming possession, which was barred by section 34 and 41(h) of the Specific Relief Act. It was also held that in such circumstances, no injunction could be granted being barred by section 38 of the Specific Relief Act. • Issue no.6 in both the suits

38. The trial court decided both the issues jointly. It was held that the plaintiff failed to prove that partition took place in the year 1980, between his father and his uncles. Further, he could not prove his exclusive ownership over the suit property and since, admittedly he was out of possession of the suit property, the plaintiff was held not entitled to any relief in both the suits. With this reasoning, both the suits of the plaintiff were dismissed.

39. Aggrieved against the dismissal of both the above mentioned suits, the plaintiff – appellant has filed two separate First Appeals 60 of 2011 and 70 of 2011, before this Court.

40. Learned counsel for the plaintiff-appellant submitted that Vinay Chhabra was only eight years old, in the year 1965, when his father Sardari Lal had purchased the property in his name, out of the funds of the joint Hindu family. Learned counsel submitted that since Vinay Chhabra was minor at that time, he was not having any independent income, as such, the whole consideration of the sale deed, was paid by Sardari Lal. Learned counsel submitted that Sardari Lal died in the year 1973, leaving behind his seven sons. Sardari Lal also left substantial property of the joint Hindu family, which was subsequently, orally partitioned among his heirs ,in the year 1980. 17

41. Learned counsel further submitted that in the year 1980, Vinay Chhabra had attained majority, who was also a party to the above partition, which was also accepted by him, by filing his affidavit in a subsequent eviction case, filed against the tenants, by plaintiffs father. Learned counsel further submitted that on 24.11.1987, Vinay Chhabra died in an accident, leaving behind his wife Smt. Savita Chhabra and minor son Rishav Chhabra. Learned counsel submitted that during his lifetime, Vinay Chhabra never disputed the partition, but after his death, his legal heirs raised a dispute, as such, the plaintiffs father Mangal Sen Chhabra filed suit no. 28 of 1996, before the competent civil court, for the relief of declaration of the ownership and possession of the disputed house no. 329, in which the defendant no. 2 & 3 of O.S. no.129 of 2005, were also arrayed as defendants no. 6&7, that suit was decreed on 31.3.1999.

42. Learned counsel further submitted that in suit no. 28 of 1996, the issue of ownership and possession of disputed house no. 329, was directly in issue, which was decided in favour of the plaintiff 's father Mangal Sen Chhabra, as such, that issue cannot be re-agitated in a subsequent proceeding, between the parties or their successors. Learned counsel further submitted that even if, the ex-parte decree passed in the above suit was held to be collusive and illegal, even then, it would operate as res-judicata between the parties, but, the trial court has erred in not treating the above decree as binding, in the facts and circumstances of the case. Learned counsel further submitted that an application under Order 9 Rule 13 CPC was filed by the defendant no.2 & 3, for setting aside the ex-parte decree in suit no. 28 of 1996, which was dismissed on merits, against which a Miscellaneous Civil Appeal was also filed by the defendants, which was also dismissed in default, as such, the decree passed in suit no. 28 of 1996 has attained finality, which would operate as res-judicata, insofar, as the title and ownership of the disputed house was concerned. Learned counsel 18 further submitted that the above decree conclusively proved that the disputed house was property of joint Hindu family, regarding which an oral partition took place between the members of the joint Hindu family, which was accepted and acted upon by the members of the family and in accordance with the above partition, the disputed house came in the share of the plaintiffs father Mangal Sen Chhabra. Learned counsel further submitted that on the basis of subsequent partition, which took place between the plaintiff and his father, the plaintiff was the owner in possession of the disputed house.

43. Learned counsel further submitted that even if, it is assumed that, in suit no. 28 of 1996, guardian ad-litem, appointed by the court, failed to protect the interest of minor defendant, the defendant had the remedy of filing a suit, on attaining majority, to challenge the ex-parte decree passed in the above suit, and the minor defendant had availed that opportunity on attaining majority, by filing O.S. no.301 of 2006 Rishav Chhabra versus Mangal Sen Chhabra and others in the court of Civil Judge(Senior Division), Jhansi, which was dismissed in default on 7.12.2015 as such, the ex-parte decree passed in O.S. no. 28 of 1996, has attained finality, which cannot be challenged on any ground whatsoever and as such, the trial court could not have examined the ex-parte decree in O.S. no.28 of 1996, but the trial court exceeded its jurisdiction and went on to consider the legality of the decree passed in the above suit.

44. Learned counsel further submitted that the partition took place between the legal heirs of late Sardari Lal in the year 1980, which was accepted by all the heirs, otherwise, litigation would have ensued between the heirs. Learned counsel submitted that in the instant case, the dispute has not been raised by Vinay Chhabra, but by his legal heirs.

45. Learned counsel further submitted that when the house was 19 purchased in the year 1965, even at that time Smt. H. William was the tenant, and after her death, her two sons Samson William and Morris William, inherited the tenancy, who remained in possession of the tenanted accommodation till, it was purchased by defendants by sale deed dated 15.5.2006. Learned counsel submitted that since, the tenants were inducted by the predecessors of the plaintiff, they were bound to hand the vacant and physical possession of the tenanted accommodation to the plaintiff, as such, the possession of the defendants is illegal. Learned counsel further submitted that since the tenants were in possession of the disputed house, it will amount to constructive/legal possession of the plaintiff, as such, the trial court erred in concluding that the plaintiff was not in possession of the disputed house and the suit was barred by section 34, 38 and 41(h) of the Specific Relief Act. Learned counsel further submitted that it was not disputed by the parties that defendant no.4 & 5 in O.S. no. 129 of 2005 were tenants in the disputed house. With these submissions, it was prayed that both the appeals be allowed and consequently, both the suits of the plaintiff be decreed.

46. Per contra, learned counsel for defendant – respondents submitted that the plaintiff failed to prove that the disputed house was a joint Hindu family property. Learned counsel submitted that the disputed house was purchased for the benefit and in the name of minor Vinay Chhabra, as such, after his death, his heirs became owners in possession of the disputed house, and in this capacity, they had executed the sale deeds on 15.5.2006 in favour of the defendants, which were perfectly legal. Learned counsel further submitted that the ex-parte decree in suit no. 28 of 1996, was a fraudulent and collusive decree, in which notices on the defendants were sent on wrong address as such, they never became aware of the suit and as such, could not appear before the trial court. Further, the interest of minor Rishav Chhabra was not protected by the court, also the 20 guardian ad-litem appointed by the court, failed to protect the interest of the minor defendant, who was in collusion with the plaintiff of that suit as such, the decree passed in that suit was not binding on the minor, and the validity of the decree could be challenged, wherever, that decree was enforced against the minor defendant. Learned counsel further submitted that plaintiff failed to prove that the disputed house was the property of the joint Hindu family. The plaintiff also failed to prove that regarding the disputed property, a partition took place between the heirs of late Sardari Lal, as such, the disputed house never devolved upon the predecessor of plaintiff, as such, the plaintiff never acquired the ownership of that house, and in view of these facts, the plaintiff was not entitled to get any relief from the court regarding the disputed house. Learned counsel further submitted that in these facts and circumstances, the trial court had not committed any illegality in dismissing both the suits of the plaintiff.With these submissions, it was prayed that both the appeals are meritless and be dismissed.

