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2021 DIGILAW 1090 (ALL)

Rajeev Gupta v. Prashant Garg

2021-09-21

SIDDHARTH

body2021
JUDGMENT : 1. Heard Sri Nipun Singh, learned counsel for the appellants and Sri Krishna Mohan Tripathi, learned counsel appearing on behalf of contesting respondent no. 1 and perused the lower court record. 2. This second appeal has been preferred by the defendant nos. 2 to 4/appellants against the judgement and decree dated 04.03.2017 passed by Additional District Judge, Court No. 1, Muzaffarnagar in Civil Appeal No. 17 of 2015 (Prashant Garg Vs. Rajeev Gupta and others) arising out of judgement and decree dated 25.02.2015 passed by Civil Judge (Senior Division), Court No. 1, Muzaffarnagar in Original Suit No. 117 of 2003 praying for cancellation of sale deeds dated 16.06.1992 and 29.06.1992 executed in favour of the defendant nos. 2 to 4/appellants by Ramesh Chand Garg (brother of plaintiff no. 1) and also for delivery of possession of property in dispute. 3. The plaintiffs instituted an Original Suit No. 117 of 2003. The plaintiffs’ case is that Dr. Babu Ram Garg was the owner of House No. 49B, Vakil Road, New Mandi, Muzaffarnagar, measuring 960 sq. yards. He acquired other properties also during his lifetime. He had three sons, namely, Ishwar Chand Garg, Ramesh Chand Garg and Dr. Karam Chand Garg. Dr. Babu Ram Garg executed a will dated 17.10.1951 which was duly registered and he died in the year 1958. By virtue of will, the western part of House No. 49B aforesaid was bequeathed to Ishwar Chand Garg and eastern part thereof, area 515 sq. yards went to Dr. Karam Chand Garg. The business of pharmacy left behind by late Dr. Babu Ram Garg in the name and style of “The Sewak Pharmacy” exclusively went to his third son, Ramesh Chand Garg, along with a sum of Rs.5,000/- in cash. Ramesh Chand Garg was not given any right, title or interest in the House No. 49B. In the year 1992, Dr. Karam Chand Garg, owner of eastern part of House No. 49B, on the basis of will of his father, instituted an Original Suit No. 458 of 1992 praying for a decree of permanent injunction on 15.06.1992 in the court of Civil Judge, Muzaffarnagar, against Ramesh Chand Garg and legal heirs of late Ishwar Chand Garg. Initially an ex-parte injunction order was granted to the plaintiff on 15.06.1992 but Ramesh Chand Garg executed two sale deeds of the property in favour of defendant nos. Initially an ex-parte injunction order was granted to the plaintiff on 15.06.1992 but Ramesh Chand Garg executed two sale deeds of the property in favour of defendant nos. 2 to 4/appellants and subsequently wife and son of late Ishwar Chand Garg and plaintiff, late Dr. Karam Chand Garg entered into a compromise and the Original Suit No. 458 of 1992 was decided vide judgement and decree dated 13.10.1992 in terms of aforesaid compromise. Despite the decree of injunction, Ramesh Chand Garg executed sale deeds dated 16.06.1992 and 29.06.1992 in favour of the defendant nos. 2 to 4/appellants. The defendant nos. 2 to 4/appellants were fully aware that Ramesh Chand Garg had no right to execute the sale deeds. The original plaintiff died during the pendency of suit and his son was substituted in his place. His daughters were impleaded as defendant nos. 8 and 9 in the suit and they did not claimed any interest in the suit property. During the pendency of suit, the defendant no. 1, Smt. Meena Kumari died on 25.03.2005 leaving behind the defendant nos. 2 to 5 as her legal heirs. The legal heirs of deceased Smt. Meena Kumari are not in possession over the suit property but if their possession is found, the plaintiffs are entitled to get possession of the same. The defendant nos. 2 to 4/appellants refused to get the sale deed executed by Ramesh Chand Garg in their favour cancelled as the suit was instituted by the plaintiffs. 4. The defendant nos. 1 to 5/appellants filed their written statements stating that the house in dispute was ancestral property of original plaintiff, Dr. Karam Chand Garg, his brothers Ishwar Chand Garg, Ramesh Chand Garg and his father, Dr. Babu Ram Garg. Therefore, Dr. Babu Ram Garg had no right to execute will of the house in dispute. The defendant nos. 2 to 4/appellants are in possession as owners of the property since the dates of the sale deeds are in their favour and since June 1992, the plaintiffs were aware of this fact. The plaintiffs never initiated any proceedings to get the sale deeds in favour of the defendants cancelled or to get possession of the property from the defendant nos. 2 to 4/appellants. The plaintiffs never initiated any proceedings to get the sale deeds in favour of the defendants cancelled or to get possession of the property from the defendant nos. 2 to 4/appellants. On the basis of family settlement in the year 1956, name of Ramesh Chand and Smt. Leelawati was recorded in the City Board, Muzaffarnagar and this was done with the consent of Dr. Babu Ram Garg who died in the year 1958. Ramesh Chand enjoyed the property as its owner in his lifetime and made alterations therein. After purchasing the house in dispute from Ramesh Chand, the defendants have amalgamated it in House No. 50B and both the houses have become a single unit since June-July 1992. The property exclusively belongs to the defendant nos. 2 to 4/appellants who are bonafide purchasers of the same for value without notice. They have made alterations in the property for their use and their employees are working from the property in dispute. In western and northern part of the property, the legal heirs of Ramesh Chand, defendant nos. 6 and 7 are in possession, as tenants. The decree of compromise in Original Suit No. 458 of 1992 is based on fraud and being a void document, has no effect over rights of the defendant nos. 2 to 4/appellants. 