G.S. Sandhawalia, J.
1. The present appeal has been preferred by defendant No.4 who is aggrieved against the judgment and decree of the lower appellate Court whereby the suit of the plaintiff has been decreed and the transfer of plot by defendants No.1 and 2, HUDA, in favour of defendant No.3, Rachna Jaiswal and further by defendant No.3 in favour of defendant No.4, the present appellant, Major Rajender Singh, has been set aside and the plaintiff has been declared owner of the plot and the defendants have been directed to hand-over the possession of the plot to the plaintiff. It was further directed that the amount which has been deposited with defendant No.3 or defendant No.4 towards the price of the plot with HUDA shall be refunded by the plaintiff with interest @ 15 % per annum and the amount which has been paid by defendant No.4 to defendant No.3 shall be paid back to defendant No.4 at the same rate of interest by defendant No.3. It has also been ordered that G.D.Bansal and O.P.Chahal, property dealers had committed fraud and it would be failure of justice if their role is not investigated and prosecuted, if found guilty and therefore, liberty had been given to defendants No.3 and 4 to get a case registered to bring the impersonators and cheaters to book along with officials of HUDA whose role needs to be investigated.
2. The plaintiff/respondent No.1-Smt.Prem Chopra filed a suit for declaration that she had applied for allotment of a residential plot initially in Sector 6 and 12-A, Gurgaon and deposited 10% of the tentative price amounting to Rs.2174/- for 6 marla plot (135 Sq.metres) along with application form No.3196 dated 31.10.1981 (Exhibit PW 1/1). Subsequently, the proposal to allot plots in the said sectors was dropped by HUDA and the applicants who had applied for allotment of plots in said sector were given option for allotment of plots in Sector 22, Gurgaon and the application for allotment of plots in the said sector were to be sent upto 22.05.1984 as per advertisement in the newspaper wherein persons who had already deposited earnest money for allotment of plot in Sector 6 and 12-A, Gurgaon and had not withdrawn the same, were entitled for consideration. Accordingly, the plaintiff, in pursuance of the said application, submitted application No.66775 dated 20.05.1984 (Exhibit PW 1/2) along with an amount of Rs. 585/- in cash deposited with the Syndicate Bank, Karol Bagh, New Delhi for making good the deficiency in 10% of the tentative sale priceof 6 marla plot in Sector 22, Gurgaon.
3. The Estate Officer, HUDA, defendant No.2 sent memorandum dated 03.06.1985 (Exhibit PW 1/3) to the plaintiff that in the draw of lots held on 07.02.1985, she had been declared successful for allotment of plot No.856 in Sector 22, Gurgaon for 6 marla but the area of Sector 22, Gurgaon was under adjudication before the Hon'ble Supreme Court of India in CWP No.11016-27 of 1984 titled Ram Phal and others Vs. State of Haryana and others which had granted stay and the allotment letter would only be issued when the said order would be vacated by the Hon'ble Supreme Court. Accordingly, the allotment was subject to the final order of the Hon'ble Supreme Court and the issuance of the letter would not automatically entitle the plaintiff to a plot offered by HUDA. It was pleaded that the plaintiff had submitted her application that she was residing in House No.21/32, West Patel Nagar, New Delhi but subsequently, the plaintiff shifted to House No.59-A, situated in Shera Mohalla, Garhi near Shri Niwaspuri, New Delhi and therefore, plaintiff had sent letter of intimation of change of address todefendant No.2 vide letter dated 19.05.1986 (Exhibit PW 2/4).
4. On no information being received by defendant No.2 of further development in the matter, the plaintiff and her husband made enquiries in the office of defendant No.2 but they were told that the matter has not been decided by the Hon'ble Supreme Court so far. In the month of April, 1995,when the plaintiff again went to the office of defendant No.2 and made enquiries about the latest position, she was told that plot No.856 Sector 22, Gurgaon had already been transferred to Mrs.Rachna Jaiswal, defendant No.3 by some lady posing herself to be the plaintiff and defendant No.3,subsequently transferred the said plot in the name of defendant No.4, Major Rajender Singh and at present, the said plot had been allotted in the name of defendant No.4 in the records of defendants No.1 and 2. The enquiries further revealed that defendant No.2 had sent a letter at the address of the plaintiff, i.e., H.No.21/32, West Patel Nagar, New Delhi but the letter was received back in the office of defendant No.2 as undelivered with report about the shifting of plaintiff from the given address to some other place. However, enquiries was made by the plaintiff and her husband in the office of HUDA regarding the transfer of plot No.856, Sector 22, Gurgaon and it was revealed that some persons had impersonated the plaintiff, and by practing fraud on the officials of defendant Nos.1 and 2 or in collusion with the said officials, had arranged to get the plot transferred in the name of defendant No.3 and on the basis of the same, transferred the plot fraudulently by impersonating another lady in place of the plaintiff. The plaintiff also contacted defendant No.3 and enquired about the said transfer of plot but she could not tell or disclose the name of such persons and told that in fact, the same was transferred by some other property dealer but she refused to tell the name of the said property dealer. Accordingly, it was pleaded that the transfer had been done by fraudulent means and there was also an affidavit in the records of defendant No.2 which was purported to be signed by Mrs.Prem Chopra and it was alleged that the plaintiff neither signed any affidavit nor made an application before defendant No.2 for transfer of the plot in question and the said transfer was with collusion of the officials of defendant No.2 and due to the negligence in ascertaining the identity of the plaintiff and without making an enquiry about the correct address and without sending the letter of intimation on the said letters under registered covers in order to ensure the identity of such imposter or the person who alleged herself to be Mrs.Prem Chopra. It was on the said cause of action, it was held out that the plaintiff could not be made out to suffer on account of such fraudulent act or illegal collusion by the officials of defendant No.2 or on account of the gross negligence in ascertaining the correct identity of the initial allottee of plot No.856 of Sector 22, Gurgaon. Accordingly, the decree for declaration was asked for on the ground that the transfer in the name of defendant No.3 had not got any valid right or title and similarly, transfer of plot to defendants No.3 and 4 did not create any valid right, title or interest in favour of defendants No.3 and 4. The plaintiff asked the defendants to comply with the demand of the plaintiff and on refusing to the same, the suit had been filed.