47. I've heard the learned counsel of both the parties, perused the record and case laws submitted by them.

48. On the basis of the pleadings, evidence adduced in the suits and arguments of the learned counsel of the parties, the following issues arise for determination in these appeals:- (1)Whether the decree passed in O.S.no. 28 of 1996 operates as res-judicata, insofar, the title and possession of the disputed house is concerned? (2)Whether the decree passed in O.S.no. 28 of 1996, can be challenged, in these proceedings, on the ground that the decree is fraudulent,collusive and is against the interest of minor defendant, who was not properly 21 represented in that suit ? (3) What is the effect of O.S. no.301 of 2006 filed by the minor defendant Rishav Chhabra, on attaining majority, for declaring the ex-parte decree dated

31.03.1999 passed in O.S. no.28 of 1996 null and void, which was dismissed in default on 7.12.2015 ? (4)Whether the disputed house was one of the properties of the joint Hindu family of late Sardari Lal Chhabra, which was orally partitioned among his heirs in the year 1980, after the death of Sardari Lal Chhabra? (5)Whether the disputed house was the benami property of late Sardari Lal Chhabra? (6)Whether the decree passed in O.S.no. 28 of 1996 required registration? (7)Whether Samson William and Morris William are the tenants in the disputed house, who had inherited tenancy from their late mother Smt. H. William? (8)Whether the possession of the tenants, is to be considered as constructive/lawful possession of the plaintiff, insofar as the disputed house is concerned ? (9)Whether the court erred in declaring in O.S. No. 28 of 1996 Mangal Sen Chhabra the owner in possession of the disputed house, because prior to the filing of the suit, in the year 1995 itself, in the alleged family partition between him and his son Rajesh Chhabra, the disputed house had already devolved on his son Rajesh 22 Chhabra? (10)Whether the plaintiff 's suit is barred by section 34, 38 and 41(h) of the Specific Relief Act? (11)What relief the plaintiff is entitled to get? Pleadings of O.S.no. 28 of 1996, issues arising in that suit, findings recorded by the court ,while decreeing the suit ex-parte on 31.3.1999

49. The plaintiff Mangal Sen Chhabra had filed the above O.S. no.28 of 1996 with the averments that his father late Sardari Lal Chhabra had seven sons. In this suit the plaintiff had impleaded the legal heirs of deceased Vinay Chhabra as defendant no. 6 Rishav Chhabra and defendant no.7 Smt.Savita Chhabra. The plaintiff averred in that suit that during his lifetime, Sardari Lal had solemnised two marriages, from first marriage a son named Shyam and daughter named Shashi were born and from the second wife, plaintiff and defendants were born. Since the relations between plaintiff and Shyam were not cordial, as such Sardari Lal in the year 1962, willingly separated Shyam after giving him his share. In view of this, after the death of Sardari Lal, no property devolved on Shyam. The plaintiffs father Sardari Lal died on 5.8.1973, and after his death, the property which was purchased in different names, was in joint possession of the plaintiff and the defendants. The disputed bungalow no. 329 was purchased by Sardari Lal, during his lifetime in the name of defendant no. 6 's father Vinay Chhabra, who was minor at that time. According to plaintiff, after the death of Sardari Lal, a partition took place between the plaintiff and the defendant's in the month of January 1980, in which the disputed bungalow no. 329, including the tenants, came to the share of plaintiff and thereafter, the plaintiff realised the rent from the tenant Smt. H. William. The plaintiff 23 specifically averred that the partition was acted upon and as such, after the partition, all the defendants came into the possession of their respective properties, devolved in partition. The plaintiff also averred that regarding the disputed bungalow no. 329, a partition took place between him and his son Rajesh in the year 1995, in which the disputed bungalow was given by the plaintiff to his son Rajesh. The defendant no.6's father Vinay Chhabra died in an accident on

24.11.1987, leaving behind his legal heirs as defendant no.6 and 7. The plaintiff specifically pleaded that the defendant no.6 and 7 were well aware that the partition had been effected between the plaintiff and the defendants in the year 1980 but even then, the defendant no.6 and 7 began to assert their ownership rights in the disputed bungalow no. 329 on the basis of the alleged sale deed executed in favour of their predecessor Vinay Chhabra. The plaintiff also averred that regarding the disputed bungalow, the defendant no.6 and 7 had got published a public notice in the newspaper Dainik Jagran on

3.1.1996, then the plaintiff felt the need for obtaining declaration regarding the disputed property. The plaintiff had impleaded his brothers as defendant number 1 to 5 in the suit, because they were also parties to the partition. The plaintiff prayed that by decree of the court he be declared the sole owner in possession of disputed bungalow no. 329, civil lines, Jhansi and further, the defendants have got no right title interest in this bungalow.

50. In the above suit, summons were sent to the defendants and thereafter, publication was also effected in the newspaper but none of the defendants appeared, as such by order dated 15.5.1996 the proceedings of the suit were proceeded ex-parte against defendant no.1 to 5 & 7. The proceedings of the suit were proceeded ex-parte against minor defendant no.6 Rishav Chhabra on 28.10.1997. In support of his pleadings, the plaintiff produced the certified copy of the affidavit of Vinay Chhabra filed in P.A. case no. 65 of 1986, 24 Mangal Sen Chhabra versus H. William and the certified copy of order dated 18.4.1992 of the court of District Judge, Jhansi passed in Miscellaneous Case no. 115 of 1990 Smt. Savita Chhabra versus Ramjeet Chhabra. The plaintiff also filed his affidavit in oral evidence.