5. The defendant nos. 6 and 7/respondents filed their written statement stating that the House No. 49B was owned by Dr. Babu Ram Garg and he executed a will wherein no share was given to Ramesh Chand in the disputed property. In the sale deeds under challenge, the defendant nos. 6 and 7 are not the parties. Ramesh Chand was in dire need of money during his lifetime and taking undue advantage of the same, the disputed sale deeds were got executed by the defendant nos. 2 to 4/appellants knowing very well that Ramesh Chand Garg had no title of the suit property and sale deeds in dispute are void documents. 6. During the pendency of suit, the plaintiffs/respondents moved an amendment application on 05.05.2015 praying for amendment of plaint and sought to introduce the relief of declaration to the effect that the disputed sale deeds dated 16.06.1992 and 29.06.1992 are not binding on them, which was initially allowed at appellate stage but finally set-aside by this Court in a Misc. Petition No. 9616 of 2017 by the order dated 18.10.2016. 7. Petition No. 9616 of 2017 by the order dated 18.10.2016. 7. On the basis of the pleadings of the parties, the trial court framed the following issues :- (i) Whether plaintiff is owner in possession of the disputed property ? (ii) Whether the disputed sale deeds have been executed without any right and title and is a void document ? (iii) Whether the suit is undervalued and the court fees paid is insufficient ? (iv) Whether the suit is barred by time ? (v) To what relief are the plaintiffs entitled to ? 8. The trial court decided issue nos. (i), (ii) and (iv) together and held that the plaintiffs have failed to prove that they are owners in possession of the property purchased by the defendant nos. 2 to 4/appellants vide sale deeds dated 16.06.1992 and 29.06.1992. It further held that plaintiffs have failed to prove that the sale deeds aforesaid have been executed without right and title and are void documents. It further found that the suit is barred by time. Issue no. (iii) regarding court fees and valuation was decided in favour of the plaintiffs. Issue no. (v) was decided by the court below in terms of compromise (paper no. 85A) between the plaintiffs and the defendant nos. 6 and 7 and the suit of the plaintiffs was dismissed with costs by the judgement of the trial court dated 25.02.2015. 9. Plaintiff no. 2, Prashant Garg, preferred a Civil Appeal No. 17 of 2015 against the jugement and decree of the trial court which was allowed and the judgement and decree of the trial court dated 25.02.2015 was set-aside. The defendant nos. 2 to 4/appellants were directed that the property occupied by them on the basis of disputed sale deeds dated 16.06.1992 and 29.06.1992 be vacated within 30 days and its possession be handed over to the plaintiffs failing which the plaintiffs would be entitled to take possession of the same in accordance with law. It was further directed that since the defendant nos. 6 and 7/respondents are in possession over the disputed property with the permission of the plaintiff and his father, therefore, the plaintiff is entitled to get the possession of the same by duly instituting a suit for possession. 10. It was further directed that since the defendant nos. 6 and 7/respondents are in possession over the disputed property with the permission of the plaintiff and his father, therefore, the plaintiff is entitled to get the possession of the same by duly instituting a suit for possession. 10. In the present appeal, the following substantial questions of law were framed for consideration :- (a) Whether a sale-deed can be ignored as being void without there being any relief to that effect in the plaint ? (b) Whether without proving the will which was relied upon by the plaintiff, the suit could be decreed ? (c) Whether when the relief was barred by limitation, could the suit be decreed on the basis of case of the plaintiff that the sale-deed was void ? (d) Whether the effect of the decree which was passed in Original Suit No. 307 of 1987 be diluted while deciding the suit which was filed by the plaintiff in the instant case ? 11. Regarding the first substantial question of law, learned counsel for the defendant nos. 2 to 4/appellants has submitted that without cancelling the sale deeds executed in favour of the defendant nos. 2 to 4/appellants, the relief of possession cannot be granted to the plaintiff. The sale deeds are binding till they are cancelled by any competent court. The title of the property will vest in the defendant nos. 2 to 4/appellants. The trial court has held that the relief of cancellation of sale deeds has become time barred and therefore, the first appellate court has wrongly granted the relief of possession to the plaintiff. The amendment regarding the sale deeds declaration of being void having been rejected, the same no longer exists in the plaint. He has relied upon the judgement of the Apex Court in the case of Ramti Devi Vs. Union of India, 1995 (1) SCC 198 . 