5. Written statement was filed by defendant No.1 taking various preliminary objections including the maintainability of the suit. The plaintiff having applied for allotment of plot in Sector 12 part 6 initially was admitted and not in Sector 6 and 12-A, Gurgaon was clarified and she deposited requisite additional amount towards 10% of the earnest money for Sector 22, Gurgaon. It was, however, averred that no letter dated 19.05.1986 had been received from the plaintiff regarding change of address in the office of defendants No.1 and 2. The allotment letter of plot No.856, Sector 22, Gurgaon was sent twice through registered post on the address given by the plaintiff and the allotment letter was received back undelivered in the office of defendant No.2 again as the plaintiff had shifted to some other place and the office of defendant No.2 received a letter dated 15.09.1989 (Exhibit PW 1/6) of the plaintiff and the address of the plaintiff was the same as given in the allotment letter and in the original application for the allotment, therefore, the allotment letter had been sent again vide No.2597 dated 18.10.1989 through registered post. The said letter was received by the plaintiff and she deposited 15% of the amount along with interest on 20.10.1989. It was further averred that the plot was transferred by the plaintiff in the name of Rachna Jaiswal, defendant No.3 vide memo No.1161 dated 08.11.1989 and defendant No.3 had further transferred the plot in the name of defendant No.4, Major Rajender Singh vide memo No.84 dated 06.01.1993. Defendant No.2 had sent allotment letter vide memo No.781 dated 27.01.1989 and 1340 dated 24.03.1989 and the letters were received back with the remark that no such person is residing in the given address. However, the plaintiff had herself sent the letter dated nil on 15.09.1989 and therefore, defendant No.2 had sent the allotment letter again on the address given by the plaintiff in the letter dated 15.09.1989. It was, accordingly, contended that the plaintiff herself had offered for the transfer of plot in the name of defendant No.3 and submitted her request vide application dated 25.10.1989 (Exhibit D4/5) and affidavit of her signatures duly attested by an Executive Magistrate dated 03.11.1989. Therefore, the transfer was legal and valid and the defendant had no knowledge whether any person had forged the signature of the plaintiff for transfer of the plot but the plot in question was transferred as per policy of HUDA and after obtaining requisite documents from the plaintiff and after proper scrutiny and there was no negligence on the part of defendant No.2.
6. Defendant No.3, Rachna Jaiswal, in the written statement submitted that the suit was bad for non-joinder of the necessary parties and that Sh.O.P. Chahal and Sh.G.D.Bansal, Proprietor, Academicians and Consultants (Private) Limited, 6 Phase, Udyog Vihar, Gurgaon and his son, Sh.Vinay Bansal through whom the entire sale transaction between plaintiff and answering defendant had been conducted were necessary parties to the suit. It was contended that the answering defendant and her husband were in need of the plot for constructing a residential house and they had approached the property dealer, G.D.Bansl for purchase of some plot in HUDA, Gurgaon. G.D.Bansal, in consultation with another property dealer, O.P.Chahal, had offered to sell the plot bearing No.856, Sector 22, Gurgaon @ Rs. 950/- per square-yards and the total sale consideration being Rs. 1,52,000/-. The plot was in the name of original allottee, Smt.Prem Chopra, wife of Sh.M.S.Chopra, resident of House No.21/32 West Patel Nagar, New Delhi and presently residing at House No.2520, Basti Punjabi, Subzi Mandi, New Delhi. Accordingly, it was settled between defendant No.3 through her husband and G.D.Bansal and O.P.Chahal that the answering defendants was to pay the amount which was originally paid by the original allottee to HUDA and after transfer of the plot in the name of the answering defendant, she would continue to pay the remaining instalments. In pursuance of the said understanding, defendant No.3 had paid Rs. 25,000/- through bank draft No.290000 dated 02.11.1989 and Rs. 10,000/- on 07.11.1989 through transfer entry from the account of her husband to the account No.899 of Vinay Bansal who is in the business of property dealing along with his father, G.D.Bansal. Defendant No.3 had also paid Rs. 92,000/- in cash in about 5 instalments in the month of October and November, 1989 and the answering defendant had also paid Rs. 4,000/- as transfer fee and therefore, in all, a sum of Rs. 1,31,000/- was paid to G.D.Bansal and O.P.Chahal who were also involved in the transaction and a receipt of Rs. 25,000/- was issued to the plaintiff which was witnessed by O.P.Chahal. Accordingly, an application was filed for transfer of the said plot and HUDA gave permission for transfer of the said plot in the name of defendant No.3 vide memo No.79 dated 25.10.1989 on the application of Mrs.Prem Chopra, plaintiff and it was transferred in the name of the answering defendant vide re-allotment letter No.1161 dated 08.11.1989 subject to the payment of the remaining instalments. On transfer of the said plot in the name of the answering defendant, she continued to deposit the remaining instalments to HUDA and the original allotment letter was given to defendant No.3 by G.D.Bansal and O.P.Chahal. In the year 1992, defendant No.3 felt the necessity of money in connection with marriage of her sister and decided to dispose off the said plot. Consequently, in the month of December, 1992, she applied for transfer of the said plot to Major Rajender Singh, son of Hukam Singh, resident of H.No.205/1 Geeta Ashram, Sadar Bazar, Delhi Cantt-110010 and HUDA transferred the said plot to Major Rajender Singh vide re-allotment letter No.84 dated 06.01.1993. Accordingly, it was pleaded that G.D.Bansal, O.P.Bansal and Mrs.Prem Chopra, in collusion with each other, had entered into conspiracy to grab the said plot and alleged that Mrs.Prem Chopra never transferred the said plot and the plot has been illegally transferred and the plaintiff had become dishonest in collusion with the said persons and wanted to usurp the said plot. Defendant No.3 had made payment after due consideration and after completing the formalities and continued paying the amounts thereafter and it was alleged that the plaintiff herself was in collusion with the abovesaid property dealers. It was denied that the plaintiff had contacted defendant No.3 and enquired about the persons who transferred the said plot in her name and that she could not disclose the name of said persons as alleged. It was denied that the signatures on the affidavit were forged or the affidavit did not contain the signatures of the plaintiffs and it was alleged that after having sold the said plot, the plaintiff wanted to regain the said plot by alleging a false and frivolous story in collusion with the persons mentioned above and they were necessary parties and it was prayed that the plaintiff be directed to implead the said persons for complete decision of the case.