51. The trial court concluded that Vinay Chhabra had filed his affidavit in P.A. case no. 65 of 1986, Mangal Sen Chhabra versus H. William, in which he had accepted that the sale deed of disputed house no. 329, Jhokan Bagh, Jhansi was executed in his favour, but in partition, that property had devolved on his brother Mangal Sen Chhabra and as such, he had no right title and interest in that property. He acknowledged that Mangal Sen Chhabra was the sole owner of that property, who was entitled to realise the rent also. The trial court concluded that since the husband of defendant no.7 and the father of defendant no.6, had acknowledged in his lifetime, in the above affidavit, that the plaintiff was the sole owner of disputed house no. 329, as such the defendant no.6 and 7, who were the legal heirs of late Vinay Chhabra, had inherited the same right in the property, which devolved on Vinay Chhabra in that partition. The trial court also concluded that the declaration published by defendant no.7 in the newspaper, that she is entitled to realise the rent of disputed house no. 329, was without any legal right. The trial court also concluded that when the disputed property was purchased by Sardari Lal Chhabra, in the name of Vinay Chhabra, then at that time Vinay Chhabra was minor and after the death of Sardari Lal Chhabra, the properties left behind by him, came into the joint ownership of the plaintiff and the defendant's, regarding which a partition took place in the month of January 1980, in which the disputed house no. 329, civil lines Jhansi, came to the share and possession of the plaintiff along with the tenants, and thereafter, the plaintiff had also realised the rent from the tenants residing in that property. The trial court came to the 25 conclusion that since no contrary evidence had been adduced by the defendants as such, there was no other alternative, but to believe the evidence adduced by the plaintiff. On the above reasoning, the trial Court decreed the suit ex-parte in favour of the plaintiff against the defendants, by declaring that the plaintiff was the sole owner in possession of the disputed bungalow no. 329, civil lines, Jhansi in which the defendants had no right and share.

52. It is apparent that in O.S. no. 28 of 1996, the title and possession of the disputed house no. 329 was directly in issue between the parties to the suit, on which the trial court had recorded a definite finding that in the oral partition that took place in the year 1980, after the death of late Sardari Lal Chhabra, between the sons of Sardari Lal Chhabra, the disputed house had come to the share of the plaintiff, along with the tenants residing in that house, at that time. The trial court had declared the plaintiff Mangal Sen Chhabra to be the sole owner in possession of the disputed house no. 329 and had also declared that the defendants, had no right or share in the disputed house. Subsequent proceedings initiated by Smt.Savita Chhabra and Rishav Chhabra for setting aside the ex-parte decree dated

31.3.99 passed in O.S. no. 28 of 1996

53. It is also apparent that after the passing of the ex-parte decree in O.S. no. 28 of 1996, Savita Chhabra and Vinay Chhabra, instituted in the court of Civil Judge (Senior Division) Jhansi, Miscellaneous Case no. 125 of 1999 Savita Chhabra and another versus Mangal Sen Chhabra under Order 9 Rule 13 CPC, for setting aside the above ex- parte decree, on the ground that the summons in the suit were not duly served, they had no knowledge of that suit, the plaintiff had fraudulently got the suit decreed ex-parte against them, their address mentioned in the plaint was wrong since they resided in Allahabad, 26 they never received any summons. It was also averred by them that Rishav Chhabra was minor, his guardian ad-litem Bharat Jain, Advocate, had never contacted the minor defendant, who was in collusion with plaintiff Mangal Sen Chhabra.

54. Mangal Sen Chhabra objected to the above application by submitting that the applicants were fully aware of the proceedings of O.S. no. 28 of 1996 but they deliberately didn't appear in that suit. Bharat Jain, Advocate was duly appointed guardian ad litem by the court, who had duly protected the interest of the minor defendant and the application was time barred.

55. The trial court concluded that the application was time barred and further, there was no sufficient ground to recall the ex-parte decree, as such, the application under Order 9 Rule 13 CPC, was rejected vide order dated 27.7.2001.

56. The defendants Savita Chhabra and Rishav Chhabra carried the matter further, by challenging the above order dated 27.7.2001, by instituting Miscellaneous Civil Appeal no. 66 of 2001 Smt. Savita Chhabra vs. Mangal Sen Chhabra and others, which was dismissed for non prosecution on 30.7.2004 by the court of Additional District Judge/Special Judge SC/ST Act, Jhansi. The matter was not carried any further by the contesting defendants, as such, the decree dated

31.3.1999 passed in O.S. no. 28 of 1996, attained finality.

57. The Apex Court in the case of Baldev Singh vs. Surinder Mohan Sharma and others (2003) 1 SCC 34, held as under:- “13. It is now a well-settled principle of law that an ex-parte decree is as good as a contesting decree unless it is set aside. An ex-parte decree can be set aside by the court passing it or by an appellate court only at the instance of a person aggrieved thereby.” 27

58. The Apex Court in the case of R. Unnikrishnan and another vs. V.K.Mahanudevan and others (2014)4 SCC 434, while considering the applicability of the principle of res-judicata, held as under;- “19. It is trite that law favours finality to binding judicial decisions pronounced by courts that are competent to deal with the subject-matter. Public interest is against individuals being vexed twice over with the same kind of litigation. The binding character of the judgments pronounced by the courts of competent jurisdiction has always been treated as an essential part of the rule of law which is the basis of the administration of justice in this country. We may gainfully refer to the decision of the Constitution Bench of this Court in Daryao v. State of U.P. [AIR 1961 SC 1457] where the Court succinctly summed up the law in the following words: (AIR p. 1462, paras 9 & 11) “9. … It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. * * * 11. … The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis.”

that recently Rishav Chhabra had attained majority. Smt. H. William was the tenant of Vinay Chhabra, and after her death, defendant no.4&5 became tenants in the disputed house, who had handed over the possession of the tenanted accommodation to the defendant no.2&3, prior to the filing of the suit, as such, defendant no.2&3 were the owners in possession of the disputed house.

16. It was specifically denied that the disputed property, was the property of the joint Hindu family of Sardari Lal. It was also denied that a family partition took place in the year 1980 between the legal heirs of late Sardari Lal, in which the property devolved on Mangal Sen Chhabra. It was further alleged that in suit no. 28 of 1996, title of the disputed property could not have been adjudicated, as such, the decree passed in that suit was null and void, which was not binding 6 on defendant no.2&3, the decree was also not registered, as such,it had no legal effect. It was further alleged that the decree in suit no. 28 of 1996 was passed against minor defendant no.3, which was not for his benefit, as such, the defendant no.2&3, were not bound by the decree dated 31.3.1999.

17. It was further averred by them that the High Court in its order dated 31.7.1995 had not accepted plaintiff 's father Mangal Sen Chhabra, as the owner of the disputed house and due to this finding, Mangal Sen Chhabra's release application under section 21 of the UP Act no. 13 of 1972, was rejected. The High Court also did not accept in its above order, the alleged consent of the brothers. It was also alleged that the defendants were not bound by the decree passed in O.S. No. 539 of 2000 Mangal Sen Chhabra versus Rajesh Chhabra, by the court of Civil Judge(Jr Division), Jhansi because it was a collusive decree. Further, Mangal Sen Chhabra was not the owner of the disputed house as such, no question arises of Rajesh Chhabra being the owner of the disputed house . The alleged partition that took place in the year 1995, between Rajesh Chhabra and Mangal Sen Chhabra, was illegal and fraudulent, which was void. It was further averred that P.A. case no.8 of 2002 Rajesh Chhabra versus Samson William and others, under section 21 of the UP Act no. 13 of 1972, was pending. In P.A. case no. 65 of 1986, no affidavit was sworn by late Vinay Chhabra in favour of Mangal Sen Chhabra on 16.12.1986, the affidavit submitted by Mangal Sen Chhabra was fraudulent which was evident from the order dated 31.7.1995 passed by the High Court. The defendants accepted that agreement to sell dated