12. Learned counsel for the plaintiff/respondent no. 1 has submitted that both the sale deeds are void ab-initio and deserve to be ignored. Ramesh Chand Garg had no right, title and authority to execute the disputed sale deeds. This fact is evident from the judgement passed in Original Suit No. 458 of 1992. The sale deeds were not executed by Dr. Karam Chand Garg, the original plaintiff and he was not bound to sue for its cancellation. Ramesh Chand Garg had no right, title and authority to execute the disputed sale deeds. This fact is evident from the judgement passed in Original Suit No. 458 of 1992. The sale deeds were not executed by Dr. Karam Chand Garg, the original plaintiff and he was not bound to sue for its cancellation. If a person sells away the property belonging to other, it would certainly be a fraud against the true owner of the property and the true owner need not seek declaration regarding the documents which is void ab-initio and ignoring them, a suit for possession simpliciter can be instituted. Merely because a prayer for cancellation was made in the plaint, it cannot be held that it was the main relief. It was an ancillary relief to the main relief of possession and may be treated as surplusage. The suit is mainly based on the relief of possession on the basis of title and not based upon the basis of cancellation of void sale deeds. Case laws relied upon by learned counsel for the plaintiff/respondent no. 1 on substantial question of law no. (a) are as follows :- (1) Ranjit Singh Vs. Naranjan Singh, 2015 (1) L.A.R. 196 (2) State of Maharashtra Vs. Pravin Jethalal Kamdar (dead) by L.Rs., AIR 2000 (SC) 1099 (3) Prem Singh & Ors. Vs. Birbal & Ors., AIR 2006 (SC) 3608 (4) Sopanrao Vs. Syed Mehmood, AIR 2019 (SC) 3113 (5) Jami Appanna Vs. Jami Venkatappadu & Ors., AIR 1953 (Madras) 611 (C.J. Bench) 13. This Court finds that in the judgement of the Apex Court relied upon by the learned counsel for the defendant nos. 2 to 4/appellants in the case of Ramti Devi (supra), the Supreme Court has held that for a suit for declaration of ownership and possession of house against the person who has sold the same by way of registered sale deed is three years when the plaintiff was aware of the execution of the sale deed from the date of its execution. The sale deed was executed only to stifle the proposed prosecution of defendant. In the present case, the sale deed executed by Ramesh Chand Garg was in violation of the interim injunction order passed in Original Suit No. 458 of 1992 instituted by the original plaintiff, late Dr. Karam Chand Garg, against his brother, Ramesh Chand Garg, the vendor of the defendant nos. In the present case, the sale deed executed by Ramesh Chand Garg was in violation of the interim injunction order passed in Original Suit No. 458 of 1992 instituted by the original plaintiff, late Dr. Karam Chand Garg, against his brother, Ramesh Chand Garg, the vendor of the defendant nos. 2 to 4/appellants. The sale deeds in dispute were executed when the interim injunction order passed against Ramesh Chand Garg on 15.06.1992 was operative. It is settled law that a sale deed executed in violation of injunction order of the court is void. The Apex Court in the case of Jehal Tanti and others Vs. Nageshwar Singh (dead) through L.Rs., AIR 2013 (SC) 2235 has held in paragraph no. 11 which is as follows : 11. The same issue was considered in Vidur Impex and Traders (P) Ltd. and others v. Tosh Apartments (P) Ltd. and others (2012) 8 SCC 384 , and it was held : “At the cost of repetition, we consider it necessary to mention that Respondent 1 had filed suit for specific performance of agreement dated 13.9.1988 executed by Respondent 2. The appellants and Bhagwati Developers are total strangers to that agreement. They came into the picture only when Respondent 2 entered into a clandestine transaction with the appellants for sale of the suit property and executed the agreements for sale, which were followed by registered sale deeds and the appellants executed agreement for sale in favour of Bhagwati Developers. These transactions were in clear violation of the order of injunction passed by the Delhi High Court which had restrained Respondent 2 from alienating the suit property or creating third-party interest. To put it differently, the agreements for sale and the sale deeds executed by Respondent 2 in favour of the appellants did not have any legal sanctity.” Learned counsel for the plaintiff/respondent no. 1 has relied upon the judgement of Punjab and Haryana High Court in the case of Ranjit Singh (supra) wherein the High Court held that where the sale deed was executed by impersonation, the document was held to be void ab-initio and a decree for setting-aside the same was not held to be necessary. Limitation for filing suit for declaration of the sale deed as void was held to be 12 years as per Article 65 of the Limitation Act. In this case, the brother of the plaintiff no. Limitation for filing suit for declaration of the sale deed as void was held to be 12 years as per Article 65 of the Limitation Act. In this case, the brother of the plaintiff no. 1 executed the sale deed by way of impersonation. The High Court has relied upon the judgement of Apex Court in the case of Prem Singh and others (supra) where the Apex Court has held that Section 31 of the Specific Relief Act refers to both, void and voidable document. It provides for discretionary relief. When a document is valid, it does not requires cancellation but when it is void ab-initio, a decree for setting-aside the same would be necessary as the same is non est in the eye of law. He has further relied upon the judgement of the Apex Court in the case of Pravin Jethalal Kamdar (dead) (supra) wherein the Apex Court has held that where the possession has been taken under void document, suit for possession simpliciter can be filed, even if relief of declaration regarding validity of document is sought along with the same. The suit would be governed by Article 65 and not Article 58 of the Limitation Act, 1963. In the case of Sopanrao (supra), the Apex Court held that limitation for filing suit for recovery of possession on the basis of title is 12 years. Merely because one of the relief sought is of declaration, that would not mean that outer limitation of 12 years is lost. 14. In view of the above consideration, substantial question of law no. (a) is decided holding that the sale deeds in dispute can be ignored being void and the relief regarding their cancellation being void documents was not necessary. 