7. Defendant No.4, Major Rajender Singh took the plea of being a bona fide purchaser of the plot in question for valuable consideration without any notice of alleged defect in the title of his vendor, Rachna Jaiswal. It was pleaded that he had made bona fide enquiries from the records of HUDA and was satisfied about the title of Rachna Jaiswal who was duly registered as owner in the records of HUDA and after satisfying himself about the good marketable title of defendant No.3, had proceeded with the purchase of the said plot without notice of defect, if any, in the title of defendant No.3 and it was, accordingly, held out that the plaintiff had no title in the plot after having sold the same to defendant No.3.
8. The plaintiff filed replication to the written statement of defendant No.1 alleging that the letter dated 19.05.1986 is very much available with the records of the replying defendants. It was alleged that she had visited the office of HUDA and the officials of HUDA had told that the plot is under dispute and the matter is pending before Hon'ble Supreme Court. It was denied that 15% of the total amount of the sale consideration for the said plot was deposited with interest on 20.10.1989 as this amount has not been deposited by the plaintiff as no intimation was communicated to the plaintiff at her new address. The factum of the plot being transferred in the name of Rachna Jaiswal, defendant No.3 at the request of the plaintiff was denied and her submitting an application for transfer on 25.10.1989 and giving an affidavit duly attested by Executive Magistrate on 03.11.1989 was also denied. It was reiterated that some lady had impersonated her and got the disputed plot transferred by executing documents which are all false, fictitious and fraud. The said lady had, subsequently, transferred the plot in the name of defendant No.4. It was, accordingly, pleaded that the signatures of the impostor did not tally with the original signatures of the plaintiff if the same were perused with the original application and the official defendants had not properly scrutinised the papers for the transfer of the disputed plot and the impostor was successful in transferring the plot in collusion with the concerned officials of defendant No.2 who had vested interest. Similarly, plaintiff also filed replication to the written statement filed by defendant No.3, denying that the sale transaction took place with the intervention of the O.P.Chahal and G.D.Bansal and it was alleged that those persons were not necessary parties involved. The receipt of Rs. 25,000/- issued by the plaintiff and counter-signed and witnessed by O.P.Chahal did not exist and the plaintiff had no occasion to transfer the disputed plot and the question of receiving Rs. 25,000/- did not arise at all and the receipt of this amount if in possession of defendant No.3 was fictitious and bears the forged signatures of the plaintiff. The application for transfer of plot moved by the plaintiff in the name of defendant No.3 was also denied. It was alleged that the plaintiff came to know about the illegal transfer and she, without wasting any time further, instituted the present suit and that she did not know G.D.Bansal, Vinay Bansal, O.P.Chahal at all. The factum of the plaintiff being dishonest and colluding with the said persons with intention to usurp the disputed plot was also denied. It was averred that the plaintiff had the right and title to the plot and the transfer in favour of defendant No.3 and subsequently, to defendant No.4 were not legally valid. It was held out that the affidavit bore forged signatures of the plaintiff and she never met G.D.Bansal and O.P.Chahal and she had no desire to sell the plot in question. Replication was also filed to the written statement of defendant No.4 and it was denied that he was a bona fide purchaser of the disputed plot without any notice of defect of title of vendor. It was pleaded that when the original transfer of the plot was illegal then the subsequent transfer was also illegal and against the rights of the plaintiff. It was denied that defendant No.3 had made necessary enquiries about the title of the vendor and therefore, he was not a bona fide purchaser.
9. On the basis of the pleadings, the following issues were framed by the trial Court:
1. Whether the plaintiff is allottee of plot No.856 Sector 22, Gurgaon, as alleged in plaint? OPP
2. Whether the transfer of disputed plot by defendants No.1 and 2 in favour of defendant No.3 and further by defendant No.3 in favour of defendant No.4 are illegal, void and does not create any right in defendants No.3 and 4? OPP
3. Whether the plaintiff is entitled for relief as claimed in suit? OPP
4. Whether the civil Court has no jurisdiction to try the suit? OPD
5. Whether suit is not maintainable? OPD
6. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD
7. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD
8. Whether the plaintiff has not come to the Court with clean hands? OPD
9. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction? OPD
10. Relief.
10. The plaintiff examined as many as 3 witnesses including herself and Subhash Chand, Clerk, Estate Office, HUDA as PW1 and Deepak Jain, hand-writing and finger-print expert as PW3 whereas defendants No.1 and 2, HUDA examined Virender Singh, dealing assistant of the Department and defendant No.3 examined Vijay Kumar Rastogi, handwriting and finger print expert as DW3 whose cross-examination had not been completed and Krishan Lal, Clerk, HUDA was examined as PW4 in rebuttal.