20.4.2005 was executed by defendant no.2&3 in favour of defendant no.1, for a consideration of ₹ 22 lakhs ,which was a void document, because the 2 Lacs, which was a valid document. It was denied that any sale deed regarding the disputed house was executed by them on 20.4.2005. It was further alleged that the plaintiff had no cause of action to file the present suit. The suit was 7 barred by section 34, 38 and 41(h) of the Specific Relief Act, the suit was undervalued and the court fees paid was insufficient, the plaintiff was bound by the decree dated 16.8.2003 passed by the court of JSCC,Jhansi in case no. 118 of 1996 Rajesh Chhabra and Mangal Sen Chhabra versus Samson William and others. With these submissions it was prayed that the plaintiffs suit be dismissed. Written Statement of defendants no.6 to 9

18. It was accepted by the defendants that the disputed house was purchased in the name of minor Vinay Chhabra, by his father, late Sardari Lal Chhabra by sale deed dated 12.1.1965 and after the death of Vinay Chhabra, defendant no.2&3 being the legal heirs of Vinay Chhabra, became the owners in possession of the disputed house. It was also alleged that in the year 1965 Smt. H. William was the tenant in the disputed house, and after her death, her sons defendant no.4&5 became tenants in the disputed house. It was further alleged that the declaratory decree passed in suit no. 28 of 1996 was null and void, which was not binding on defendant no.2&3. It was also alleged that regarding disputed house, in proceedings under section 21 of UP Act no. 13 of 1972, which was filed by Mangal Sen Chhabra against Smt. H. William and her legal heirs,was challenged in Civil Misc. Writ Petition no. 2387 of 1990 Smt. H. William versus First Additional District Judge Jhansi, which was decided by the High Court on

31.7.1995, in which, it was not accepted that a family partition took place in the year 1980 between the parties. It was also held that Mangal Sen Chhabra was not the owner in possession of the disputed house.

19. It was further averred that the plaintiff never remained the exclusive owner in possession of the disputed house, which was never given to the plaintiff, in the family partition that took place 8 between the plaintiff and his father Mangal Sen Chhabra. The decree passed in original suit no. 539 of 2000 Mangal Sen Chhabra versus Rajesh Chhabra, was a collusive decree, on the basis of which no right title and interest in the disputed house had devolved on the plaintiff and also, the defendants were not bound by the decree passed in that suit. It was further alleged that no affidavit was sworn in by late Vinay Chhabra in favour of Mangal Sen Chhabra in P.A. case no. 65 of 1986, and on the basis of the alleged affidavit, ownership rights in the disputed house had not devolved on the plaintiff and his predecessors. It was accepted by them that regarding the disputed house several legal sale deeds were executed on 15.5.2006, by defendant no.2&3 in favour of defendant no.1, 6,7,8 & 9. With these submissions, it was prayed that the plaintiff's suit be dismissed.

20. On the basis of the pleadings of the parties, the following issues were framed by the trial court:- (i) Whether on the basis of grounds mentioned in the plaint the agreement to sell dated 20.4.2005 and four sale deeds dated

15.5.2006 were liable to be declared null and void? (ii) Whether the plaintiff was owner in possession of bungalow no. 329,Jhokan Bagh, Jhansi on the basis of grounds mentioned in the plaint? (iii) Whether the suit was undervalued and the court fee paid was insufficient? (iv) Whether the suit was barred by sections 34, 38 and 41(h) of the Specific Relief Act? (v) Whether the proceedings of the suit was liable to be stayed under section 10 of CPC as alleged in para 34 of WS 133A –1 ? 9 (vi)Whether the plaintiff was entitled to any relief, if any? O.S.No 365 of 2006

21. This suit was filed by the plaintiff with almost the same averments that were made in O.S. no.129 of 2005 by him. It was averred by the plaintiff that previously he had filed O.S. no. 129 of 2005 for getting declared the agreement to sell dated 20.4.2005, executed by the legal heirs of late Vinay Chhabra, in favour of defendant no.1, null and void, but, subsequently the legal heirs of late Vinay Chhabra, had executed 4 sale deeds on 15.05.2006 registered on 20.7.2006 in favour of defendant no.2,3,4 & 5, which were null and void.

22. It was also averred that previously in SCC Revision No. 67 of 2003 Rajesh Chhabra versus Samson William, the plaintiff was held to be the owner and landlord of the disputed house. The plaintiff sought the following reliefs:- (i) by declaratory decree granted in favour of the plaintiff against the defendants, the registered sale deeds executed by Smt. Savita Chhabra and Rishav Chhabra in favour of defendant no.1,2,3,4 & 5 executed on 15.05.2006 registered on 20.7.2006, regarding the disputed house, be declared null and void. (ii) by decree of permanent injunction granted in favour of the plaintiff against the defendants, the defendants be restrained from interfering in the peaceful possession and vested rights as landlord, in disputed house no. 329, new no. 1358,Jhokan Bagh,Jhansi. Written Statement of defendants

23. It was accepted by the defendants that the disputed house was 10 purchased wayback in the year 1965 by Sardari Lal, in the name of his son Vinay Chhabra, and after the death of Vinay Chhabra on

24.11.1987, the ownership of the house devolved on his legal heirs, his wife Smt.Savita Chhabra and son Rishav Chhabra. It was also accepted that in the disputed house Smt. H. William was a tenant and after her death, her legal heirs became tenant's in the disputed house. It was also alleged that against the decision dated 23.12.2005 in SCC Revision No. 67 of 2003 Rajesh Chhabra and another versus Samson William and others, passed by the court of First Additional District Judge Jhansi, Writ Petition had been filed in the High Court, which was pending for disposal. It was also accepted that through 4 sale deeds dated 20.7.2006, the defendants purchased the disputed house and were in possession of the disputed house.

24. It was also averred by the defendants that the plaintiff never remained the owner in possession of the disputed house.Also, Smt. H. William never remained tenant of plaintiff or his father Mangal Sen Chhabra. It was also averred that after the death of Smt. H. William, her sons Samson William and Morris William never remained tenant of Mangal Sen Chhabra and Rajesh Chhabra, and Mangal Sen Chhabra and Rajesh Chhabra were neither accepted as landlords by Morris William and Samson William nor any rent was paid by them, to Rajesh Chhabra and Mangal Sen Chhabra. It was further alleged that the plaintiff was not in possession of the disputed house, instead, the defendants were the owner in possession. The plaintiff had not claimed the relief of possession, hence plaintiff's suit was barred by section 34, 38 and 41(h) of the Specific Relief Act. The plaintiff had not claimed the relief of cancellation of the sale deeds dated

20.7.2006 as such, by declaratory decree the above sale deeds cannot be cancelled. Since, the plaintiff was not in possession of the disputed house as such, the relief of permanent injunction was barred by section 38 of the Specific Relief Act. It was also alleged that on 11

19.4.2005, the alleged tenants Samson William and Morris William, handed over the possession of the tenanted accommodation to Smt.Savita Chhabra and Rishav Chhabra, and till 19.7.2006, Savita Chhabra and Rishav Chhabra remained the owner in possession of the disputed house and subsequently, on 20.7.2006, the disputed house was sold through four sale deeds to the defendants, and now the defendants were in possession of the disputed house. With these submissions, it was prayed that the plaintiff 's suit be dismissed.