15. Regarding the second substantial question of law, learned counsel for the defendant nos. 2 to 4/appellants has submitted that the vendor of defendant nos. 2 to 4/appellants executed the sale deed against the recital in the will of his father, Dr. Babu Ram Garg. Therefore, the will was required to be proved directly in accordance with law as per Section 63 of Indian Succession Act r/w Section 68 of Indian Evidence Act. No date of will, name of attesting witness or whether the same is registered or unregistered, has been mentioned in the plaint. Even if it was registered, it was required to be proved in accordance with law. No date of will, name of attesting witness or whether the same is registered or unregistered, has been mentioned in the plaint. Even if it was registered, it was required to be proved in accordance with law. He has relied upon the following judgements :- (1) Jeevan Bahadur Vs. Govind Charan, 2014 (1) ARC 189 (2) MB Ramesh Vs. KM Veeraje, 2013 (7) SCC 490 (3) Bharpur Singh Vs. Shamsher Singh, (2009) 107 RD 620 SC He has further submitted that the certified copy of will was produced for the first time in evidence in suit on 06.02.2008. Certified copy, being secondary evidence, was required to be proved from the original will, unless it was proved by the plaintiff that the original will has been lost. He has relied upon the following judgements in this regard :- (1) Benga Behera Vs. Braj Kishore Nanda, 2007 (9) SCC 728 (2) J. Yasoda Vs. K. Shobha Rani, 2007 (5) SCC 730 It was further submitted by the learned counsel for the defendant nos. 2 to 4/appellants that the findings of the lower appellate court that the original will was lost is perverse and not based on any pleading or evidence. 16. Learned counsel for the plaintiff/respondent no. 1 has submitted that the will was proved in Original Suit Nos. 307 of 1987 and 458 of 1992 as all the successors of late Dr. Babu Ram Garg including Ramesh Chand Garg (predecessor-in-interest of defendant nos. 2 to 4/appellants) admitted the execution of registered will dated 17.10.1951 and its contents. They also admitted that the will was acted upon and it was lost after being filed in some litigation. The admission made by the parties in pleadings or before court stand on higher footing and are admissible u/s 58 of the Evidence Act as obviating the necessity of calling an attesting witness of the will. Moreover, when the will itself was not disputed by the predecessor-in-interest of defendant nos. 2 to 4/appellants, there was no need of proving the same. The admission of its due execution creates estoppel against the defendant nos. 2 to 4/appellants as they claim their right through Ramesh Chand Garg who also admitted due execution of the will in Original Suit No. 307 of 1987. He has submitted that such a view has been taken in the case of Nagindas Ramdas Vs. The admission of its due execution creates estoppel against the defendant nos. 2 to 4/appellants as they claim their right through Ramesh Chand Garg who also admitted due execution of the will in Original Suit No. 307 of 1987. He has submitted that such a view has been taken in the case of Nagindas Ramdas Vs. Dalpatram Iccharam, Brijram, AIR 1974 (SC) 471 and in the case of Thayyullathil Kunhikannan & Ors. Vs. Thayyullathil Kalliani & Ors., AIR 1990 (Kerala) 226 (Division Bench). He has further submitted that when the matter, whether on question of fact or a question of law, has been decided between two parties in a suit and the decision has attained finality, neither party can raise the matter again in subsequent suit. The principle of res-judicata applies and even where it is not directly applicable, the courts have applied the same for achieving finality in litigation. He has relied upon the judgement of the Apex Court in the case of Madhukar D. Shende Vs. Tarabai Aba, AIR 2002 (SC) 637 . Case laws relied upon by learned counsel for the plaintiff/respondent no. 1 on substantial question of law no. (b) are as follows :- (1) Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi, AIR 1960 (SC) 100 (2) Bhagwat Sharan (Dead Thr. Lrs.) Vs. Purushottam & Ors., AIR 2020 (SC) 2361 (3) Sulochana Amma Vs. Narayanan Nair, AIR 1994 (SC) 152 (4) Krishna Kumar Sinha Vs. Kayastha Pathshala (Prayag) Allahabad & Another, AIR 1966 (Allahabad) 570 (5) Sunil Gupta Vs. Kiran Girhotra & Ors., AIR 2008 (SC) 140 (6) Sarvinder Singh Vs. Dalip Singh & Ors., 1996 (5) SCC 539 (7) Hameed Vs. Kanhaiya, AIR 2004 (Allahabad) 405 (8) Arya Pritinidhi Sabha, Punjab Vs. Dev Raj, AIR 1963 (Punjab) 208 (Division Bench) (9) M. Narayanamma Vs. Lakshmidevi & Ors., AIR 2015 (NOC) 680 (KAR) (10) Nagindas Ramdas (supra) (11) Thayyullathil Kunhikannan & Ors. (supra) (12) Madhukar D. Shende (supra) 17. This Court finds that the defendant nos. 2 to 4/appellants have raised objection to the will dated 17.10.1951 executed by Dr. Babu Ram Garg in favour of the original plaintiff, Dr. Karam Chand Garg and Ishwar Chand Garg. In Original Suit No. 307 of 1987, the parties were Smt. Leelawati, wife of late Ishwar Chand Garg (brother of original plaintiff, Dr. Karam Chand Garg) and Ramesh Chand Garg, the vendor of defendant nos. 2 to 4/appellants. Babu Ram Garg in favour of the original plaintiff, Dr. Karam Chand Garg and Ishwar Chand Garg. In Original Suit No. 307 of 1987, the parties were Smt. Leelawati, wife of late Ishwar Chand Garg (brother of original plaintiff, Dr. Karam Chand Garg) and Ramesh Chand Garg, the vendor of defendant nos. 2 to 4/appellants. In the aforesaid suit, the will executed by Dr. Babu Ram Garg in 1951 was setup by the plaintiff as the source of title to the property in possession of the defendant, Ramesh Chand Garg. She sought declaration of her ownership over the property in the possession of the defendant, Ramesh Chand. The aforesaid suit was decided in terms of compromise. In