11. The trial Court clubbed issues No.1 to 3 and the evidence on record and came to the conclusion that the transfer of the disputed plot in favour of defendant No.3 was result of impersonation and fraud after placing reliance upon the opinion of the hand-writing expert and his report, (Exhibit PW 3/2) dated 19.01.2004. The report produced by the defendants and prepared by Vijay Kumar Rastogi, handwriting and finger-print expert, DW2 whose complete cross-examination had not been effected, was not taken into consideration after placing reliance upon Gopal Saran Vs. Satyanarayana AIR 1989 (SC) 1141. The trial Court also noticed that in the application dated 25.10.1989, moved by the plaintiff for transfer of plot, the date of allotment was 18.10.1989 whereas in the affidavit (Exhibit PW 1/5), it was mentioned as 27.10.1989 (27.01.1989 as per record) and the name of the husband of the plaintiff was mentioned as M.N.Chopra instead of M.S.Chopra and that the allottee would not have mentioned the wrong name of her husband. It was also noticed that defendants had alleged that payment had been made on 07.11.1989 through cheque but no proof of its encashment had been brought on record. It was further noted that defendant No.3 had specifically admitted in her written statement that she had no direct dealing with the vendor but the dealing was between her husband and the property dealers namely Vinay Bansal, G.D.Bansal and O.P.Chahal and therefore, the presence of the plaintiff at the time of transfer was held not to be established since the official witness, PW1 was also not the dealing Clerk at the relevant time. It was noticed that defendant No.3 did not appear in the witness-box to refute the case of the plaintiff and therefore, an adverse inference was drawn and presumption would arise that the case set-up by the plaintiff was correct. The husband of defendant No.3 and the property dealers were also not examined and there was no request of Court assistance to produce the said witnesses while accepting the plea of defendant No.4 that he was bona fide purchaser.
12. The trial Court came to the conclusion that defendant No.4 had verified the details and after satisfying himself, purchased the said plot and to the best of the knowledge of the defendants, the plaintiff had duly transferred the plot in the name of defendant No.3, and therefore, he was held to be a bona fide purchaser while placing reliance upon Ramakrishna Ganapayya Hegde v. Lakshminarayana Timmayya Hegde AIR 1984 (Karnataka) 45. The submission of the plaintiff that she had never received any allotment letter from the defendants and although she had given intimation regarding change of address on 19.05.1986, the same was not accepted and it was held that the plaintiff had not mentioned the date and month of visiting the office of the official defendants and there was no proof whether she had ever visited the office of HUDA herself or through her husband to make enquiries about the status of the pending case before the Hon'ble Supreme Court since there was no correspondence also with the official defendants and it was highly unlikely that the plaintiff would have waited for 10 long years and it was not reasonable and prudent act that she could have waited for so long, and therefore, she was declared not having been vigilant in pursuing the matter with HUDA and accordingly, dismissed the suit for declaration but granted the plaintiff refund of 10% of the earnest money from defendant No.3 along with interest @ 8% per annum from the date of the institution of the suit till its realisation.
13. The plaintiff preferred an appeal before the lower appellate Court and also filed an application for amendment of the plaint seeking decree of possession of the plot. The said amendment had been declined on the ground that the possession of the plot was delivered to defendant No.3 after institution of the suit, and therefore, the Court could take notice of the said facts and grant appropriate relief.
14. On merits of the case, the lower appellate Court came to the conclusion that the issue in question was whether the transfer of plot was a result of fraud and impersonation and the onus was upon the plaintiff who had, in her affidavit, deposed all the facts pleaded in the plaint. She had got her signatures compared from the admitted signatures from Deepak Jain, hand-writing expert that the disputed signatures were not her's and were not signed by her. It was noticed that no evidence was laid by the defendants that the plaintiff had sold the plot to defendant No.3 and the relevant document, Exhibit PW 1/4, PW 1/5 and PW 1/6 bore the signatures of the plaintiff. The report of Vijay Kumar Rastogi, DW2/A was rejected on the ground that since he did not turn-up for cross-examination, therefore, it could not be read into evidence. It was noted that the name of the husband of the plaintiff was not in the records of HUDA, and therefore, it had been typed as M.N.Chopra whereas the name was M.S.Chopra. The deposit of 15% on 15.10.1989 (Exhibit D-8) along with application also showed the name of her husband as M.N.Chopra and thereafter, on 25.10.1989, when she applied for permission for transfer of plot along with affidavit and the place of residence was shown as House No.21/32, West Patel Nagar, New Delhi where she was earlier residing. It was, accordingly, held that had the plaintiff executed the documents, she could not disclose the name of her husband as M.L.Chopra at one place and M.N.Chopra in 3 places whereas the name was M.S.Chopra. It was held that fraud had been committed since the letters had been received back undelivered for the want of correct address and the property dealers had forged and fabricated documents and sold the plot to defendant No.3 who further sold it to defendant No.4. The defendants had failed to prove that the transaction had been genuine and it was pleaded that Rs. 25,000/- was handed-over to the aforesaid property dealers by defendant No.3 who had given receipt to that effect and in case the plaintiff had received the said amounts, a receipt could have been brought from the concerned officials of the bank as to where the draft was debited in the account of the plaintiff. The defendants had also failed to prove from where deposit to make up the balance of 15% vide 2 drafts had been issued and from whose account and the defendants had failed to rebut the claim of the plaintiff and thus, came to the conclusion that the impersonation and fraud was there and the findings of the trial Court was affirmed on the said facts. On the issue of bona fide purchaser, the protection granted to defendant No.4 was reversed and it was held that once there was a fraud committed under Section 41 of the Transfer of Property Act, 1882, defendant No.4 was to show that defendant No.3 was the ostensible owner of the plot to succeed in the said defence and accordingly, it was held that he could not be protected under Section 41 of the Transfer of Property Act, 1882 and was only entitled to refund from defendant No.3 and the findings were reversed on this point. It was held that since the possession of the plot had been delivered during the pendency of the suit, the Court was held competent to grant the relief of possession to the plaintiff and the suit was not liable to be dismissed on the ground that it was a mere suit for declaration. Accordingly, the appeal was allowed and the plaintiff was declared to be the owner of the plot and the defendants were directed to hand-over possession of the same to the plaintiff. The transfer of the plot in favour of defendant No.3 and thereafter, defendant No.4 was set aside and it was directed that the amount which was deposited by defendant No.3 or defendant No.4 shall be refunded to them by the plaintiff with interest @ 15% per annum and the amount which had been paid by defendant No.4 to defendant No.3 shall be paid by defendant No.3 to defendant No.4 at the same rate of interest and defendants No.3 and 4 were given right to register a case against the said property dealers and the matter was open to the investigating agency to see the role of the concerned officials of HUDA. Resultantly, the present regular second appeal has been filed by defendant No.4.