25. On the basis of the pleadings of the parties, the following issues were framed, in this suit:- (i) Whether the plaintiff was owner in possession of suit property? (ii)Whether the sale deeds executed on 15.05.2006 registered on

20.7.2006 by Smt. Savita Chhabra and Rishav Chhabra in favour of defendant no.1 Radhey Lal Jeswani, defendant no.2 Sanjay Agarwal, defendant no.3 Smt. Hema Agarwal, defendant no.4 Sunil Kumar, and defendant no.5 Mahendra Kumar, were liable to be declared null, void and ineffective on the basis of grounds mentioned in the plaint? (iii)Whether any cause of action arose to the plaintiff against the defendants? (iv)Whether the suit was undervalued and the court fee paid was insufficient? (v)Whether the suit was barred by sections 34, 38 and 41(h) of the Specific Relief Act? (vi)To what relief, if any, the plaintiff was entitled to?

26. The trial court by order dated 3.3.2008, consolidated both the above suits and for the purpose of evidence, O.S. no.129 of 2005 was made leading case, in which evidence was recorded. 12

27. In oral evidence, the plaintiff Rajesh Chhabra examined himself as PW-1 and his father, Mangal Sen Chhabra as PW-2. The defendants examined Sanjay Agarwal as DW-1.

28. In documentary evidence, the plaintiff filed copy of plaint in O.S. no. 28 of 1996, certified copy of ex-parte judgment dated 31.3.1999 in the above suit, copy of order in Miscellaneous Case no. 125 of 1999 dated 27.7.2001, copy of memo of appeal in Miscellaneous Civil Appeal No. 66 of 2001, order dated 30.7.2004, copy of judgment dated 17.8.2002 in O.S. no. 539 of 2000 Mangal Sen Chhabra versus Rajesh Chhabra, certified copy of affidavit of Vinay Chhabra in P.A.case no. 65 of 1986, certified copy of agreement to sell dated 20.4.2005 executed by Smt. Savita Chhabra and Rishav Chhabra in favour of Radhey Lal Jeswani, defendant no.1, copy of Miscellaneous Case no.115 of 1990 under section 39 of Guardians and Wards Act by Smt.Savita Chhabra, certified copy of the statement of Balram Chhabra in SCC suit no.118 of 1996, certified copy of order dated 27.10.2005 in P.A.case no.8 of 2002 Rajesh Chhabra versus Samson William and others, judgment in SCCR no. 67 of 2003 Rajesh Chhabra and another versus Samson William and others, certified copy of sale deed dated 12.1.1965 regarding the suit property purchased in the name of Vinay Chhabra, memo of appeal in RCA No. 22 of 2007 Rajesh Chhabra and another versus Samson William and others, certified copy of order dated 10.9.2007 in O.S. no.129 of 2005, certified copy of 4 sale deeds dated 15.5.2006, photocopy of plaint of O.S. no.301 of 2006 Rishav Chhabra versus Mangal Sen Chhabra and others dated 29.07.2006 and photocopy of order dated 20.04.2010 passed by the High Court in Writ A no.20677 of 2006 Rishav Chhabra and another versus Rajesh Chhabra and others.

29. The defendants filed in documentary evidence, receipt of house 13 tax in the name of Sanjay and Smt.Hema, receipt of house tax in the name of Sunil Kumar and Mahendra Kumar, photocopy of electricity bill, photographs of the disputed property, copy of judgment dated

11.5.2007 in P.A. case no.8 of 2002 Rajesh Chhabra versus Samson William, certified copy of sale deed dated 15.5.2006, executed by defendant no.2 & 3 in favour of defendant no.1, certified copy of sale deeds dated 15.5.2006 executed by defendant no.2 & 3 in favour of Sanjay Agarwal, his wife Smt.Hema Agarwal, Sunil and Mahendra Kumar, photostat copy of judgment of SCC suit no.118 of 1996, copy of judgment in Writ petition no. 2387 of 1990, copy of order passed in Writ A no. 20677 of 2006, certified copy of sale deeds dated

15.5.2006 and certified copy of judgment in P.A. case no.8 of 2002 Rajesh Chhabra versus Samson William. Findings of the trial court • Issue no.1 in O.S.no.129 of 2005 and Issue no.2 in O.S. no. 365 of 2006

30. Both the issues were decided jointly. The trial court came to the conclusion that the findings in P.A. cases could not be held binding because, these cases were decided by the court of Prescribed Authority under UP Act no. 13 of 1972, which was a court of limited jurisdiction. The trial court came to the conclusion that the finding recorded in these cases would not act as res-judicata, on a title suit, decided by a regular civil court.

31. The trial court noted that in O.S. no. 28 of 1996, which was filed by the legal heirs of late Sardari Lal, the legal heirs of late Vinay Chhabra, who died in an accident on 24.11.1987, namely Rishav Chhabra and Savita Chhabra were impleaded as defendant no.6 & 7, who had started claiming ownership in the disputed property, as such, a declaration was sought by Mangal Sen Chhabra, regarding his ownership and possession of the disputed property. The trial court 14 also noted that when the above suit was filed, defendant no.3 Rishav Chhabra was only eight years old, who was minor, the service on defendants was effected by publication in newspaper, when none appeared, one Advocate Bharat Jain, was appointed as guardian- ad- litem of the minor defendant, but he did not take any step to safeguard the interest of the minor and ultimately, the suit was proceeded ex-parte against minor on 28.10.1997. The trial court noted that the above suit was decreed ex-parte on 31.3.1999, in which the plaintiff was declared to be the exclusive owner in possession of house no. 329, situated in Civil Lines,Jhansi and it was also declared that, the defendants do not have any right or share therein.

32. The trial court also noted that the defendant no. 2 & 3, after becoming aware that suit no. 28 of 1996 was decreed ex-parte against them, had moved an application under Order 9 Rule 13 CPC, in which a plea was raised by them, that the ex-parte decree was collusive, which was against the interest of the minor, because no service was effected on the defendants, the Advocate had not safeguarded the interests of the minor. The trial court noted that the restoration application was dismissed by the court of Civil Judge(Senior Division), Jhansi by order dated 27.7.2001, against which MCA no. 66 of 2001 was filed, which was also dismissed in default on 30.7 2004.

