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2003 DIGILAW 1104 (DEL)

MAYA JETHANAND DARYANI v. AVTAR MOHAN SINGH

2003-11-07

MANMOHAN SARIN

body2003
( 1 ) BY this judgment IA Nos. 6043/2003, 7722/2003 and 7728/2003 moved by M/s. Mitsui and Company Ltd. (hereinafter referred to as the applicant , for short) are being decided. LA No. 6043/2003 is an application moved under Section 151, cpc by the applicant, filing objections to the order dated 17/07/2000, decreeing the suit and Order dated 25/10/2000, giving directions and appointing a Receiver for demarcation of Plot Nos. 28 and 28-A, prithviraj Road, New Delhi. Prayer is made for modification of the Order dated 25th october, 2002 and keeping its operation in abeyance, till decision of the application. IA no. 7728/2003 is an application moved under Order 1. Rule 10, CPC, by the applicant seeking impleadment in the suit already decided on 17/07/2000. The last IA No. 7722/2003 is an application moved by the applicant under Order XXI. Rules 97 and 101 read with Sections 47, 141 and 151, cpc, to declare the decree passed in the suit as null and void and to keep in abeyance the directions for demarcation. ( 2 ) BEFORE we consider the above applications on merits and the objections raised as to their maintainability, it would be necessary to notice the facts, essential and relevant for decision of these applications. ( 3 ) THE plaintiffs vide an agreement dated 16/09/1975, agreed to purchase from defendant No. 1. Smt. Avtar Mohan singh (widow of Bhai Mohan Singh), defendant no. 2 Dr. Parvinder Singh, defendant No. 3-Mr. Analjit Singh and defendant No, 4- bhai Manjit Singh, property No. 28, prithviraj Road, New Delhi. The defendant nos. 2-4 being her sons also joined as parties to the said Agreement. Upon the death of defendant No. 2, his legal heirs were also brought on record. It is the plaintiffs case that legal/symbolic possession of the entire property No. 28, Prithviraj Road, New Delhi was handed over to the plaintiffs predecessors in title in September, 1975 itself. Thereafter, the plaintiffs got the physical possession of the property from the tenant upon it vacating the premises. The requisite conveyance/sale deed was not executed on account of demand by L and DO for unearned increase and other disputes between the parties, remaining unresolved. Thereupon plaintiffs filed the present/above suit for specific performance of the Agreement to Sell. ( 4 ) THE suit remained pending for 14 years till the matter was settled between the parties. The requisite conveyance/sale deed was not executed on account of demand by L and DO for unearned increase and other disputes between the parties, remaining unresolved. Thereupon plaintiffs filed the present/above suit for specific performance of the Agreement to Sell. ( 4 ) THE suit remained pending for 14 years till the matter was settled between the parties. A compromise application being LA No. 6036/2000 under Order XXIII, Rule 3, CPC was filed. In terms of the compromise, the plaintiffs agreed to enhance the consideration from Rs. 12 lakhs to Rs. 40 lakhs. Part of the sale consideration was paid by the plaintiffs directly to the L and DO and the balance enhanced sale consideration was paid to the defendant No. 1-Smt. Avtar Mohan singh as the other defendants confirmed that they had no claim, right, title or interest in the suit property, 28, Prithviraj Road, new Delhi, following a family settlement. ( 5 ) THE compromise application also recorded that unearned increase or free-hold conversion charges for 1. 217 acres would be paid by the plaintiffs. Clauses 5, 6 and 7 of the compromise application are relevant for a decision on the pending applications and are reproduced for facility of reference : v. The parties agree that L and DO s unearned increase or free-hold conversion charges, will be paid by the plaintiffs. In other words, the unearned increase or freehold conversion charges for 1. 217 Acres, will be paid by the plaintiffs and L and DO charges, if any, for 28-A Prithviraj Road, (0. 771 Acres) will be paid by Df-4 Bhai Manjit Singh. Cost of Stamp Duty and Registration for 28, prithviraj Road shall be borne by plaintiff no. 4. vi. To remove any doubts, it is recorded that the plaintiffs shall have the north-eastern portion known as 28, Prithviraj Road, as a rectangle measuring 316 x 168 , which makes an area of 1. 217 Acres, and defendant no. 4 shall retain the balance area measuring 106 x 316 , on the south-western portion known as 28-A Prithviraj Road. Since the L and DO s calculation is only to the third decimal of an Acre (which causes a difference of approximately 8 sq. metres), the actual demarcation at site will be carried out on perfect rectangular lines in terms of the agreement to Sell. vii. Since the L and DO s calculation is only to the third decimal of an Acre (which causes a difference of approximately 8 sq. metres), the actual demarcation at site will be carried out on perfect rectangular lines in terms of the agreement to Sell. vii. The plaintiffs have been in possession of a substantial portion known as 28, prithviraj Road. The possession of a strip of land measuring approximately 800 sq. yards shall be handed over to them (plaintiff-4) by defendant No. 4 as agreed. ( 6 ) A decree for specific performance of the Agreement dated 16/09/1975, was passed in favour of the plaintiffs. The defendants also withdrew their Counter claim No. 420/1990. The Court while decreeing the suit also appointed Shri N. K. Kantawala as Receiver to cany out and complete the formalities/requirements of L and DO towards conversion to free hold and to enable mutation/conveyance of property No. 28. Prithviraj Road, New Delhi in favour of the plaintiff No. 4. ( 7 ) THE plaintiffs filed an application being ia. No. 9827/2002 praying for a