15. Respondent No.3, Rachna Jaiswal was served notice but none appeared on her behalf and she was proceeded against ex parte vide order dated 01.07.2010. Counsel for both the parties tried to settle the matter amicably but the same did not reach to any logical end and the records of the case were called for and thereafter, the matter was argued at length.
16. Counsel for the appellant has contended that the lower appellate Court was not justified in reversing the findings of the trial Court while granting relief of the declaration and possession once there was silence and delay of over 10 years by the plaintiff. It was submitted that the letter, Exhibit PW2/4 dated 19.05.1986 which was regarding the change of address of the plaintiff from House No.21/32, West Patel Nagar, New Delhi to the address in Shera Mohalla, Garhi Near Shri Niwaspuri, New Delhi was a forged and fabricated document and there was cutting on the date of 19.05.1986 and it had been sent by UPC which was exhibited as Exhibit PW2/5. The cross-examination of the plaintiff was referred to wherein it was pointed out that she had no-where disclosed as to from whom she had got this letter typed and who had sent it by UPC and it was submitted that admittedly, the plaintiff was a working lady in the office of the Ministry of Labour, New Delhi and in her cross-examination, she had not mentioned any application she had made and the fact that she had not visited the HUDA office. Thus, it was pleaded that the appellant was a bona fide purchaser and was liable to be protected since he had purchased the property from HUDA after following proper procedure and taking reasonable care. Reliance was placed upon Jagan Nath and others Vs. Raj Kumar and others 1988 (2) Revenue Law Reporter 287, Anup Singh Vs. Smt.Bachni @ Bachan Kaur 1997 (1) RCR (Civil) 27, Crystal Developers Vs. Smt.Asha Lata Ghosh (Dead) thourgh LRs 2004 (4) RCR (Civil) 453, Manga Singh Vs. Guman Singh and others 2007(1) All India Land Laws Reporter 99. It was further argued that under the provisions of Order 4 Rule 6 Code of Civil Procedure, the allegations of details of fraud have to be mentioned and the plaint was silent regarding the same. Reference was made to para No.7 of the plaint wherein general allegations were made regarding names of some persons who had fraudulently transferred the plot. It was alleged that the plaintiff had not made any payment and sold the plot and thereafter, got greedy. Reference was made to Exhibit DW-4/6 to contend that a sum of Rs. 25,000/- had been received vide bank draft bearing No.290000 on 02.11.1989 and the plaintiff had failed to prove the fact that the said amount had not been credited in her account. Reference was made to the cross-examination of the plaintiff to contend that she had not denied that the draft was existing. Similarly, reference was made to receipts, Exhibit DW-4/2, DW-4/3 dated 20.10.1989 and 25.10.1989 whereby, a sum of Rs. 19,563/- and Rs. 4050/- were paid to HUDA. It was contended that Exhibit DW-4/5 which was the transfer application in favour of defendant No.3, Rachna Jaiswal, the plaintiff had signed at 3 places and (Exhibit DW- 4/6) whereby the receipt of Rs. 25,000/- vide bank draft had been acknowledged the names of G.D.Bansal and O.P.Chahal found mention as witnesses but they were not examined to prove that the plaintiff had not appeared before the officials after getting the transfer effected. Accordingly, it was submitted that the re-allotment was there in favour of Rachna Jaiswal (Exhibit D-4/7) and she was liable to pay the balance 6 instalments of Rs. 3448/- after re-allotment and demand of Rs. 3450/- was raised upon her on 15.01.1990 (Exhibit D-4/8) and she had made the payment of the instalments on 23.01.1990 and vide Exhibit D-4/9. Similarly, on 28.01.1991, pay order of Rs. 3450/- (Exhibit D-4/10) was made to HUDA against instalments and on 24.01.1992, Rs. 3450/- was sent to HUDA against instalments, Exhibit D-4/11 and similar receipts of the payments of Rs. 3450/- were exhibited as Exhibit D-4/12 on 23.01.1990, Exhibit D-4/13 on 24.01.1992, Exhibit D-4/14 on 28.01.1991. Reference was also made to the transfer fees of Rs. 4050/- on 03.12.1992 (Exhibit D- 4/15) in favour of defendant No.2 and and application for transfer by defendant No.3 on 02.12.1992 (Exhibit D-4/17) in favour of the appellant and the affidavit of Rachna Jaiswal (Exhibit D-4/18). Vide letter dated 10.12.1992 (Exhibit D-4/19), defendant No.3 was also permitted to transfer the plot to the appellant in pursuance of the application dated 03.12.1992. Thereafter, letter dated 10.12.1992 whereby defendant No.3, Rachna Jaiswal, had prayed that a final transfer order can be issued along with an affidavit of the appellant wherein he had accepted the allotment (Exhibit D- 4/21) and Rachna Jaiswal had issued a receipt that she had received full consideration from Major Rajender Singh and a sum of Rs. 50,000/- mentioned as full and final payment and other rights in pursuance of the same. The final allotment letter had been issued on 06.01.1993 (Exhibit D- 4/23) in favour of the appellant and accordingly, it was submitted that there was a presumption of truth to the official acts of defendants No.1 and 2 and fraud and collusion was not there. The plaintiff had not approached the appellate authorities even though specifically, names of the property dealers had been mentioned in the written statement and the property dealers had not been made party to substantiate the allegations of fraud.