33. The trial court concluded that since minor defendant no.3 was not properly represented in O.S. no. 28 of 1996, the decree passed in that suit was fraudulent and collusive, which was not binding on defendant no.3 and further, it would not operate as res-judicata. The trial court also concluded that there was no necessity on the part of minor defendant, to file a separate suit, on attaining majority, for challenging the fraudulent and collusive decree passed in the above suit. It was also concluded by the trial court that, since the plaintiff in 15 the above suit, was not having any subsisting ownership rights therefore, the decree passed in the above suit required registration.

34. The trial court concluded that disputed house was purchased by late Sardari Lal in the name of minor Vinay Chhabra. It was also concluded that in the affidavit filed by Vinay Chhabra, there was no admission of ownership of the plaintiff 's father. The trial court also disbelieved the version of the plaintiff that, in the year 1980, family partition took place between the legal heirs of late Sardari Lal. The trial court also concluded that, the disputed house was not a joint Hindu family property. The trial court finally concluded that the plaintiff failed to prove that he was the exclusive owner in possession of the suit property and as such, both the issues, were decided in negative. • Issue no.2 in O.S. no.129 of 2005 and issue no.1 in O.S. no. 365 of 2005

35. Both these issues were decided jointly, by the trial court. The trial court concluded that the sale deeds and agreement to sell in question, could not be declared null and void, because it was mentioned in the deeds, that consideration was paid to the vendor's by the vendee's. • Issue no.3 & 4 in O.S. no. 365 of 2006

36. The trial court decided these issues in favour of the plaintiff by concluding that the plaintiff was having cause of action to file the suit. The trial court also concluded that the plaintiff had correctly valued the suit and the court fee paid was sufficient. • Issue no 4 in O.S. no. 129 of 2005 and issue no. 5 in O.S.no. 365 of 2006 16

37. The trial court decided both the issues jointly. The trial court concluded that since the plaintiff was out of possession of the disputed house, he should have claimed possession, but the plaintiff had only claimed declaration, without claiming possession, which was barred by section 34 and 41(h) of the Specific Relief Act. It was also held that in such circumstances, no injunction could be granted being barred by section 38 of the Specific Relief Act. • Issue no.6 in both the suits

38. The trial court decided both the issues jointly. It was held that the plaintiff failed to prove that partition took place in the year 1980, between his father and his uncles. Further, he could not prove his exclusive ownership over the suit property and since, admittedly he was out of possession of the suit property, the plaintiff was held not entitled to any relief in both the suits. With this reasoning, both the suits of the plaintiff were dismissed.

39. Aggrieved against the dismissal of both the above mentioned suits, the plaintiff – appellant has filed two separate First Appeals 60 of 2011 and 70 of 2011, before this Court.

40. Learned counsel for the plaintiff-appellant submitted that Vinay Chhabra was only eight years old, in the year 1965, when his father Sardari Lal had purchased the property in his name, out of the funds of the joint Hindu family. Learned counsel submitted that since Vinay Chhabra was minor at that time, he was not having any independent income, as such, the whole consideration of the sale deed, was paid by Sardari Lal. Learned counsel submitted that Sardari Lal died in the year 1973, leaving behind his seven sons. Sardari Lal also left substantial property of the joint Hindu family, which was subsequently, orally partitioned among his heirs ,in the year 1980. 17

41. Learned counsel further submitted that in the year 1980, Vinay Chhabra had attained majority, who was also a party to the above partition, which was also accepted by him, by filing his affidavit in a subsequent eviction case, filed against the tenants, by plaintiffs father. Learned counsel further submitted that on 24.11.1987, Vinay Chhabra died in an accident, leaving behind his wife Smt. Savita Chhabra and minor son Rishav Chhabra. Learned counsel submitted that during his lifetime, Vinay Chhabra never disputed the partition, but after his death, his legal heirs raised a dispute, as such, the plaintiffs father Mangal Sen Chhabra filed suit no. 28 of 1996, before the competent civil court, for the relief of declaration of the ownership and possession of the disputed house no. 329, in which the defendant no. 2 & 3 of O.S. no.129 of 2005, were also arrayed as defendants no. 6&7, that suit was decreed on 31.3.1999.

42. Learned counsel further submitted that in suit no. 28 of 1996, the issue of ownership and possession of disputed house no. 329, was directly in issue, which was decided in favour of the plaintiff 's father Mangal Sen Chhabra, as such, that issue cannot be re-agitated in a subsequent proceeding, between the parties or their successors. Learned counsel further submitted that even if, the ex-parte decree passed in the above suit was held to be collusive and illegal, even then, it would operate as res-judicata between the parties, but, the trial court has erred in not treating the above decree as binding, in the facts and circumstances of the case. Learned counsel further submitted that an application under Order 9 Rule 13 CPC was filed by the defendant no.2 & 3, for setting aside the ex-parte decree in suit no. 28 of 1996, which was dismissed on merits, against which a Miscellaneous Civil Appeal was also filed by the defendants, which was also dismissed in default, as such, the decree passed in suit no. 28 of 1996 has attained finality, which would operate as res-judicata, insofar, as the title and ownership of the disputed house was concerned. Learned counsel 18 further submitted that the above decree conclusively proved that the disputed house was property of joint Hindu family, regarding which an oral partition took place between the members of the joint Hindu family, which was accepted and acted upon by the members of the family and in accordance with the above partition, the disputed house came in the share of the plaintiffs father Mangal Sen Chhabra. Learned counsel further submitted that on the basis of subsequent partition, which took place between the plaintiff and his father, the plaintiff was the owner in possession of the disputed house.

43. Learned counsel further submitted that even if, it is assumed that, in suit no. 28 of 1996, guardian ad-litem, appointed by the court, failed to protect the interest of minor defendant, the defendant had the remedy of filing a suit, on attaining majority, to challenge the ex-parte decree passed in the above suit, and the minor defendant had availed that opportunity on attaining majority, by filing O.S. no.301 of 2006 Rishav Chhabra versus Mangal Sen Chhabra and others in the court of Civil Judge(Senior Division), Jhansi, which was dismissed in default on 7.12.2015 as such, the ex-parte decree passed in O.S. no. 28 of 1996, has attained finality, which cannot be challenged on any ground whatsoever and as such, the trial court could not have examined the ex-parte decree in O.S. no.28 of 1996, but the trial court exceeded its jurisdiction and went on to consider the legality of the decree passed in the above suit.

44. Learned counsel further submitted that the partition took place between the legal heirs of late Sardari Lal in the year 1980, which was accepted by all the heirs, otherwise, litigation would have ensued between the heirs. Learned counsel submitted that in the instant case, the dispute has not been raised by Vinay Chhabra, but by his legal heirs.