the compromise, it was agreed that the plaintiff and the defendant, are in separate possession and will remain as such. Original Suit No. 458 of 1992 was instituted by Dr. Karam Chand Garg, original plaintiff, against Ramesh Chand Garg, Smt. Leelawati, wife of late Ishwar Chand Garg and Lakshendra Kumar, son of late Ishwar Chand Garg, praying for a decree of permanent injunction against the defendants to the effect that they may be restrained from transferring by means of sale deed or in anyway the House No. 49B, Vakil Road, Nai Mandi, Muzaffarnagar or its any part regarding which he has derived title on the basis of will. In the suit also, the will of Dr. Babu Ram Garg was setup as the source of title. In the plaint of the suit, it was clearly averred that Dr. Babu Ram Garg has not given any share to defendant, Ramesh Chand Garg, in the house in dispute and he is residing as licensee in part of the same. He has no objection to his residing in the house, because Ramesh Chand Garg is his brother, but he has no interest in or title in the property and he cannot transfer any part of the same. In the present suit, the order of injunction was passed by the trial court on 15.06.1992 and in violation of the same, the sale deeds in dispute were executed on 16.06.1992 and 29.06.1992 by the defendant no. 1, Ramesh Chand in the suit. The suit was ultimately decided in terms of a compromise decree dated 03.11.1992 wherein it was admitted between the parties that a will was executed by Dr. Babu Ram Garg in favour of original plaintiff, Dr. 1, Ramesh Chand in the suit. The suit was ultimately decided in terms of a compromise decree dated 03.11.1992 wherein it was admitted between the parties that a will was executed by Dr. Babu Ram Garg in favour of original plaintiff, Dr. Karam Chand Garg and late Ishwar Chand Garg, husband and father of defendant nos. 2 and 3. It was also agreed in the compromise that the defendant no. 1, Ramesh Chand Garg, has no share in the property in his possession. He has no source of income and therefore his brother, original plaintiff, Dr. Karam Chand Garg, has authorized him to collect rent from the tenants and use the same for his sustenance. The remaining rent was to be given to the plaintiff. Therefore, it was clear that the beneficiaries of the will of Dr. Babu Ram Garg never disputed the same in Original Suit No. 307 of 1987 and Original Suit No. 458 of 1992. The admission were in the pleadings of the parties and therefore there was no requirement of proving the will in the present suit. Admittedly, the defendant nos. 2 to 4/appellants have claimed their title through Ramesh Chand Garg who never disputed the validity of the will rather in the Original Suit No. 458 of 1992, he admitted its validity and therefore, the lower appellate court has rightly decreed the suit and held that the will was neither required to be proved in the present suit nor the filing of original will was necessary. 18. The judgement in the case of Jeevan Bahadur (supra) relied upon by the learned counsel for the defendant nos. 2 to 4/appellants is not applicable to the facts of this case. In that case, the two brothers claimed property on the basis of two wills which were not proved. In the present case, the will stands proved in the pleadings and compromise decree passed in Original Suit No. 307 of 1987 and Original Suit No. 458 of 2019. The second and third judgements relied upon in the cases of MB Ramesh (supra) and Bharpur Singh (supra) are also regarding the manner of proof of execution of will and has no relevance to the present proceedings. The judgements in the case of Benga Behera (supra) and J. Yasoda (supra) relied upon by the learned counsel for the defendant nos. The second and third judgements relied upon in the cases of MB Ramesh (supra) and Bharpur Singh (supra) are also regarding the manner of proof of execution of will and has no relevance to the present proceedings. The judgements in the case of Benga Behera (supra) and J. Yasoda (supra) relied upon by the learned counsel for the defendant nos. 2 to 4/appellants which provide that the secondary evidence regarding will cannot be entertained by the Court unless it is proved that the original will was lost, are of no consequence. All the beneficiaries of the will admitted the due execution of the will in earlier suits. Even Ramesh Chand Garg, from whom the defendant nos. 2 to 4/appellants claimed their right, title and interest in the suit property, admitted execution of will in favour of his brothers, namely, Ishwar Chand Garg and original plaintiff, Dr. Karam Chand Garg by his father. He never admitted any interest in the property on the basis of the will in the compromise decree passed in Original Suit No. 458 of 1992. 19. Learned counsel for the plaintiff/respondent no. 1 has relied upon the judgement of the Apex Court in the case of Nagindas Ramdas (supra) wherein in paragraph no. 26, the Apex Court has held that admissions in pleadings or judicial admissions, admissible u/s 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties when evidentiary admissions which are receivable at the trial as evidence are not conclusive. They can be shown to be wrong. In the case of Narayan Bhagwantrao Gosavi Balajiwale (supra), the Apex Court in paragraph no. 12 has held that admission is the best evidence that an opposing party could rely upon, unless withdrawn or proved erroneous. The defendant nos. 2 to 4/appellants having not been able to prove that the admissions made in the earlier suits by the legal heirs of late Dr. Babu Ram Garg were erroneous and not in accordance with the will which was also admitted by them. The Kerala High Court in the case of Thayyullathil Kunhikannan & Ors. The defendant nos. 2 to 4/appellants having not been able to prove that the