direction to the Receiver to cany out the demarcation of the property, for which provision was made in the compromise application, which was decreed vide Order dated 17/07/2000. The report of the Receiver had not been received on account of disputes between the plaintiffs and defendant No. 4 with regard to the measurement being taken by the Receiver in the suit property. Learned counsel for defendant No. 4 gave his no objection to demarcation subject to the same being done in his presence and in terms of L and DO specifications and the lease document. The Receiver was directed to carry out the measurement of the suit property in accordance with the L and DO specification and also to carry out the demarcation between the two properties, namely 28 and 28-A, Prithviraj Road, New Delhi, The receiver was further directed to oversee the construction of the boundary wall on the demarcation line between the two plots and submit his report within six weeks. ( 8 ) THE applicant claims to be the tenant under defendant No. 4, that is, Bhai Manjit singh in respect of premises No. 28-A. Prithviraj Road. Defendant No. 4 had granted a lease dated 3/02/1996 through M/s. Kartik Enterprises in respect of premises No. 28-A, Prithviraj Road, New delhi to the applicant. ( 8 ) THE applicant claims to be the tenant under defendant No. 4, that is, Bhai Manjit singh in respect of premises No. 28-A. Prithviraj Road. Defendant No. 4 had granted a lease dated 3/02/1996 through M/s. Kartik Enterprises in respect of premises No. 28-A, Prithviraj Road, New delhi to the applicant. Under the Lease a sum of Rs. 15 crores was given as interest free security deposit to Shri Bhai Manjit singh which was refundable on termination of the lease, that is, on possession being handed over to Shri Bhai Manjit Singh. Upon termination of tenancy, applicant could retain possession without payment of rent till refund of security deposit. ( 9 ) IN the event the applicant filed Suit no. 826/2000 for recovery of the security deposit along with interest and sought injunction against dispossession or interference in the enjoyment of the tenanted premises. ( 10 ) LEARNED single Judge vide orders dated 3/05/2000 restrained the defendants therein including the defendant No. 4 in the suit its HUF, M/s. Kartik Enterprises, m/s. Continental Enterprises Pvt. Ltd. and avtar Mohan Singh and M/s. Chhahal Investments and Trading Company Ltd. , defendants therein from parting, alienating, selling, transferring or disposing of in any manner the suit property bearing No. 28-A, prithviraj Road, New Delhi. Defendants 1-6 were further restrained from interfering in any manner with the applicant s peaceful possession and enjoyment of the aforesaid property. ( 11 ) THE case of the applicant is that despite the restraint order in Suit No. 826/ 2000, the plaintiffs and defendants at the back of the applicant, collusively and fraudulently obtained the decree in the present suit. This has been done fraudulently to deprive the applicant/lessee from retaining possession of the entire tenanted property which it is entitled to retain without payment of any rent till the refund of security deposit. The applicant claims to have carried out various improvements and constructions itself such as beautifying the area, land scaping, making of water falls in the tenanted premises, enclosed by boundary wall. The Receiver had been appointed essentially for completion of formalities/requirements of L and DO for conversion to freehold. On the application of the plaintiff and with no objection from defendants, measurement of the suit property as well as demarcation between the two buildings, namely 28 and 28-A, Prithviraj Road New delhi, was directed videOrder dated 25th october, 2002. The Receiver had been appointed essentially for completion of formalities/requirements of L and DO for conversion to freehold. On the application of the plaintiff and with no objection from defendants, measurement of the suit property as well as demarcation between the two buildings, namely 28 and 28-A, Prithviraj Road New delhi, was directed videOrder dated 25th october, 2002. Receiver was further directed to oversee the construction of boundary wall on the demarcation line, between the two plots. It is in the background of the aforesaid facts that the pleas of the applicant on merits, objections of the defendants as to their maintainability, have to be considered. ( 12 ) PLAINTIFFS, defendant No. 4 and the applicant have filed their written submissions. Learned senior counsel for the plaintiff/non-applicant, mr. Arun Mohan with Mr. Arvind Bhat, Mr. Rajeev Sawhney. senior advocate for the defendant No. 4 with Mr. Vineet Jhanji for defendant No. 4 and Mr. Ashwani Kumar, senior Advocate with Ms. Ruchi Narula for the applicant have been heard extensively. ( 13 ) MR. Ashwani Kumar submitted that the applicant had been put in possession of the entire premises, 28-A, Prithviraj Road, new Delhi enclosed by boundary wall pursuant to Lease Deed dated 3/02/1996. The lease was initially for a period of three years with a refundable interest-free security deposit of Rs. 15 crores to defendant no. 1 in addition to the entire rent for the period of lease. The lease was terminated by notice dated 15/02/1999. However, defendant No. 4 failed to refund the security deposit as required. The applicant, therefore, continued to retain possession of the leased premises in terms of Clause 8 of the Addendum. The applicant, as noted, filed suit No. 826/2000, where vide Order dated 3/05/2000, defendants had been restrained from selling, transferring or alienating the suit property bearing No. 28-A, prithviraj Road, New Delhi and from interfering in any manner with the applicant s peaceful possession and enjoyment of the property. ( 14 ) THE main plank of Mr. Ashwani kumar