45. Learned counsel further submitted that when the house was 19 purchased in the year 1965, even at that time Smt. H. William was the tenant, and after her death, her two sons Samson William and Morris William, inherited the tenancy, who remained in possession of the tenanted accommodation till, it was purchased by defendants by sale deed dated 15.5.2006. Learned counsel submitted that since, the tenants were inducted by the predecessors of the plaintiff, they were bound to hand the vacant and physical possession of the tenanted accommodation to the plaintiff, as such, the possession of the defendants is illegal. Learned counsel further submitted that since the tenants were in possession of the disputed house, it will amount to constructive/legal possession of the plaintiff, as such, the trial court erred in concluding that the plaintiff was not in possession of the disputed house and the suit was barred by section 34, 38 and 41(h) of the Specific Relief Act. Learned counsel further submitted that it was not disputed by the parties that defendant no.4 & 5 in O.S. no. 129 of 2005 were tenants in the disputed house. With these submissions, it was prayed that both the appeals be allowed and consequently, both the suits of the plaintiff be decreed.

46. Per contra, learned counsel for defendant – respondents submitted that the plaintiff failed to prove that the disputed house was a joint Hindu family property. Learned counsel submitted that the disputed house was purchased for the benefit and in the name of minor Vinay Chhabra, as such, after his death, his heirs became owners in possession of the disputed house, and in this capacity, they had executed the sale deeds on 15.5.2006 in favour of the defendants, which were perfectly legal. Learned counsel further submitted that the ex-parte decree in suit no. 28 of 1996, was a fraudulent and collusive decree, in which notices on the defendants were sent on wrong address as such, they never became aware of the suit and as such, could not appear before the trial court. Further, the interest of minor Rishav Chhabra was not protected by the court, also the 20 guardian ad-litem appointed by the court, failed to protect the interest of the minor defendant, who was in collusion with the plaintiff of that suit as such, the decree passed in that suit was not binding on the minor, and the validity of the decree could be challenged, wherever, that decree was enforced against the minor defendant. Learned counsel further submitted that plaintiff failed to prove that the disputed house was the property of the joint Hindu family. The plaintiff also failed to prove that regarding the disputed property, a partition took place between the heirs of late Sardari Lal, as such, the disputed house never devolved upon the predecessor of plaintiff, as such, the plaintiff never acquired the ownership of that house, and in view of these facts, the plaintiff was not entitled to get any relief from the court regarding the disputed house. Learned counsel further submitted that in these facts and circumstances, the trial court had not committed any illegality in dismissing both the suits of the plaintiff.With these submissions, it was prayed that both the appeals are meritless and be dismissed.

47. I've heard the learned counsel of both the parties, perused the record and case laws submitted by them.

48. On the basis of the pleadings, evidence adduced in the suits and arguments of the learned counsel of the parties, the following issues arise for determination in these appeals:- (1)Whether the decree passed in O.S.no. 28 of 1996 operates as res-judicata, insofar, the title and possession of the disputed house is concerned? (2)Whether the decree passed in O.S.no. 28 of 1996, can be challenged, in these proceedings, on the ground that the decree is fraudulent,collusive and is against the interest of minor defendant, who was not properly 21 represented in that suit ? (3) What is the effect of O.S. no.301 of 2006 filed by the minor defendant Rishav Chhabra, on attaining majority, for declaring the ex-parte decree dated

31.03.1999 passed in O.S. no.28 of 1996 null and void, which was dismissed in default on 7.12.2015 ? (4)Whether the disputed house was one of the properties of the joint Hindu family of late Sardari Lal Chhabra, which was orally partitioned among his heirs in the year 1980, after the death of Sardari Lal Chhabra? (5)Whether the disputed house was the benami property of late Sardari Lal Chhabra? (6)Whether the decree passed in O.S.no. 28 of 1996 required registration? (7)Whether Samson William and Morris William are the tenants in the disputed house, who had inherited tenancy from their late mother Smt. H. William? (8)Whether the possession of the tenants, is to be considered as constructive/lawful possession of the plaintiff, insofar as the disputed house is concerned ? (9)Whether the court erred in declaring in O.S. No. 28 of 1996 Mangal Sen Chhabra the owner in possession of the disputed house, because prior to the filing of the suit, in the year 1995 itself, in the alleged family partition between him and his son Rajesh Chhabra, the disputed house had already devolved on his son Rajesh 22 Chhabra? (10)Whether the plaintiff 's suit is barred by section 34, 38 and 41(h) of the Specific Relief Act? (11)What relief the plaintiff is entitled to get? Pleadings of O.S.no. 28 of 1996, issues arising in that suit, findings recorded by the court ,while decreeing the suit ex-parte on 31.3.1999

49. The plaintiff Mangal Sen Chhabra had filed the above O.S. no.28 of 1996 with the averments that his father late Sardari Lal Chhabra had seven sons. In this suit the plaintiff had impleaded the legal heirs of deceased Vinay Chhabra as defendant no. 6 Rishav Chhabra and defendant no.7 Smt.Savita Chhabra. The plaintiff averred in that suit that during his lifetime, Sardari Lal had solemnised two marriages, from first marriage a son named Shyam and daughter named Shashi were born and from the second wife, plaintiff and defendants were born. Since the relations between plaintiff and Shyam were not cordial, as such Sardari Lal in the year 1962, willingly separated Shyam after giving him his share. In view of this, after the death of Sardari Lal, no property devolved on Shyam. The plaintiffs father Sardari Lal died on 5.8.1973, and after his death, the property which was purchased in different names, was in joint possession of the plaintiff and the defendants. The disputed bungalow no. 329 was purchased by Sardari Lal, during his lifetime in the name of defendant no. 6 's father Vinay Chhabra, who was minor at that time. According to plaintiff, after the death of Sardari Lal, a partition took place between the plaintiff and the defendant's in the month of January 1980, in which the disputed bungalow no. 329, including the tenants, came to the share of plaintiff and thereafter, the plaintiff realised the rent from the tenant Smt. H. William. The plaintiff 23 specifically averred that the partition was acted upon and as such, after the partition, all the defendants came into the possession of their respective properties, devolved in partition. The plaintiff also averred that regarding the disputed bungalow no. 329, a partition took place between him and his son Rajesh in the year 1995, in which the disputed bungalow was given by the plaintiff to his son Rajesh. The defendant no.6's father Vinay Chhabra died in an accident on

24.11.1987, leaving behind his legal heirs as defendant no.6 and 7. The plaintiff specifically pleaded that the defendant no.6 and 7 were well aware that the partition had been effected between the plaintiff and the defendants in the year 1980 but even then, the defendant no.6 and 7 began to assert their ownership rights in the disputed bungalow no. 329 on the basis of the alleged sale deed executed in favour of their predecessor Vinay Chhabra. The plaintiff also averred that regarding the disputed bungalow, the defendant no.6 and 7 had got published a public notice in the newspaper Dainik Jagran on

3.1.1996, then the plaintiff felt the need for obtaining declaration regarding the disputed property. The plaintiff had impleaded his brothers as defendant number 1 to 5 in the suit, because they were also parties to the partition. The plaintiff prayed that by decree of the court he be declared the sole owner in possession of disputed bungalow no. 329, civil lines, Jhansi and further, the defendants have got no right title interest in this bungalow.

