# Rajesh Chhabra v. Radhey Lal Jeswani & Ors

- **Citation:** (2025) 9 ILRA 191
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-16
- **Case number:** First Appeal No. 60 of 2011
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-chhabra-v-radhey-lal-jeswani-ors-53885
- **Pages:** 48

## Headnote

Arvind Srivastava, Ashish Kumar Singh,
Hari Manish Bahadur Sinha, Jitendra Kumar
Srivastava, Pushkar Srivastava, Ram Dayal
Tiwari, Udayan Nandan

Issue for Consideration
Matter pertains to whether the ex parte decree
dated 31.03.1999 passed in Original Suit No. 28
of
1996,
which
declared
ownership
and
possession of Bungalow No. 329, Jhokan Bagh,
Jhansi in favour of plaintiff's father, operated as
res judicata regarding title and possession of
disputed property, or whether it could be
impeached
in
present
proceedings
as
a
fraudulent and collusive decree obtained against
a minor not duly represented before the court.

Headnotes
Uttar Pradesh Urban Buildings (Regulation
Of Letting, Rent And Eviction) Act, 1972 -
s. 21 - Specific Relief Act, 1963 - ss. 34, 38
and 41(h) - Code of Civil Procedure, 1908
- s. 10, O. 9 R. 13 - Limitation Act, 1963 -
s. 6 - Guardian and Wards Act, 1890 - s. 39
- Appellant filed a civil suit seeking
declaration of ownership and possession
over Bungalow No. 329, Jhokan Bagh,
Jhansi, contending that property originally
belonged to his grandfather who had
constructed it and remained its absolute
owner - Upon his grandfather death,
property devolved upon his son, i.e.
appellant's father - Appellant alleged that
ex parte decree dated 31.03.1999, passed
in Original Suit declaring ownership and
possession in favour of his father, was
fraudulent and collusive, having been
obtained when appellant was minor and
without proper representation through a
court-appointed guardian - It was further
asserted that, taking advantage of said
decree, defendants attempted to interfere
with appellant's lawful possession and
alienate portions of property - Defendants
denied these allegations, asserting that ex
parte decree was valid, conclusive and
operated as res judicata between the
parties - Trial court dismissed plaintiff's
suit, upholding binding nature of 1999
decree, leading appellant to prefer the
instant
First
Appeal
u/s
96
C.P.C.,
challenging validity of decree on grounds
192 INDIAN LAW REPORTS ALLAHABAD SERIES
of fraud, non-representation and lack of
jurisdiction.

Held: Previously Mangal Sen Chhabra and
subsequently, plaintiff is the true owner of
disputed house - It is also apparent that
regarding eviction of tenants from disputed
house, Rent Control Appeal is pending - It is
also apparent that tenants Samson William and
Morris William are residing in property, who
have allegedly handed over vacant possession of
tenanted accommodation to defendants who are
not true owner's of disputed house - Tenants
were bound to handover vacant possession of
tenanted accommodation to their landlord or
true owner of disputed house - In such
circumstances, it will be deemed that plaintiff is
in lawful possession of disputed house, through
tenants, who is entitled to relief of permanent
injunction against defendants - In these
circumstances, trial court erred in concluding
that plaintiff 's suit was barred by s. 34, 38 and
41(h) of Specific Relief Act - Plaintiff is the true
owner of disputed house - Defendants had no
concern with this property, but they had illegally
executed several sale deeds on 15.5.2006,
which were registered on 20.7.2006, in favour of
other defendants in suit, which are void abinitio, which are not binding on plaintiff - The
plaintiff has claimed that by declaratory decree
of court, sale deeds executed by defendants in
favour of other defendants be declared null and
void, not binding on plaintiff and further,
defendants be restrained from interfering,
alienating,
demolishing,
constructing
or
transferring the disputed property - Trial court
erred in dismissing plaintiff 's suit for declaration
and permanent injunction - Accordingly, both
the appeals allowed. [Paras 116, 124] (E-13)

Case Law Cited
R.
Unnikrishnan
and
another
v.
V.K.Mahanudevan and others, (2014)4 SCC
434; Vaijinath v. Afsar Begum, (2020) 15 SCC
128; Baldev Singh v. Surinder Mohan Sharma
and others, (2003) 1 SCC 34;

## Text

_Characters 0–39,664 of 163,079. This is a partial read: ask again with offset=39664 for what follows._

9 All. Rajesh Chhabra Vs. Radhey Lal Jeswani & Ors.
191

(ii)
The
appellant
will
not
pressurize/
intimidate
the
prosecution
witness.