17. On the contrary, Mr.Chopra, Advocate, counsel for respondent No.1 submitted that there were concurrent findings that the transfer of the plot was made on the basis of fraud and both the Courts below have come to the finding of fact which should not be interfered in a regular second appeal. It was, accordingly, submitted that the appellant could not be termed as a bona fide purchaser and he was not the ostensible owner and protection cannot be granted to him since there was fraud involved and fraud vitiates all acts. Reliance was placed upon a Division Bench judgment of this Court in LPA No. 184 of 2004 titled Subhash Chand and others Vs. The Financial Commissioner Revenue and others decided on 24.12.2008 and Smt.Jangir Kaur and others Vs. Mohinder Singh and others 2007 (4) PLR 268 to contend that defendant No.4 had failed to appear in the witness-box and therefore, an adverse inference should be drawn against him that there was no proof of being a bona fide purchaser and the evidence had been closed by Court order. Reference was made to the written statement filed by defendant No.3, Rachna Jaiswal to contend that money was paid to the property dealers and not paid to the plaintiff but none of the said persons had been produced to prove the said fact. In the application dated 25.10.1989, Exhibit PW-1/4 for transfer of the plot was referred to in which the date of allotment was mentioned as 18.10.1989 whereas in the affidavit (Exhibit PW-1/5) submitted by the plaintiff, the date of allotment was mentioned as 27.01.1989, to contend that wrong dates have been filled up. It was submitted that RSA No.2478 of 2010 filed by Rachna Jaiswal, defendant No.3 had been dismissed on 14.09.2010 for non-prosecution against the same judgment and accordingly, it had become final. The evidence of the defendants had been closed vide Court order dated 26.09.2005 and they had not filed any revision against the same and had accepted the said order and accordingly, it was contended that since the property dealers had not been produced and fraud vitiated everything and the issue of non-joinder had not been pressed by the defendants, therefore, the judgment of the lower appellate Court below was liable to be upheld.
18. The core question that arises for consideration of this Court is whether the plaintiff, Prem Chopra transferred the plot in question to Rachna Jaiswal, defendant No.3 or somebody else impersonated as her and transferred the said plot on her behalf. If the answer is in favour of the plaintiff, then the present appellant, defendant No.4 who is the subsequent purchaser from Rachna Jaiswal and contends that he is a bona fide purchaser, would have no legs to stand on. Keeping in view this material issue which is to be decided, the pleadings of the parties, the evidence laid and the reasonings adopted by the Courts below have to be taken into consideration.
19. The case of the plaintiff is very crystal clear that after the letter dated 03.06.1985, whereby she was informed that she was successful in the draw of lots the formal letter of allotment was not issued and could only be issued after vacation of stay by the Hon'ble Supreme Court. A communication was made on 19.06.1986 that she had shifted her residence. The formal allotment letter after the litigation got cleared was sent on 27.01.1989 vide memo No.785, firstly wherein she was informed that she had been allotted 6 marla plot No.856 in Section 22, Gurgaon and the area was 135 sq.metres. As per this letter, she was to accept the same and pay an amount of Rs. 4138.50 since she had already paid a sum of Rs. 2759/- along with her earlier application, the balance amount of Rs. 20,642.50 was to be paid in instalments. As per the case of defendants No.1 and 2, HUDA itself, the letter came back undelivered in its office (Exhibit D4/1). In the said allotment letter which was received back in the office of the Estate Officer, HUDA, Gurgaon, there is a stamp dated 17.02.1989. Similarly, defendant No.2 again sent the said allotment letter at H.No.21/32, West Patel Nagar, New Delhi vide memo No.1340 dated 24.03.1989 and it was received back on 12.04.1989. It seems after this stage, the fraudulent acts started in the office of defendants No.1 and 2 since it was confirmed that the plaintiff was not residing there and accordingly, letter dated 15.09.1989 was then received in the office of the Estate Officer, HUDA, Gurgaon which was allegedly written by the plaintiff wherein she requested for the issuance of the allotment letter of the said plot at the same address on the ground that she was out of station, therefore, the same could not be delivered to her. This request is undoubtedly received in the Estate office on 15.09.1989 (Exhibit PW1/6). A perusal of this letter goes on to show that the name of the husband of plaintiff was written as Sh.M.L.Chopra after crossing out M.N.Chopra. It is also important to note that in the initial application submitted on 31.10.1989 (Exhibit PW 1/1) for the plot in Section 12-A, Sector 6, Gurgaon, the name of the husband does not find mention nor his initials are there. Similarly, in the subsequent application filed on 20.05.1984 (Exhibit PW 1/2), there is no mention of the initials of the husband. Thus, it would be apparent that whoever filed the said application on behalf of the plaintiff did not know the exact name of the husband of the plaintiff. The initials of the plaintiff's husband are neither M.N.Chopra nor M.L.Chopra but are M.S.Chopra. The signatures on this document also do not seem to be the same as that of the plaintiff if comparison is made with the first application filed on 31.10.1981 (Exhibit PW-1/1) and 20.05.1984 (Exhibit PW-1/2). This fact is also further confirmed by the report of the hand-writing expert, Deepak Jain(Exhibit PW-3/2).