50. In the above suit, summons were sent to the defendants and thereafter, publication was also effected in the newspaper but none of the defendants appeared, as such by order dated 15.5.1996 the proceedings of the suit were proceeded ex-parte against defendant no.1 to 5 & 7. The proceedings of the suit were proceeded ex-parte against minor defendant no.6 Rishav Chhabra on 28.10.1997. In support of his pleadings, the plaintiff produced the certified copy of the affidavit of Vinay Chhabra filed in P.A. case no. 65 of 1986, 24 Mangal Sen Chhabra versus H. William and the certified copy of order dated 18.4.1992 of the court of District Judge, Jhansi passed in Miscellaneous Case no. 115 of 1990 Smt. Savita Chhabra versus Ramjeet Chhabra. The plaintiff also filed his affidavit in oral evidence.

51. The trial court concluded that Vinay Chhabra had filed his affidavit in P.A. case no. 65 of 1986, Mangal Sen Chhabra versus H. William, in which he had accepted that the sale deed of disputed house no. 329, Jhokan Bagh, Jhansi was executed in his favour, but in partition, that property had devolved on his brother Mangal Sen Chhabra and as such, he had no right title and interest in that property. He acknowledged that Mangal Sen Chhabra was the sole owner of that property, who was entitled to realise the rent also. The trial court concluded that since the husband of defendant no.7 and the father of defendant no.6, had acknowledged in his lifetime, in the above affidavit, that the plaintiff was the sole owner of disputed house no. 329, as such the defendant no.6 and 7, who were the legal heirs of late Vinay Chhabra, had inherited the same right in the property, which devolved on Vinay Chhabra in that partition. The trial court also concluded that the declaration published by defendant no.7 in the newspaper, that she is entitled to realise the rent of disputed house no. 329, was without any legal right. The trial court also concluded that when the disputed property was purchased by Sardari Lal Chhabra, in the name of Vinay Chhabra, then at that time Vinay Chhabra was minor and after the death of Sardari Lal Chhabra, the properties left behind by him, came into the joint ownership of the plaintiff and the defendant's, regarding which a partition took place in the month of January 1980, in which the disputed house no. 329, civil lines Jhansi, came to the share and possession of the plaintiff along with the tenants, and thereafter, the plaintiff had also realised the rent from the tenants residing in that property. The trial court came to the 25 conclusion that since no contrary evidence had been adduced by the defendants as such, there was no other alternative, but to believe the evidence adduced by the plaintiff. On the above reasoning, the trial Court decreed the suit ex-parte in favour of the plaintiff against the defendants, by declaring that the plaintiff was the sole owner in possession of the disputed bungalow no. 329, civil lines, Jhansi in which the defendants had no right and share.

52. It is apparent that in O.S. no. 28 of 1996, the title and possession of the disputed house no. 329 was directly in issue between the parties to the suit, on which the trial court had recorded a definite finding that in the oral partition that took place in the year 1980, after the death of late Sardari Lal Chhabra, between the sons of Sardari Lal Chhabra, the disputed house had come to the share of the plaintiff, along with the tenants residing in that house, at that time. The trial court had declared the plaintiff Mangal Sen Chhabra to be the sole owner in possession of the disputed house no. 329 and had also declared that the defendants, had no right or share in the disputed house. Subsequent proceedings initiated by Smt.Savita Chhabra and Rishav Chhabra for setting aside the ex-parte decree dated

31.3.99 passed in O.S. no. 28 of 1996

53. It is also apparent that after the passing of the ex-parte decree in O.S. no. 28 of 1996, Savita Chhabra and Vinay Chhabra, instituted in the court of Civil Judge (Senior Division) Jhansi, Miscellaneous Case no. 125 of 1999 Savita Chhabra and another versus Mangal Sen Chhabra under Order 9 Rule 13 CPC, for setting aside the above ex- parte decree, on the ground that the summons in the suit were not duly served, they had no knowledge of that suit, the plaintiff had fraudulently got the suit decreed ex-parte against them, their address mentioned in the plaint was wrong since they resided in Allahabad, 26 they never received any summons. It was also averred by them that Rishav Chhabra was minor, his guardian ad-litem Bharat Jain, Advocate, had never contacted the minor defendant, who was in collusion with plaintiff Mangal Sen Chhabra.

54. Mangal Sen Chhabra objected to the above application by submitting that the applicants were fully aware of the proceedings of O.S. no. 28 of 1996 but they deliberately didn't appear in that suit. Bharat Jain, Advocate was duly appointed guardian ad litem by the court, who had duly protected the interest of the minor defendant and the application was time barred.

55. The trial court concluded that the application was time barred and further, there was no sufficient ground to recall the ex-parte decree, as such, the application under Order 9 Rule 13 CPC, was rejected vide order dated 27.7.2001.

56. The defendants Savita Chhabra and Rishav Chhabra carried the matter further, by challenging the above order dated 27.7.2001, by instituting Miscellaneous Civil Appeal no. 66 of 2001 Smt. Savita Chhabra vs. Mangal Sen Chhabra and others, which was dismissed for non prosecution on 30.7.2004 by the court of Additional District Judge/Special Judge SC/ST Act, Jhansi. The matter was not carried any further by the contesting defendants, as such, the decree dated

31.3.1999 passed in O.S. no. 28 of 1996, attained finality.

57. The Apex Court in the case of Baldev Singh vs. Surinder Mohan Sharma and others (2003) 1 SCC 34, held as under:- “13. It is now a well-settled principle of law that an ex-parte decree is as good as a contesting decree unless it is set aside. An ex-parte decree can be set aside by the court passing it or by an appellate court only at the instance of a person aggrieved thereby.” 27

58. The Apex Court in the case of R. Unnikrishnan and another vs. V.K.Mahanudevan and others (2014)4 SCC 434, while considering the applicability of the principle of res-judicata, held as under;- “19. It is trite that law favours finality to binding judicial decisions pronounced by courts that are competent to deal with the subject-matter. Public interest is against individuals being vexed twice over with the same kind of litigation. The binding character of the judgments pronounced by the courts of competent jurisdiction has always been treated as an essential part of the rule of law which is the basis of the administration of justice in this country. We may gainfully refer to the decision of the Constitution Bench of this Court in Daryao v. State of U.P. [AIR 1961 SC 1457] where the Court succinctly summed up the law in the following words: (AIR p. 1462, paras 9 & 11) “9. … It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. * * * 11. … The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis.”