admissions made in the earlier suits by the legal heirs of late Dr. Babu Ram Garg were erroneous and not in accordance with the will which was also admitted by them. The Kerala High Court in the case of Thayyullathil Kunhikannan & Ors. (supra) held that the requirements involved calling the attesting witness of the will for attestation is not necessary in cases where execution of the will is not disputed. In the case of Madhukar D. Shende (supra), the Apex Court in paragraph no. 9 has held as follows : It is well-settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of 'not proved' merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance. The Apex Court in the case of Sulochana Amma (supra) has held that once an issue or question arising directly and substantially between the parties or their privies is decided finally by a competent court or Tribunal, it will operate as res-judicata in the subsequent suit or proceedings. Explanation to Section 11 C.P.C. has to be read harmoniously with its substantive provisions. Explanation to Section 11 C.P.C. has to be read harmoniously with its substantive provisions. In the present case, the validity and due execution of will was directly and substantially an issue in two earlier suits between the sons of the testator and the sons admitted the due execution and validity of the will. Therefore, it was not open for the defendant nos. 2 to 4/appellants to raise the issue again. 20. As per Section 65 (b) of Indian Evidence Act, secondary evidence regarding a document can be given when the existence, conditions or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest. Here the predecessor-in-interest of the defendant nos. 2 to 4/appellants admitted the will in dispute in toto. 21. Hence, the second substantial question of law no. (b) is decided holding that since the will in dispute stood proved in two earlier suits and decrees passed therein, it was not required to be proved in the present suit. 22. Regarding the third substantial question of law, learned counsel for the defendant nos. 2 to 4/appellants has submitted that the trial court clearly found that the suit of the plaintiff is barred by the law of limitation but the first appellate court has wrongly decreed the suit on the ground that the sale deeds are void. The reasonings given by the first appellate court are not in accordance with law. There was clearly three years limitation for instituting suit for cancellation of sale deeds in dispute which was never instituted but the first appellate court has decreed the same illegally. 23. Learned counsel for the plaintiff/respondent no. 1 has submitted that none of the sale deeds in dispute were executed by the original plaintiff, Dr. Karam Chand Garg. Both the sale deeds in dispute were illegally executed by Ramesh Chand Garg without any title and authority during the pendency of suit and that too in blatant violation of injunction order and possession was taken by defendant nos. 2 to 4/appellants on the basis of such void documents. When possession has been taken pursuant to void documents, Article 65 of the Limitation Act will apply and the limitation to file the suit for possession will be 12 years. Suit to recover possession simpliciter can also be filed. 2 to 4/appellants on the basis of such void documents. When possession has been taken pursuant to void documents, Article 65 of the Limitation Act will apply and the limitation to file the suit for possession will be 12 years. Suit to recover possession simpliciter can also be filed. Even if relief of declaration for validity of document is sought along with recovery of possession, suit would be governed by Article 65. Relief of possession is based upon title and not based upon the cancellation of void sale deed. Limitation for filing a suit for possession on the basis of title is 12 years. Merely because one of relief’s sought is of declaration or cancellation of void documents, it will not mean that outer limitation of 12 years for recovery of possession is lost. Even if the plaint contains a prayer for a cancellation of void document, there are good reasons for holding it to be purely incidental and unnecessary relief. Thus, the present suit for recovery of possession based on title was not barred by the limitation having been instituted within 12 years of limitation. Case laws relied upon by learned counsel for the plaintiff/respondent no. 1 on substantial question of law no. (c) are as follows :- (1) Ranjit Singh Vs. Naranjan Singh, 2015 (1) L.A.R. 196 (2) State of Maharashtra Vs. Pravin Jethalal Kamdar (dead) by L.Rs., AIR 2000 (SC) 1099 (3) Prem Singh & Ors. Vs. Birbal & Ors., AIR 2006 (SC) 3608 (4) Sopanrao Vs. Syed Mehmood, AIR 2019 (SC) 3113 (5) Jami Appanna Vs. Jami Venkatappadu & Ors., AIR 1953 (Madras) 611 (C.J. Bench) 24. This Court finds the contention of the learned counsel for the defendant nos. 2 to 4/appellants that the relief of cancellation of sale deed was barred by limitation and therefore, the suit of the plaintiff could not have been decreed by the first appellate court without declaration of the sale deeds, as void is untenable. For the relief of cancellation of the sale deeds, the suit was barred by Article 59 of the Limitation Act. While considering the substantial question of law nos. (a) and (b), this Court has found that the sale deeds in dispute were void documents and the plaintiff was real owner of the property. The relief for cancellation or declaration of the sale deed as void was not required. While considering the substantial question of law nos. (a) and (b), this Court has found that the sale deeds in dispute were void documents and the plaintiff was real owner of the property. The relief for cancellation or declaration of the sale deed as void was not required. More so, when they were executed by Ramesh Chand Garg in violation of the interim injunction order passed in Original Suit No. 458 of 1992. The suit was essentially to recover possession of the property by the real owner and it was not dependent upon the cancellation of the void sale deeds executed by Ramesh Chand Garg in favour of the defendant nos. 2 to 4/appellants. Therefore, the relief of possession was sought within 12 years of period of limitation provided under Article 65 of the Limitation Act. 25. Hence, the finding of the trial court that the suit was barred by the law of limitation was incorrect and has been rightly corrected by the first appellate court which is hereby affirmed. Substantial question of law no. (c) is accordingly, decided. 