s submission is that the plaintiffs have obtained a fraudulent and collusive decree in respect of a portion of the property under the applicant s lawful occupation, by concealment of facts from the Court passing the decree dated 17/07/2000 and order dated 25th October, 2002. The compromise arrived at between the plaintiffs and defendant Nos. 1 to 4 in the present suit no. The compromise arrived at between the plaintiffs and defendant Nos. 1 to 4 in the present suit no. 1820/1986 was a collusive one. Defendant no. 2 deliberately suffered the Order of demarcation and construction of wall as per demarcation line so as to defeat the injunction order dated 3/05/2000. obtained by the applicant passed in Suit No. 826/ 2000. ( 15 ) MR. Ashwini Kumar next contended that the plaintiffs suit No. 1820/1986 was for specific performance of the Agreement to sell dated 16/09/1975 and in the alternative for damages. There was no whisper or a prayer for possession of any area of the property in question, because as per the plaint the plaintiff had already received possession of property from the tenants in 28, Prithviraj Road, New Delhi. The plaint did not mention any disputed area with respect of which possession was still to be obtained nor there was any dispute as to the area in question. Accordingly, a decree of specific performance of the Agreement to Sell dated 16/09/1975 was passed with Receiver being appointed to carry out and complete formalities/ requirements of L and DO towards conversion to free-hold and to enable mutation/conveyance of property No, 28, Prithviraj Road, New delhi. In these circumstances it is not open to the plaintiffs or defendant No. 4 to dispossess the applicant who is a lawful tenant, in occupation of the premises leased to it by the defendant No. 4 on the ruse of demarcation. He submitted that the plaintiffs were fully aware that the applicant was in lawful possession of area of 800 or so square yards, which the defendant No. 4 promised to deliver to the plaintiff in terms of the compromise decree. Such an arrangement could not have been entered into without the consent of the applicant. ( 16 ) MR. Ashwani Kumar submitted that the applicant had been shown the entire area presently under its occupation by defendant no. 4, who held out the same as demised premises, for which the Lease Deed was executed. There was no question or suggestion of their being any dispute as to the defendants right or authority to put the applicant in possession of the entire premises now in its occupation. 4, who held out the same as demised premises, for which the Lease Deed was executed. There was no question or suggestion of their being any dispute as to the defendants right or authority to put the applicant in possession of the entire premises now in its occupation. He submitted that the defendant No. 4 itself admits that the alleged excess area in possession of the applicant came to his notice/knowledge in 1999, when the supplemental lease deed was executed with L and DO. The defendant No. 4 vehemently contested the present suit for specific performance filed by the plaintiff for 14 years and thereafter when a family settlement was reached with the other defendants, he suffered the collusive decree to deprive the applicant of the premises in its bona fide occupation. He submitted that as per the existing wall built in the year 1958, the area in the applicant s possession is about 4500 sq. yards. The recital in the lease Deed dated 3/02/1996 describes the demised premises as comprising inter alia the tubewell which was clearly beyond the 3500 sq. yards, mentioned in the Lease Deed as the area of the premises. The tubewell falls in the now disputed area of 800 sq. yards, which the plaintiffs are laying a claim based on the demarcation. He submitted that the defendants cannot now be allowed to contend contrary to their conduct, pleadings and representations. They cannot be permitted to take advantage of their own wrong or plead a unilateral mistake long after the event to deny boha fide tenant of his right to retain possession of property Which was duly let out. Mr. Ashwani Kumar s ubmitted that a party which conceals an illegality, pursues it and benefits therefrom cannot be heard to plead mistake in defence of its deliberate acts of illegality. He submitted that fraud and mistake cannot co-exist as they make strange bed-fellows. He placed reliance on itc Limited v. George Joseph Fernandes reported in (1989) 2 SCC 1 : ( AIR 1989 SC 839 ) as also to Oriental Insurance Company ltd. v. Mantora Oil Products Pvt. Ltd. reported in (2000) 10 SCC 26 to urge that assuming without admitting that the defendant no. 4 acted under a mistake of fact, he could still not dispossess the applicant, even if the misrepresentation of defendant No. 4 was honest. v. Mantora Oil Products Pvt. Ltd. reported in (2000) 10 SCC 26 to urge that assuming without admitting that the defendant no. 4 acted under a mistake of fact, he could still not dispossess the applicant, even if the misrepresentation of defendant No. 4 was honest. He also placed reliance on West v. Jones reported at 1851 (1) SIM NS 207 to submit that, prima facie, the party making the representation was bound by it as between himself and those whom he has thus misled. Without prejudice to the above, he submitted that even if it was assumed that defendant No. 4 had let out the premises without being the owner of the portion of the same he could not escape the relationship of landlord and tenant having admittedly accepted the rent for the entire leased premises, in addition to refundable security of Rs. 15 crores from the applicant. Equitable principle of estoppel by conduct, apply fully and squarely to the present case and uninterrupted possession of applicant for seven years cannot be disturbed. ( 17 ) MR. Ashwani Kumar next submitted that defendant No. 4 s right to transfer the demised premises was subject to the appli- cant s right under the lease in respect of the demised premises, provision for which was made in Clause 20 of the Lease. Mr. Ashwani kumar laid considerable emphasis on the fact that the defendant No. 4 was obliged to disclose to the applicant the existence of any disputes with the plaintiff, He was also obliged to disclose to the plaintiffs factum of the lease and the rights of the applicant thereunder. The defendant No. 4 did not inform the applicant about the agreement with the plaintiffs. The applicant had acted bona fidely on the representations made by the defendant No. 4 and entered into a lease for the entire property now under the appllicant s possession being property No. 28-A, prithviraj Road, New Delhi. It was. also incredible that the defendant No. : 4 ,or ,the plaintiffs became aware of the actual area comprising 28, Prithviraj Road, New Delhi only in 1999 after having entered into the agreement in 1975. ( 18 ) LEARNED counsel also referred to what he termed as contradictory stand in pleadings by the defendant No. 4 wherein the disputed area had been described as vacant strip of land. ( 18 ) LEARNED counsel also referred to what he termed as contradictory stand in pleadings by the defendant No. 4 wherein the disputed area had been described as vacant strip of land. A contradictory stand has also been taken with regard to the date of construction of the wall being in 1958 or 1976. The plaintiff in the Suit No. 1820/1986 had admitted to have received possession of 28, prithvtraj Roa d, New Delhi. He submitted that if the plaintiffs had in fact purchased the 800 sq. yards in possession of the applicant along with the Agreement of which specific performance was sought, then there was no reason to pay additional Rs. 28 lakhs to the defendants. The plaintiffs who admit having received possession of property No. 28 from the defendants, cannot now seek to enlarge the scope of the decree or prayer in the suit. The plaintiffs own case was that the suit properly for which specific performance was sought was under their possession since 31/12/1975. The defendant no. 4 s accepting the appointment of a receiver for demarcation and directions to build the boundary wall was ex facie fraudulent and intended only to defeat the injunction order dated 3/05/2000. The plaintiffs had not sought the relief of possession in respect of the suit property at the time of institution of the suit. Accordingly, the prayer/relief not prayed at the time of institution of thee suit cannot be given in the execution of the decree. In support of the above he placed reliance on Om Prakash v. Ram Kumar reported in (1991) 1 SCC 441 : ( AIR 1991 SC 409 ); Smt. Nalini Sunder v. Sri G. V. Sunder reported in AIR 2003 Kant 86 : (2003 AIR Kant HCR 3100 ). ( 19 ) IT was next argued that the bar under order XXI, Rule 102, CPC would not be applicable as the same comes into play when there is obstruction to a decree for possession of immovable property. In the present suit, receipt of posses sibn was already admitted and it was decreed for specific performance based on a compromise. The same would still not advance the case of the plaintiff and defendant No. 4 ( 20 ) MR. In the present suit, receipt of posses sibn was already admitted and it was decreed for specific performance based on a compromise. The same would still not advance the case of the plaintiff and defendant No. 4 ( 20 ) MR. Ashwani Kumar urged that since, this was a decree obtained by fraud, misrepresentation and collusion to defeat the injunction order obtained by the applicant, the same was not sustainable at law. The court would not give relief to the plaintiff beyond the relief sought in the plaint. He submitted that the applicant should not be made to suffer the actions of others, especially by a collusive decree and order being obtained on a compromise entered into, to which the applicant was not a party. ( 21 ) ON the factual aspects, he submitted that the plaintiffs had never raised any objection with regard to what is claimed as an excess area under the tenancy of the defendant. It was to the knowledge of the plaintiffs that the applicant had been put in possession of the entire property divided by the boundary wall in question and held out to be 28-A. Prithviraj Road, New Delhi. The plaintiffs did not move any application for amendment. The plaintiff had knowledge that the applicant was using the part of the land as tenanted premises which they now claim to be theirs. He submits that the plaintiffs are estopped from raising any objection and demanding possession from the applicant. The plaintiffs are also debarred by the principle of standing by from asserting their claims in respect of the area in question. He relied upon the passages at pages 110-1112 of Kerr on the law of fraud and mistakes as also Broom s Maxims, 10th edition, pages 104-105. ( 22 ) LEARNED senior counsel submitted that in view of the foregoing submissions, the plaintiffs and the defendants cannot be allowed in law and in equity to defeat the rights and interests that have accrued in favour of the applicant pursuant to a legal, valid and binding contract of lease, with respect to the property in question. ( 22 ) LEARNED senior counsel submitted that in view of the foregoing submissions, the plaintiffs and the defendants cannot be allowed in law and in equity to defeat the rights and interests that have accrued in favour of the applicant pursuant to a legal, valid and binding contract of lease, with respect to the property in question. Thus, without adjudication of the applicant s suit for declaration and the present application under order XXI, Rule 97, CPC the plaintiffs- landlord and defendant No. 4 be