(iii) The appellant will appear
before the trial court on the date fixed,
unless personal presence is exempted.

(iv) The appellant shall not
commit an offence similar to the offence of
which he is accused, or suspected, of the
commission of which he is suspected.

(v) The appellant shall not
directly or indirectly make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the Court
or to any police officer or tamper with the
evidence.

11. In case of breach of any of the
above conditions, the prosecution shall be
at liberty to move bail cancellation
application before this Court.
----------
(2025) 9 ILRA 191
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.09.2025

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 60 of 2011
&
First Appeal No. 70 of 2011

Rajesh Chhabra ...Appellant
Versus
Radhey Lal Jeswani & Ors. ...Respondents

Counsel for the Appellant:
K.K. Tiwari, Rishikesh Tripathi

Counsel for the Respondents:
Arvind Srivastava, Ashish Kumar Singh,
Hari Manish Bahadur Sinha, Jitendra Kumar
Srivastava, Pushkar Srivastava, Ram Dayal
Tiwari, Udayan Nandan

Issue for Consideration
Matter pertains to whether the ex parte decree
dated 31.03.1999 passed in Original Suit No. 28
of
1996,
which
declared
ownership
and
possession of Bungalow No. 329, Jhokan Bagh,
Jhansi in favour of plaintiff's father, operated as
res judicata regarding title and possession of
disputed property, or whether it could be
impeached
in
present
proceedings
as
a
fraudulent and collusive decree obtained against
a minor not duly represented before the court.

Headnotes
Uttar Pradesh Urban Buildings (Regulation
Of Letting, Rent And Eviction) Act, 1972 -
s. 21 - Specific Relief Act, 1963 - ss. 34, 38
and 41(h) - Code of Civil Procedure, 1908
- s. 10, O. 9 R. 13 - Limitation Act, 1963 -
s. 6 - Guardian and Wards Act, 1890 - s. 39
- Appellant filed a civil suit seeking
declaration of ownership and possession
over Bungalow No. 329, Jhokan Bagh,
Jhansi, contending that property originally
belonged to his grandfather who had
constructed it and remained its absolute
owner - Upon his grandfather death,
property devolved upon his son, i.e.
appellant's father - Appellant alleged that
ex parte decree dated 31.03.1999, passed
in Original Suit declaring ownership and
possession in favour of his father, was
fraudulent and collusive, having been
obtained when appellant was minor and
without proper representation through a
court-appointed guardian - It was further
asserted that, taking advantage of said
decree, defendants attempted to interfere
with appellant's lawful possession and
alienate portions of property - Defendants
denied these allegations, asserting that ex
parte decree was valid, conclusive and
operated as res judicata between the
parties - Trial court dismissed plaintiff's
suit, upholding binding nature of 1999
decree, leading appellant to prefer the
instant
First
Appeal
u/s
96
C.P.C.,
challenging validity of decree on grounds
192 INDIAN LAW REPORTS ALLAHABAD SERIES
of fraud, non-representation and lack of
jurisdiction.