26. Regarding the fourth and last substantial question of law in this appeal, learned counsel for the defendant nos. 2 to 4/appellants has submitted that the vendor had no right to enter into compromise in respect of property which he has sold since he had no right, title and interest in the suit property left and therefore, such a compromise is not binding upon the vendees i.e., defendant nos. 2 to 4/appellants. He has relied upon the following judgements :- (1) Smt. Phekani Vs. Board of Revenue, 2011 (8) ADJ 141 (2) Shiva Bachan Vs. DDC, Ballia, 2010 ACJ 131 (3) Sudhir Singh Vs. Narender Singh, 2008 ACJ 1574 He has further submitted that decision in Original Suit No. 458 of 1992 is based on collusion and fraud, therefore, not binding and hence, Section 52 of the Transfer of Property Act will not apply. He has relied upon the judgement in the case of Sharda Prasad Tiwari Vs. Board of Revenue, (1998) 16 LDC 955 and submitted that the ex-parte interim injunction order passed in Original Suit No. 458 of 1992 had no effect on the rights of the defendants unless the plaintiff proved its due service on the defendant nos. 2 to 4/appellants. He has relied upon the following judgements in this regard : (1) Mool Raj Vs. 2 to 4/appellants. He has relied upon the following judgements in this regard : (1) Mool Raj Vs. Murti Raghunath, 1967 SC 1386 (2) L. Parsotam Saran Vs. B. Barhma Nand, AIR 1927 AII FB 401 He has finally submitted that the execution of sale deed in breach of injunction order does not renders it void ab-initio and the same has to be declared void as held by the Apex Court in the case of Thomson Press Vs. Nanak Builders, (2013) 5 SCC 397 . 27. Learned counsel for the plaintiff/respondent no. 1 has replied to the aforesaid submissions stating that the last question regarding effect of decree passed in Original Suit No. 307 of 1987 is only relevant to the extent that late Dr. Babu Ram Garg was the owner of property in dispute and he executed a will and the original will was lost having been filed in some previous litigation and the devolution of property of late Dr. Babu Ram Garg was through will. Rest of the effect of the compromise decree was in-personam inter-se between Smt. Leelawati and Ramesh Chand Garg since Dr. Karam Chand Garg was not party to the Original Suit No. 307 of 1987. A compromise decree is not binding on such persons who are not parties thereto. Moreover, alienation of any portion of the suit property, even prior to filing of the suit, would not bind the interest of plaintiff when the will in question qua the same was established by the plaintiff. Case laws relied upon by learned counsel for the plaintiff/respondent no. 1 on substantial question of law no. (d) are as follows :- (1) Sanjay Verma Vs. Manik Roy, AIR 2007 (SC) 1332 (2) Sneh Gupta Vs. Devi Sarup, 2009 (6) SCC 194 (3) M. Narayanamma Vs. Laksmidevi & Ors., AIR 2015 (NOC) 680 (KAR) 28. This Court finds that the compromise decree in Original Suit No. 307 of 1987 was between Smt. Leelawati, wife of late Ishwar Chand Garg and Ramesh Chand Garg, father of defendant nos. 6 and 7 in the suit. The owner of the property, Dr. Karam Chand Garg, was not made a party in the aforesaid suit by either of the parties and therefore, it will not bind the original plaintiff of the present suit. 6 and 7 in the suit. The owner of the property, Dr. Karam Chand Garg, was not made a party in the aforesaid suit by either of the parties and therefore, it will not bind the original plaintiff of the present suit. The Apex Court in the case of Sanjay Verma (supra) has held that if a person is not party to a suit, the decree does not affects him unless the judgement is in-remand not in-personam. Here the judgement was not in-rem but in-personam between Smt. Leelawati and Ramesh Chand Garg. 29. The judgement in the case of Smt. Phekani (supra) relied upon by the learned counsel for the defendant nos. 2 to 4/appellants in support of his contention is to the effect that the vendor has no right to enter into compromise regarding property which has already been sold by them. In the aforesaid case, this Court has relied upon Section 18 of the Evidence Act which provides that the statements made by a party to the proceedings shall be treated as admissions only if it is made during continuance of interest of the persons making the statements. It has been pointed out by the learned counsel for the defendant nos. 2 to 4/appellants that at the time when the compromise decree was passed in Original Suit No. 458 of 1992, the defendant no. 1, Ramesh Chand Garg, had already executed two sale deeds in favour of the defendants/appellants and therefore his admission of the title of the plaintiffs on the basis of the will was of no consequence. 