20. Thereafter, letter was received by the Estate Officer, HUDA allegedly from the plaintiff in which the name of the husband, Sh.M.N.Chopra was mentioned wherein she enclosed 2 drafts bearing Nos.141758 and 141759 and dated 11.10.1989 for a sum of Rs. 13,360/- on account of enhancement and Rs. 4138.50 as balance on account of 15% payment plus interest. These were deposited on 20.10.1989 (Exhibit D-4/2) after the amount had been specifically calculated on 14.10.1989 (Exhibit D- 8) along with interest of Rs. 561.50 and Rs. 1503/- although, the allotment letter was only sent on 18.10.1989 vide memo No.2597 obviously in response to the request allegedly sent by the plaintiff dated 15.09.1989 whereas immediately, thereafter, on 20.10.1989, vide 2 pay orders bearing Nos.141758 and 141759 dated 11.10.1989, a sum of Rs. 19,563 was got deposited. The first draft was as per the demand of Rs. 4138.50 made as per the allotment letter whereas the second amount of Rs. 13,360/- was on account of enhancement and the balance was on account of interest. It is, thus, obvious that the pay orders had already been prepared in advance on 11.10.1989 and even prior to the issuance of the allotment letter for the third time. On 25.10.1989, an application for transfer of the plot in favour of Rachna Jaiswal was filed wherein it was mentioned that the allotment letter was dated 18.10.1989. The application was accompanied with pay order of Punjab National Bank drawn on Sukhrali District, Gurgaon, Haryana and was dated 23.10.1989 (Exhibit DW-4/4) for a sum of Rs. 4050/-. The said pay order was deposited on 25.10.1989 vide receipt No.555 with defendant No.2 (Exhibit D-4/3). The plaintiff is again alleged to have submitted an affidavit (Exhibit PW-1/5) in pursuance of her application for transfer of plot to defendant No.3 in which, again her husband's initials was mentioned as M.N.Chopra and the date of allotment was mentioned as 27.01.1989 though in the accompanying application for transfer moved on 25.10.1989, the allotment was mentioned as 18.10.1989 which was the last time, the allotment letter was sent to her. Reference of 27.01.1989 in (Exhibit PW- 1/5) is obviously to the first time the letter was issued vide memo No.8175.
21. Thus, it would be clear that it was somebody else who was filling out the forms for the plaintiff and impersonating as her. The speed with which the transfer has been got processed even before the issuance of the allotment letter for the third time on 18.10.1989 goes on to prove that the allegations of the plaintiff that there was a fraud being played with the help of the officials of defendants No.1 and 2. The submission of the counsel for the appellant that there was no specific allegations, thus, is not acceptable. Para No.7 of the plaint shows that specific instance of the fraud have been mentioned which have been duly substantiated by the above narrated facts in pursuance of the said application for transfer filed on 25.10.1989 and thus fulfill the requirements of Order 4 Rule 6 of the Code of Civil Procedure. Para No.7 of the plaint reads as under:
“7. That the every enquiry made by the plaintiff and her husband in the records of defendant No.2 relating to transfer of plot No.856 of Sector 22, Gurgaon firstly in the name of defendant No.3 and thereafter in the name of defendant No.4, reveals that some other person impersonated herself as a plaintiff and by practising a fraud on the officials of the defendants No.1 and 2 or in collusion with said officials, arranged to get the plot transferred in the name of Defendant No.3. It appears that some racket constituting several persons was formed by some persons in order to get the plot fraudulently transferred by making impersonating another lady in place of plaintiff. The plaintiff also contacted defendant No.3 and enquired about the name of the person who transferred the said plot in her name but she could not tell or disclose the name of such person and she told that in fact the whole transfer proceedings were handled by some property dealer but she refused to disclose the name of the said property dealer.”
The allotment letter was issued on 08.11.1989 (Exhibit D-4/7) whereby Rachna Jaiswal, defendant No.3 was asked to pay the sixth instalment totaling to Rs. 20,692.50 as per the original allotment letter. Thus, the concurrent findings of the Courts below that there was a fraud which had been effected against the plaintiff cannot be but approved.
22. The submission of the counsel for defendant No.4, the present appellant that there was silence and delay of 10 long years after 1985 is of no avail once there was impersonation and transfer was effected on the basis of fraud. The Hon'ble Apex Court in S.P Chengalvaraya Naidu (dead) by LRs and others Vs Jagannath 1994 (1) SCC 1 has held that fraud vitiates all action. The said view has been approved by the Hon'ble Apex Court in Hamza Haji vs State Of Kerala and Anr 2006 (7) SCC 416 wherein it has been held in principle that a party who has acquired benefits by fraud should not be allowed to enjoy the fruits thereof. Defendant No.4 might not be party to the fraud and is setting up title only on the ground of being a bona fide purchaser from defendant No.3 but defendant No.3 has specifically taken the plea that she had purchased the property in question through property dealers namely G.D.Bansal and O.P.Chahal and even made payments to them. Exhibit D-4/6 which is the receipt of sum of Rs. 20,000/- by way of bank drafts No.290000 dated 02.11.1989 which has allegedly been received by the plaintiff and was witnessed by 2 persons, signatures of one finds mention at serial No.1 whereas the other person is mentioned as Om Prakash Chahal. This substantiates the plea raised by the plaintiff that there was a racket in the office of defendant No.2 whereby the property was got transferred with the help of the said property dealers which is admitted in the written statement by defendant No.3 that the help of the said property dealers was taken. Defendant No.3 or her husband had not even appeared in the witness-box to depose that it was none other than the plaintiff who had signed the transfer application and given the affidavit for transfer and received the payment. Thus, the plaintiff has been able to prove her case that it was a fraudulent transaction based on impersonation. She has deposed about the said facts in the witness-box and produced the handwriting expert to prove her case and both the Courts below have concurrently found this aspect to be true and this Court has also seen the records and come to the conclusion that the Courts below were correct in recording such a finding. The contention of the counsel for the appellant that he was a bona fide purchaser and deserves protection under Section 41 of the Transfer of Property Act, 1882 cannot be accepted. Section 41 of the Transfer of Property Act, 1882 reads as under:
“41. Transfer by ostensible owner
Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it:
PROVIDED that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.”