Held: Previously Mangal Sen Chhabra and
subsequently, plaintiff is the true owner of
disputed house - It is also apparent that
regarding eviction of tenants from disputed
house, Rent Control Appeal is pending - It is
also apparent that tenants Samson William and
Morris William are residing in property, who
have allegedly handed over vacant possession of
tenanted accommodation to defendants who are
not true owner's of disputed house - Tenants
were bound to handover vacant possession of
tenanted accommodation to their landlord or
true owner of disputed house - In such
circumstances, it will be deemed that plaintiff is
in lawful possession of disputed house, through
tenants, who is entitled to relief of permanent
injunction against defendants - In these
circumstances, trial court erred in concluding
that plaintiff 's suit was barred by s. 34, 38 and
41(h) of Specific Relief Act - Plaintiff is the true
owner of disputed house - Defendants had no
concern with this property, but they had illegally
executed several sale deeds on 15.5.2006,
which were registered on 20.7.2006, in favour of
other defendants in suit, which are void abinitio, which are not binding on plaintiff - The
plaintiff has claimed that by declaratory decree
of court, sale deeds executed by defendants in
favour of other defendants be declared null and
void, not binding on plaintiff and further,
defendants be restrained from interfering,
alienating,
demolishing,
constructing
or
transferring the disputed property - Trial court
erred in dismissing plaintiff 's suit for declaration
and permanent injunction - Accordingly, both
the appeals allowed. [Paras 116, 124] (E-13)

Case Law Cited
R.
Unnikrishnan
and
another
v.
V.K.Mahanudevan and others, (2014)4 SCC
434; Vaijinath v. Afsar Begum, (2020) 15 SCC
128; Baldev Singh v. Surinder Mohan Sharma
and others, (2003) 1 SCC 34; Kameshwari
Devi (SMT) alias Kaleshwari Devi and others v.
Barhani (SMT) dead by LRS. and others,
(1997)10 SCC 273; Asharfi Lal v. Smt.Koili
(Dead) through Lrs, (1995) 4 SCC 163 (by 3
Judges); Ramesh B.Desai and others v. Bipin
Vadilal Mehta and others, (2006)5 SCC 638;
Anathula Sudhakar v. P. Buchi Reddy (Dead) by
Lrs. and others, (2008)4 SCC 594; S.K.Sattar
Sk. Mohd.Choudhari v. Gundappa Amabadas
Bukate, AIR 1997 SC 998; Hussain Ahmed
Choudhury & Ors. v. Habibur Rahman(Dead)
through Lrs. & Ors. , 2025 SCC Online SC
892 - referred to

Pushpalata v. Vijay Kumar(dead) through Lrs.
and others, 2022 SCC OnLine SC 1152;
Mohammade Yusuf and others v. Raj Kumar and
others, (2020)10 SCC 264 - relied on

Venkataraja
&
others
v.
Vidyane
Doureradjaperumal, (2014) 14 SCC 502;
Vasantha (Dead) through LR v. Rajalakshmi@
Rajam(Dead) through Lrs, 2024 INSC 109;
Mallavva
and
another
v.
Kalsammanavara
Kalamma (Since Dead) by Lrs and others, 2024
INSC 1021; Rajeev Gupta and others v.
Prashant Garg and others, 2025 INSC 552 -
distinguished

List of Acts
Uttar Pradesh Urban Buildings (Regulation Of
Letting, Rent And Eviction) Act, 1972; Specific
Relief Act, 1963; Code of Civil Procedure, 1908;
Limitation Act, 1963; Guardian and Wards Act,
1890.

List of Keywords
First Appeal u/s 96 C.P.C.; Ex parte decree;
Declaratory
relief;
Permanent
injunction;
Ownership and possession; Bungalow No. 329,
Jhokan
Bagh,
Jhansi;
Collusive
decree;
Fraudulent
decree;
Joint
Hindu
family
property;
Minor
not
duly
represented;
Guardian
ad
litem;
Void
and
illegal
document; Orally partitioned; Registered sale
deed; Challenge to validity of decree;
Jurisdiction of Civil Court; Legal heirs; Res
judicata u/s 11 C.P.C.; Binding effect and
finality of decree; Bar of subsequent suit;
Fraud
vitiates
proceedings;
Misrepresentation and suppression of facts;
Material
illegality;
Jurisdictional
error;
Unsustainable in the eye of law; Setting
aside of decree; Restoration of suit; Original
record to be transmitted to trial court.