restrained from interfering with the lawful possession of the applicant and from dispossessing them from any part of the tenanted premises currently in their occupation. ( 23 ) MR. Arun Mohan, learned senior Advocate appearing for the plaintiffs refuting the submissions of the applicant submitted that the applicant Mitsui was a lessee only in respect of premises built on plot No. 28a, prithvi Raj Road,, while the plaintiffs; claim was confined to plot No. 28. Prithvi Raj Road, which belonged to Smt. Avtar Mohan Singh and was sold to the plaintiffs vide agreement to sell dated 16th September, 1975. The plaintiffs suit for specific performance was in respect of 28, Prithvi Raj Road. The two plots were distinct and separated and were rectangular. He submitted that the real intention of Mitsui in moving the application was to either encroach beyond plot No. 28-A into plot No. 28 or to protect their unlawful possession of land which was not forming part of plot No. 28-A, but was part of plot no. 28, Prithvi Raj Road, formerly owned by smt. Avtar Mohan Singh, mother of Bhai manjit Singh, who owns the plot No. 28-A leased to the applicants. ( 24 ) THE question to be considered is whether the applicants have any right on land which forms plot No. 28 and even if they were in possession, could an injunction be granted to the applicants? He submitted that as per the lease granted to the applicant-Mitsui, the area of plot No. 28a had been described as about 3,500 sq. yds. , while as per the L and DO records and the subdivision granted, the area was 3731. 61 sq. yds. The decree for specific performance in favour of the plaintiff based on the compromise under Order XXIII, Rule 3 CPC was in respect of plot No. 28. yds. , while as per the L and DO records and the subdivision granted, the area was 3731. 61 sq. yds. The decree for specific performance in favour of the plaintiff based on the compromise under Order XXIII, Rule 3 CPC was in respect of plot No. 28. ( 25 ) THE plaintiffs were not laying any claim on any part of plot No. 28a which had been leased to the applicants by Bhai Manjit singh/owner of plot No. 28a. He submits that the suit for specific performance filed by the plaintiff was pending since 1986. There could not have been any transfer of any part of plot No. 28. Any such transfer would be illegal and covered by the principle of lis pendense. Lease in favour of the applicant Mitsui was, for plot No. 28a. admeasuring about 3500 sq. yds. The area of the said plot as per L and DO records and the supplemental lease granted is 3731. 6 sq. yds. Hence Mitsui cannot lay any claim beyond 3731. 5 sq. yds. in respect of plot no. 28a as otherwise the same would mean encroaching upon the area of plot No . 28. ( 26 ) LEARNED counsel for the plaintiff placed reliance on Premji Ratansey Shah v. Union of India, 1994 (5) SCC 547 : 1995 air SCW 2425 and Mahadeo Savlaram shelke v. Pune Municipal Corporation. 1995 (3) SCC 33 :. (1995, AIR, SCW 1439) in support of his contention that a trespasser could not seek the helping hand of the Court for protecting unlawful possession. He submitted that once it was shown that the applicants have no right to an area beyond 3731. 6 sq. yds, which is the area of plot No. 28a as per L and DO, no injunction would issue in favour of the applicants to protect an unlawful possession. The injunction obtained by the applicants was in S. No. 826/2000, filed for recovery of Rs. 15 Crores. The said injunction would operate only in respect of premises leased, namely, plot No. 28-A admeasuring about 3500 sq. yds. or at best for 3731. 61 Sq. yds. , whichis the actual area of plot No. 28a, Prithvi Raj Road. It cannot operate in respect of plot No. 28 or any part thereof. ( 27 ) MR. Rajiv Sawhney, learned senior advocate, appearing for defendant No. 4 supported the submissions of Mr. Arun Mohan. yds. or at best for 3731. 61 Sq. yds. , whichis the actual area of plot No. 28a, Prithvi Raj Road. It cannot operate in respect of plot No. 28 or any part thereof. ( 27 ) MR. Rajiv Sawhney, learned senior advocate, appearing for defendant No. 4 supported the submissions of Mr. Arun Mohan. He relied extensively on the additional affidavit filed by defendant No. 4-Bhai Manjit singh in response to the application under order XXXIX Rules 1 and 2 CPC, wherein reference is made to the correspondence with the applicants and their solicitors, to dispel the plea of alleged fraud and collusive decree being obtained by the plaintiff and defendants, including defendant No. 4. He submitted that the applicants were fully aware of the area leased as also the extent of actual area. They had also been made aware of the proposals for settlement and the willingness of the defendant No. 4 to sell and transfer the leased premises namely 28- a, Prithvi Raj Road, irrespective of the agreement being reached with the plaintiffs or not in respect of plot No. 28. ( 28 ) HAVING noted in brief the submissions of the plaintiffs as well as defendant no. 4, let us consider the applicants plea with regard to the extent of their tenanted premises comprised in plot No. 28a which they claim to be entitled to retain. In the lease deed dated 3/02/1996 in favour of M/s. Mitsui and Company, the extent of lease premises are described as follows: whereas the lessor is absolutely entitled to occupy and giye on lease the entire premises bearing No. 28a. Prithvi Raj Road. New Delhi-110011 comprising of a building constructed on a plot of land admeasuring about 3500 sq. yds, and consisting of entrance hall, huge and elegant sitting room, dining hall, kitchen-cum-pantry, two bed rooms and study rooms with attached toilets, front and rear varandahs on the ground floor and huge master bed rooms having one lady and one gents toilet attached to it, besides two other bedrooms with attached toilets, front and rear varandahs on the first floor and a laundry room on the second floor along with six, out of seven quarters. This property also Includes air conditioning plants, tubewell. This property also Includes air conditioning plants, tubewell. two gates, drive-in and drive-out and garden in front, rear and side, hereinafter called the "demised PRE- ( 29 ) IT would be seen that the premises are described as being on a plot admeasuring about 3500 sq. yds. ( 30 ) IT is not in dispute that the composite leasehold property 28, Prithvi Raj Road was sub-divided into 28, Prithvi Raj Road and 28a, Prithvi Raj Road pursuant to the L and DO letter dated 14/02/1958. The property was earlier known as plot No. 14, Block-11, Prithvi Raj Road, New Delhi. The Land DO stipulated the area of plot No. 28-A as 0. 