30. It has been considered earlier that the sale deeds in dispute were executed by the defendant no. 1, Ramesh Chand Garg in the favour of defendant nos. 2 to 4/appellants in violation of the injunction order passed by the court and therefore, legally his interest in the suit property had not ceased when he entered into compromise in the suit on account of operation of the injunction order dated 11.06.1992. Legally the injunction order created a bar against him regarding transfer of his interest from the suit property. Therefore, by merely executing void sale deeds, it cannot be said that the interest of the defendant no. 1 in the aforesaid property had ceased and his statement in compromise in the suit cannot be considered to be admission as per Section 18 of the Evidence Act. Therefore, by merely executing void sale deeds, it cannot be said that the interest of the defendant no. 1 in the aforesaid property had ceased and his statement in compromise in the suit cannot be considered to be admission as per Section 18 of the Evidence Act. The judgements in the cases of Shiva Bachan (supra) and Sudhir Singh (supra) are also to the same effect and are likewise distinguishable. 31. The additional fact against the defendant nos. 2 to 4/appellants is the compromise decree in Original Suit No. 307 of 1987 wherein also Ramesh Chand Garg admitted the validity of the will. The judgement in the case of Sharda Prasad Tiwari (supra) has been relied upon by the learned counsel for the defendant nos. 2 to 4/appellants in support of his arguments that the decree in Original Suit No. 458 of 1992 being passed in collusion and fraud, were not binding and Section 52 of Transfer of Property Act will not apply. He has not proved the elements of fraud or collusion in the compromise decree passed in Original Suit No. 458 of 1992. The fraud and collusion appears to be of the defendant nos. 2 to 4/appellants with Ramesh Chand Garg who became party to two sale deeds violating the injunction order of the court. The rule of lis pendens applies to the compromise decree and where the compromise was arrived at on the basis of will which was admitted to all the parties, the provisions of Section 52 of the Transfer of Property Act will apply. 32. Reliance on the judgements in the cases of Mool Raj (supra) and L. Parsottam Saran (supra) has been made by the learned counsel for the defendant nos. 2 to 4/appellants in support of his arguments that ex-parte interim injunction order passed in Original Suit No. 458 of 1992 had no effect on the rights of the defendant nos. 2 to 4/appellants unless it was proved that it was duly served on them. It is clear from the plaint of Original Suit No. 458 of 1992 that the defendant nos. 2 to 4/appellants were not party to the proceedings of that suit. Their predecessor-in-interest, Ramesh Chand Garg, was arrayed as defendant no. 1 in the suit. The relief sought in the suit was for permanently restraining the defendants from alienating the suit property to third parties. The defendant no. 2 to 4/appellants were not party to the proceedings of that suit. Their predecessor-in-interest, Ramesh Chand Garg, was arrayed as defendant no. 1 in the suit. The relief sought in the suit was for permanently restraining the defendants from alienating the suit property to third parties. The defendant no. 1, Ramesh Chand Garg, was aware that he has no right, title and interest in the property forming the subject matter of the aforesaid suit and hence, despite interim injunction order dated 11.06.1992, he executed two sale deeds dated 16.06.1992 and 29.06.1992 in favour of defendant nos. 2 to 4/appellants only to avoid any decree of permanent injunction against him. Therefore, it is clear that the predecessor-in-interest of the defendant nos. 2 to 4/appellants was involved in malafide transaction wherein the involvement of defendant nos. 2 to 4/appellants was clear. They cannot be said to be bonafide purchaser for value since they purchased the property fully knowing that the defendant no. 1, Ramesh Chand Garg, has no interest in the same, on a sale consideration of Rs.80,000/- each only and they also violated the principle of the buyers liability to ascertain the correctness of ownership of the property before purchasing the same. Regarding the last reliance placed upon judgement of the Apex Court in the case of Thomson Press (supra), learned counsel for the defendant nos. 2 to 4/appellants has submitted that even a sale deed passed in breach of injunction order is required to be declared void by the Court and is not void ab-initio. The aforesaid case of the Apex Court was regarding the suit for specific performance of contract for sale. In this case, the Apex Court has held that transfer pendenteliteis neither illegal nor void ab-initio but remains subservient to the rights eventually determined by the Court in pending litigation. The decision of the Court in such suit finally is binding not only on the parties to the suit but also on thoses who derive title pendente lite. In the present case, the ultimate decision of the suit resulted into compromise and admission of the right of the plaintiff by the predecessor-in-interest of the defendant nos. 2 to 4/appellants and as per the doctrine of lis pendens, the decree is binding on the defendant nos. 2 to 4/appellants. 33. Therefore, the substantial question of law no. In the present case, the ultimate decision of the suit resulted into compromise and admission of the right of the plaintiff by the predecessor-in-interest of the defendant nos. 2 to 4/appellants and as per the doctrine of lis pendens, the decree is binding on the defendant nos. 2 to 4/appellants. 33. Therefore, the substantial question of law no. (d) is decided holding that the decree in Original Suit No. 307 of 1987 was not binding on the original plaintiff, Dr. Karam Chand Garg, hence, it will have no effect on the present suit. 34. As a sequel to the above conclusions regarding the susbtantial questions of law framed in this appeal, the order of the first appellate court is confirmed. 35. The second appeal is accordingly, dismissed with costs.