Case Arising From
APPELLATE JURISDICTION: First Appeal No. -
60 of 2011 Connected with First Appeal No. - 70
of 2011
9 All. Rajesh Chhabra Vs. Radhey Lal Jeswani & Ors.
193
From
the
Judgment
and
Decree
dated
9.12.2010 passed by the Court of Sri. Rajat
Singh Jain, Additional District Judge/Special
Judge (EC Act), Jhansi in O.S. no. 129 of 2005.

Appearances for Parties
Advs. for the Appellant:
K.K. Tiwari, Rishikesh Tripathi

Advs. for the Respondent:
Arvind Srivastava, Ashish Kumar Singh, Hari
Manish
Bahadur
Sinha,
Jitendra
Kumar
Srivastava, Pushkar Srivastava, Ram Dayal
Tiwari, Udayan Nandan

(Delivered by Hon'ble Sandeep Jain, J.)

1. First Appeal no. 60 of 2011 has
been filed by the plaintiff - appellant
against
judgment
and
decree
dated
9.12.2010 passed by the court of Sri. Rajat
Singh
Jain,
Additional
District
Judge/Special Judge(EC Act), Jhansi in
O.S. no. 129 of 2005 Rajesh Chhabra
versus Radhey Lal Jeswani and others,
whereby the plaintiffs suit for the relief of
declaration, for declaring void agreement to
sell dated 20.4.2005, executed by defendant
no.2 &3, in favour of defendant no.1,
regarding bungalow no. 329, Jhokan Bagh,
Jhansi and suit for the relief of permanent
injunction, for restraining the defendants
from demolishing, alienating, transferring,
altering the above bungalow, has been
rejected.

2. First appeal No. 70 of 2011 has
been filed by the plaintiff - appellant
against
judgment
and
decree
dated
9.12.2010 passed by the court of Sri. Rajat
Singh
Jain,
Additional
District
Judge/Special Judge(EC Act), Jhansi in
O.S. no. 365 of 2006 Rajesh Chhabra
versus Radhey Lal Jeswani and others,
whereby the plaintiffs suit for the relief of
declaration, for declaring void registered
sale deeds dated 15.05.2006 registered on
20.07.2006,
executed
by
Smt.Savita
Chhabra and Rishav Chhabra, in favour of
defendant
no.1,2,3,4&5,
regarding
bungalow no. 329, new no. 1358, Jhokan
Bagh, Jhansi and suit for the relief of
permanent injunction, for restraining the
defendants from interfering, demolishing,
alienating, transferring, altering the above
bungalow, has been rejected.

3. Both the original suit no. 129 of
2005 and 365 of 2006 were consolidated by
the trial court, and decided by the common
judgment and decree dated 9.12.2010,
aggrieved against which, the plaintiff -
appellant has filed the above two appeals,
which have been tagged and heard together
and are being disposed by this common
judgment.

Facts of O.S.no.129 of 2005

4. The suit was filed by the plaintiff -
appellant with the averments that disputed
house no. 329(old no.), new no. 967,
present no.1358, Jhokan Bagh,Civil Lines,
Jhansi was the property of Late Sardari Lal
Chhabra, which was purchased by him in
the name of his minor son Vinay Chhabra,
in the year 1965. Vinay Chhabra died on
24.11.1987, leaving behind defendant no.2
his wife Smt. Savita Chhabra and defendant
no.3 his son Rishav Chhabra, as his legal
heirs.

5. It was averred by the plaintiff that
when the disputed house was purchased by
late Sardari Lal, then at that time mother of
defendant no.4 and 5 Smt. H. William was
the tenant in the disputed house, who has
died, and after her death defendant no. 4 and
5 have become tenants in the disputed house.