771 acres and fixed additional ground rent at Rs. 177. 50p per annum which was computed on the area 0. 77 acres equivalent to 3731 sq. yds. In th suit for recovery filed by the applicants i. e. S. No. 826/2000, the area of the plot No. 28a, the leased premises, is again described as being approximately 3500 sq. yds. The supplementary lease deed dated 10/06/1999 issued by L and DO, gives an area of two plots i. e. 28-A, Prithvi Raj Road, having an area of 316x 106. 28" and 28, Prithvi Raj road having an area of 316x169. 72". Thus the area of the two plots works out to 0. 771 acres for plot No. 28-A and 1. 271 acres for plot No. 28. Defendant No. 4 s case is that the boundary walls between the two properties was wrongly built. As a result of which, part of the land falls on the other side of the wall adjoining the land comprising 28-A, Prithvi raj Road. The possession of 28, Prithvi Raj road has been handed over to the plaintiffs pursuant to the agreement to sell and the tenant vacating, but for the strip of land that remained On the other side of the boundary wall abutting the land comprised in 28-A, prithvi Raj Road. The wall had been built by mrs. Avtar Mohan Singh and is not the property either of defendant No. 4 or Mitsui and company. ( 31 ) THE crux of the controversy is whether Mitsui, who have been leased plot no. 28-A admeasuring about 3500 sq. yds. The wall had been built by mrs. Avtar Mohan Singh and is not the property either of defendant No. 4 or Mitsui and company. ( 31 ) THE crux of the controversy is whether Mitsui, who have been leased plot no. 28-A admeasuring about 3500 sq. yds. but are in possession of a greater area can retain areas beyond that of plot No. 28a and which is part of the neighbouring plot No. 28? Mitsui and Co. are not claiming any part of plot No. 28. The lease in favour of Mitsui mentions about 3500 sq. yds. qualifying plot no. 28a. The L and DO records the area of plot No. 28-A as 3731. 61 sq. yds. The extent to which expression about can be adjusted for 28a would thus be the maximum of its actual area which is 3731 sq. yds. Assume for the sake of argument, that in the registered lease and in the plaint in Suit no. 826/2000. the area of plot No. 28a had been described as about 4,200. The actual area of the plot, as per L and DO records, is 3731. 61 sq. yds. with a depth of 316 ft. and a width of 106. 20 ft. The approximate area given in the lease would be reduced and read down to 3731. 61 sq. yds. In the instant case, the expression about 3500 sq. yds. can at best be read as 3731 sq. yds. which is the actual area. Learned counsel for defendant no. 4 has also explained the reference in the lease deed to the tube well. It is submitted that the description of the property in the first recital clause on page 2 of the lease which includes, inter alia, tubewells, two gates, drive in and drive out etc. , was to the pump house, which fell within th area of 28-A and not to the two tubewells. These tubewell, it is claimed were not dug by defendant no. 4, but appear to have been dug by Mitsui and Co. From the foregoing, the conclusion which is inescapable is that as per the lease, the intention was to grant to mitsui and Co. a lease of an area about 3500 sq. yds. and at best the same could be extended to the actual area of the sub-divided plot 28-A which is 3761 sq. yds. From the foregoing, the conclusion which is inescapable is that as per the lease, the intention was to grant to mitsui and Co. a lease of an area about 3500 sq. yds. and at best the same could be extended to the actual area of the sub-divided plot 28-A which is 3761 sq. yds. ( 32 ) COMING to the question of the applicants having been kept in dark and a collusive and fraudulent decree having been obtained, i find that while it is true that the compromise was entered into between the parties to S. No. 1820/86, the applicants were otherwise fully aware of the controversy with regard to the area of plot No. 28a. As the applicants were not a party to the suit No. 1820/86, there was no question of their being impleaded or made a party to the said compromise application and-no adverse inference against the plaintiffs or defendant no. 4 can be drawn in this regard. ( 33 ) FOLLOWING the grant of lease deed dated 3/02/1996, an addendum dated 3/02/1996 had been entered into with the applicants by the lessors of plot No, 28a. Interest free security deposit of Rs. 15 crores was given by Mitsui and co. on the terms and conditions set out in addendum. Under the addendum, defendant no, 4, had agreed to give an option to the applicants to purchase the property as recorded in the addendum. Pursuant to the addendum, a deed of confirmation dated 6/01/1997 had been signed between the parties and registered. By the said addendum and confirmation, the applicants sought to reserve to itself an option to purchase the property for an agreed consideration of Rs. 48 crores. It was agreed that in the event of the applicants, exercising its option to purchase, the sum of Rs. 15 