23. To attract the provisions of the said section, a person has to be the ostensible owner of the said property and transfer the same for consideration. In the present case, as noticed above, defendant No.3 was never the ostensible owner at any stage and therefore, defendant No.4 cannot draw any strength on the said provision. It is also pertinent to note that defendant No.4, the present appellant never appeared as a witness in the said case and therefore, an adverse inference has to be drawn against him. The defendants were given sufficient opportunity from 30.09.2004 and apart from partly examining the hand-writing expert and one official witness, no other witness was examined and the evidence was finally closed by order on 31.09.2005, after a period of one year. Defendant No.4 was well aware regarding the name of the property dealers who had assisted in the transfer and could have produced the said persons to controvert the case of the plaintiff that she had not signed the transfer documents and never deposited the balance 15% along with the enhanced cost of interest. No effort has also been made to prove that the pay orders initially deposited were also withdrawn from the account of the plaintiff by producing any bank officials even though the pendulum of the plaintiff's case had swung against the defendants. The plaintiff was never able to cross-examine defendant No.4 on the said issue as he never appeared as a witness and therefore, he cannot take this plea of being protected as a bona fide purchaser and take the said defence that the transfer was by the HUDA officials in pursuance of their official duties and that the appellant was entitled for protection. This Court in Smt.Jangir Kaur (supra) has held as under:
14. I have considered the arguments raised by the learned Counsel for the appellants and find no force in the same. It is not in dispute that one of the sale in favour of the appellant defendants was executed after the filing of the suit. The contention of the learned Counsel for the appellants that it was prior to the receipt of notice can be of no avail as it cannot be said in that situation that steps were taken by the appellants to verify the title of the vendor. The learned courts below were right in drawing an inference against the appellant-defendants as the defendant-appellants failed to appear in the witness box to assert the factum of knowledge and search and, therefore, in view of submissions made by the learned Counsel for the respondents it cannot be said that the findings recorded by the learned Courts below are perverse as is sought to be contended by the learned Counsel for the appellants.
15. The learned Courts below were, therefore, right in coming to the conclusion that appellants-defendant had failed to prove that they were bonafide purchaser for consideration without notice. In view of the finding recorded above, the questions as framed in this appeal are answered against the appellants.
24. Thus, keeping in view the principle laid down in Gulu Ram Vs. Chief Secretary, Haryana Government 1997 (3) PLR 478 that no person can confer a better title then he has and no title can be created in favour of the appellant and keeping in view the dictum laid down by this Court in Subhash Chand (supra) wherein it has been held “that after the allotment in favour of vendors of the appellants is cancelled, the appellants cannot claim to be the bona fide purchasers for its value and consideration. The only remedy available to the appellants, assuming the appellants to be purchasers for consideration, is to sue their vendors for recovery of the sale consideration.” This right has been given to the present appellant and it has been directed that whatever amounts were deposited towards the price of the plot will be refunded by the plaintiff and the amount which has been paid shall be paid back by defendant No.3 to defendant No.4 with interest. As noticed, the appeal of defendant No.4 as RSA No.2478 of 2010 has already been dismissed on 14.09.2011 for non-prosecution and even in the present appeal, she was proceeded against ex parte vide order dated 21.07.2010. The judgment in Jagan Nath (supra) only lays down the principle of a bona fide purchaser for value and without notice and settles that it is a question of fact in each case which has to be taken into consideration and thus, is of no help to the appellant. Similarly, Anup Singh (supra) again lays down the principle that while dealing with the agricultural land, the prospective buyer is only to see that the revenue record was correct and he was not expected to meet each and every person of the family. In the present case, as noticed above, in view of the peculiar facts that there has been impersonation, the said judgment will have no applicability. In Crystal Developers (supra), the Hon'ble Apex Court was again examining the issue as to whether defendant No.4 was a bona fide purchaser with value without notice and whether the subsequent alienation in favour of defendant Nos.15 to 20 was valid and binding and whether the sale effected in pursuance of probate which was granted and held to be valid, though the probate was revoked subsequently. In the judgment in Manga Singh (supra), the Court came to the conclusion that the appellant was a bona fide purchaser without notice since he did not have any knowledge that there was any previous sale deed which was earlier effected and not reflected in the revenue records.
25. Once the plaintiff has discharged the initial onus by appearing in the witness-box and standing by her case and bringing on record the opinion of the hand-writing expert that the disputed signatures were not signed by her, the onus shifted upon the defendants to prove to the contrary and they have miserably failed to prove that it was not anybody else but the plaintiff who had herself transferred the plot. At the cost of repetition, it is to be noticed that defendant No.3 and her husband did not appear in the witness-box to state so and neither defendant No.4 also made any effort to prove that the plaintiff had received a sum of Rs. 25,000/- by way of bank drafts which is mentioned in Exhibit PW4/6 bearing Nos.290000 dated 02.11.1989 to discredit the plaintiff. This fact could have been proved by summoning the bank record to show whether the amount had been credited in the account of the plaintiff or not. Once the defendants themselves have been lax in prosecution of their case, now, they cannot try to punch imaginary holes in the case of the plaintiff and contend that there was delay and silence on her part till 1995. The plaintiff was the owner of the plot in question and continued to be so since the plot was never cancelled in her name and therefore, she was entitled to the declaration that she was the owner and transfer was illegal and void. The submission made that there was a cutting in the date regarding the request for change of address which was sent on 19.05.1986 (Exhibit P-2/4) which has been sent by UPC and should have been sent through registered AD post is also of no avail since it is not the cancellation of the plot by the official defendants on account of non-payment which is under consideration. Even if the said request was sent wrongly, it was the duty of the officials of defendants No.1 and 2 to ensure that the proper verification was done before the transfer was got effected of the immoveable property. It has already been noticed the haste with which the property was transferred and the sequence of events which ensures that the factum of fraud took place.
26. Accordingly, in the absence of any question of law arising for consideration before this Court, the findings recorded by the trial Court and as modified by the lower appellate Court on the issue of bona fide purchaser are upheld. The appeal is accordingly, dismissed and the parties are left to bear their own costs.