crores would be adjusted against the sale consideration. In case applicant opted not to exercise the option to purchase the lessor was to confirm the repayment of the security deposit on expiry/termination. In the event of failure to pay the applicants were entitled to continue to occupy the property without payment of rent. 15 crores would be adjusted against the sale consideration. In case applicant opted not to exercise the option to purchase the lessor was to confirm the repayment of the security deposit on expiry/termination. In the event of failure to pay the applicants were entitled to continue to occupy the property without payment of rent. ( 34 ) IT is the defendant No. 4 s case that the applicant had exercised its option to purchase the property, however, for the purposes of present applications, I need not dwell on the controversy, whether an agreement/understanding had been reached for purchase of the property or not? What is relevant is that in connection with the option to purchase, the solicitors and Advocates of the applicant, as also its representatives carried out a detailed review to the title of the property bearing No. 28a. Even an authorisation was given for an inspection of files and records pertaining to the property at the L and DO office; Reference in this connection, is invited to the letter dated 2 7/04/1998 of the applicant s chief representative to defendant No. 4 informing that inspection was refused by L and DO in the absence of defendant No. 4 or any other member of the family who are required to be present. The advocates M/s. Kochhar and co. of the applicants vide their letter dated 12/05/1998 raised several queries and under the head "sub-division" posed inter alia the following three questions : (III) The process of sub-division also involves the process of two files in the L and do in the names of 28 and 28a. Prithvi Raj road. Have two such files been created in the L and DO? (iv) Please specify the exact extent of the premises? Is it 0. 771 acre or 0. 711 acre. (v) Kindly specify as to who actually owns and in possession of the property. " ( 35 ) THE applicants further vide their letter dated 6/10/1998 requested the defendant No. 4 to secure the execution and registration of the supplementary lease deed in relation to plot No. 28a. The supplementary lease was finally executed inrespect of plot No. 28a on 10/06/1999 specifying the area as 0. 771 acres and for plot No. 28 as 1. 217 acres. The site plan attached to the supplementary lease deed gives the exact dimensions of the two properties. The supplementary lease was finally executed inrespect of plot No. 28a on 10/06/1999 specifying the area as 0. 771 acres and for plot No. 28 as 1. 217 acres. The site plan attached to the supplementary lease deed gives the exact dimensions of the two properties. ( 36 ) DEFENDANT No. 4 vide its letter of august, 1999 sent, to the applicant, a copy of the arbitration award as also the supplemental lease deed dated 10/06/1999. wherein the exact area of the plot No. 28a was given. Again vide his letter of 29/02/2000, the defendant No. 4 wrote to the applicant s drawing their attention that in the earlier documents signed in 1996 i. e. lease deed, the area of the lease deed was given as 3500 sq. yds. but now the applicant-defendant would be selling 3731 sq. yds. The defendant claimed that it had a marketable title and would be selling the same without encumbrances. Applicants were also informed that they have resolved all issues with the plaintiff/occupants for the adjoining property. Paras 1 and 2 of the said letter are as under : 87 "1) I have resolved all issues with Mr. J. R. Daryani, the occupant of the adjoining property, 28, Prithvi Raj Road, New Delhi. 2) in the earlier documents signed between us in 1996, the area of the leased property was 3500 sq. yds. However, we will now be selling to you 3731 sq. yds after taking out the area for Mr. Daryani. The Land Surveyors appointed by Mr. Daryani and myself have already demarcated the property. This is as agreed by you in December. 1999. " ( 37 ) THE above letter bears an endorsement of acknowledgment of applicants, with their stamp. Prior to, this, defendant No. 4 had addressed a letter dated 18/06/1999. The relevant extract from the said letter is as under : "l and DO will now be executing a supplementary lease Deed covering a separate document of title for 28a, Prithvi Raj i. e. separate from the document of title for 28, prithvi Raj Road. Pursuant to the settlement with L and do, we will be in a position to transfer to you a clear and marketable title with clear possession of 3500 sq. yrds. in terms of our agreement. In fact as already discussed personally, i can now transfer to you in addition a further 231 sq. yds. Pursuant to the settlement with L and do, we will be in a position to transfer to you a clear and marketable title with clear possession of 3500 sq. yrds. in terms of our agreement. In fact as already discussed personally, i can now transfer to you in addition a further 231 sq. yds. and this is after making full provision for 28, Prithvi Raj road. "we are in a position to transfer a clear title with possession of 28-A, Prithvi Raj road, independent of any settlement or compromise of the disputes between us and mr. Daryani relating to 28, Prithvi Raj Road and I am in a position to satisfy your lawyers in this connection. " ( 38 ) FROM the correspondence exchanged between defendant No. 4 and the applicants with reference to documents noticed above it is clear that the applicants were fully aware of the controversy with regard to the exact area of plot No. 28a. In fact the solicitors of the applicants themselves had inquired whether it was 0. 771 or. 711 acres. In view of the correspondence, as noticed above, the entire case, as sought to be urged by applicant, based on edifice of a fraud having been perpetrated by defendant No. 4 and plaintiffs, on the applicants crumbles down. It cannot withstand judicial scrutiny. Moreover, the lease deed itself mentions the area about 3500 sq. yds. belies any misrepresentation with regard to the extent of area. ( 39 ) THE applicants who are stated, to have carried out extensive landscaping and beautification and are a large corporation have themselves to blame, if initially they did not carry out any measurements to ascertain the exact area at the time of entering into the lease agreement. Another perspective in which the matter can be looked at is that the applicant who had taken on lease an area of about 3500 sq. yds. of plot No. 28-A, continued to use and occupy greater area by occupation of part of plot No. 28. Applicant availed of this advantage, but have no right to perpetuate or retain the same. Another perspective in which the matter can be looked at is that the applicant who had taken on lease an area of about 3500 sq. yds. of plot No. 28-A, continued to use and occupy greater area by occupation of part of plot No. 28. Applicant availed of this advantage, but have no right to perpetuate or retain the same. ( 40 ) IN view of the finding reached negat ing the plea of fraud and concealment raised by applicants, it is not necessary to refer to the decisions or judicial pronouncements relied on, in this regard, by the learned senior counsel for the applicant as the same would not be applicable to the facts of the present case. It is pertinent to note that even in the suit filed for recovery applicants mentioned the area as about 3500 sq. yds. of plot No. 28a after having access to the records and copy of the lease deed granted by the L and do in respect of plot No. 28a while negotiating the purchase of the property. The applicants cannot now claim that the area leased to them under the lease was in excess or beyond the area of plot No. 28a i. e. 3731 sq. yds. ( 41 ) AS regards the scope of injunction granted in S. No. 826/00, the Order is on the following terms : "pending further orders upto the next date of hearing, the defendants Nos. 1 to 6 are restrained from dealing with transferring, disposing off, alienating or creating any third party interest in any mariner, in the suit property bearing No. 28a, Prithvi Raj Road, new Delhi. In the meanwhile defendants 1 to 6 are further restrained from interfering in any manner with the peaceful possession and enjoyment of the aforesaid property by the plaintiff. " ( 42 ) READING of the aforesaid order would show that firstly it is in respect of suit property bearing No. 28a, Prithvi Raj Road. Plaintiff had sought the restraint only in respect of plot No. 28a, Prithvi Raj Road. Hence it would be confined to the area of plot No. 28a. Moreover, restraint from interfering with the peaceful possession and enjoyment is again for "aforesaid" property meaning thereby property No. 28a. Neither the plaintiff, nor defendant No. 4 are disturbing the peaceful possession of applicant s on plot 28a. Hence it would be confined to the area of plot No. 28a. Moreover, restraint from interfering with the peaceful possession and enjoyment is again for "aforesaid" property meaning thereby property No. 28a. Neither the plaintiff, nor defendant No. 4 are disturbing the peaceful possession of applicant s on plot 28a. In view of the foregoing discussion, LA 60,43/2003 has no merit and is dismissed. Interim orders passed in IA. No,6043/2003 stand vacated. Similarly IA 7722/2003 being an application moved by the applicant under Order XXI, Rule 97 and 101 read with sections 47, 141 and 151 CPC for declaration of the decree passed in the present suit as illegal, is not maintainable as the applicant has subsequently filed a separate suit for declaration bearing S. No. 1482/2003 titled mitsui and Co. v. Bhai Manjit Singh. The applicant has sought a declaration that the decree passed in the present suitdated 17-7-2000 to be null and void since it allegedly effects the lawful rights of the applicant. A permanent injunction has also been sought not to execute a decree in a manner which would lead to dispossession of the premises or part thereto in the occupation of the applicants. Summons in the suit have been directed to be issued. As regards IA 1523/1996 (application under Order XXXIX, rules 1 and 2, CPC) in the Suit seeking an interim injunction, notice of this was not issued as the counsel for the parties agreed that the subject matter of the said application had been argued in the application being ia 6043/03 in Suit No. 1820/1986. As regards the prayer for keeping in abeyance, the direction for demarcation, the applicant has failed to make out any prima facie case. Hence the said prayer is rejected. IA 7728/03 being an application under Order I Rule 10, cpc for impleading Mitsui and Co. as defendant no. 5 in the suit decided on 1 7/07/2000 is not maintainable, the suit having already been decided and is dismissed. ( 43 ) BEFORE ending, it may be noted that learned counsel for the plaintiffs without prejudice to its rights and contentions has offered to reimburse the cost of two tube wells/borewells which are claimed by the plaintiffs to have been dug by the applicant since they fall in plot No. 28. ( 43 ) BEFORE ending, it may be noted that learned counsel for the plaintiffs without prejudice to its rights and contentions has offered to reimburse the cost of two tube wells/borewells which are claimed by the plaintiffs to have been dug by the applicant since they fall in plot No. 28. The plaintiffs accordingly submit that they would reimburse the cost of the said tubewells/ borewells or make payment to the applicant for provision of similar tubewells/borewells in Plot No. 28-A, Prithviraj Road, New Delhi. Order accordingly.