6. It was averred by the plaintiff that
since the properties left behind by late
194 INDIAN LAW REPORTS ALLAHABAD SERIES
Sardari Lal belonged to the joint Hindu
family of his sons, as such, in the year
1980, a partition took place between the
heirs of late Sardari Lal, in which, the
disputed house devolved upon the father of
the plaintiff Mangal Sen Chhabra. Since,
some heirs of deceased Sardari Lal
Chhabra, refused to accept the family
partition, as such, the plaintiff 's father
Mangal Sen Chhabra filed suit no. 28 of
1996 Mangal Sen Chhabra versus Ramjeet
Chhabra and others, for the relief of
declaration, before the court of Civil
Judge(Senior Division), Jhansi in which the
present defendants no.2&3, were arrayed as
defendant no.6&7. Suit No. 28 of 1996 was
decreed on 31.3.1999 in favour of paintiff's
father Mangal Sen Chhabra and as such, he
was declared the owner in possession of
disputed house no. 329 and it was also
made clear, that the other defendants had
no right, title or interest in the disputed
house.

7. It was averred by the plaintiff, that
after suit no. 28 of 1996 was decreed, the
defendants no.2&3(of this suit) filed
miscellaneous application no.125 of 1999
under Order 9 Rule 13 CPC, which was
also dismissed on merits on 27.7 2001,
which
was
also
challenged
by
the
defendant no.2&3, by filing Miscellaneous
Appeal No. 66 of 2001 before the court of
Special Judge/SCC, Jhansi, which was also
dismissed on 30.7.2004, and such, the
decree passed in O.S. no. 28 of 1996 dated
31.3.1999 remained effective and the
defendants no.2&3 were bound by that
decree.

8. It was further averred by the
plaintiff
that,
subsequently
regarding
disputed house no. 329, a family partition
took place between his father Mangal Sen
Chhabra and him in November, 1995, in
which, house no. 329 came to his share, in
which defendant no.4&5 were residing as
tenants, who thereafter, became tenants of
the plaintiff. The plaintiff was residing
since, the year 1995 in house no. 292, Issai
Tola,Khatibaba,Jhansi.
It
was
further
averred that in the decree passed in O.S. no.
539 of 2000 Mangal Sen Chhabra versus
Rajesh Chhabra, by the court of Civil
Judge(Jr Division) Jhansi, it was declared
that the plaintiff was the owner of the
disputed house no. 329, which has got no
concern with plaintiff's father.

9. It was further averred by the
plaintiff that since the disputed house was
required by him for his residential needs, as
such, he had filed P.A.case no.8 of 2002
Rajesh Chhabra versus Samson William
under section 21 of the UP Act no. 13 of
1972,
in
the
court
of
Prescribed
Authority/Civil Judge(Jr Division), Jhansi
against tenant/defendant no.4&5, which
was pending for disposal.

10. It was further averred by the
plaintiff that, his father Mangal Sen
Chhabra, in the lifetime of defendant
no.2&3's predecessor Vinay Chhabra, had
filed P.A.Case No. 65 of 1986 under
section 21 of UP Act. no. 13 of 1972
,against defendant no.4&5, in which Late
Vinay Chhabra had filed his affidavit dated
16.12.1986 in which, he had accepted the
family partition and had further stated that
the disputed house no. 329 belonged to
plaintiff's father Mangal Sen Chhabra and
Vinay Chhabra, had no concern with the
disputed house.

11. It was further averred by the
plaintiff that the above facts proved that, he
was the undisputed owner and landlord of
house no. 329 and, as such, defendant no.2
&3, had no concern with the disputed
9 All. Rajesh Chhabra Vs. Radhey Lal Jeswani & Ors.
195
bungalow. It was also averred that
defendant no.1 very well knew that plaintiff
was the owner of the disputed house and
the defendant no.2&3 had no concern with
the above house.

12. The plaintiff became aware that an
agreement to sell dated 20.4.2005 was
executed by defendant no.2&3 in favour
of defendant no.1, in which he was not
a party, a consideration of which was
shown to be ₹ 22 lakhs ,which was a
void document, because the defendant
no. 2 and 3 had no right title and
interest in the disputed house after the
decree was passed in O.S. no. 28 of
1996. It was further alleged that the
defendant no.4&5 were also indirectly
involved in the above agreement to sell.
It was further alleged that subsequently,
many sale deeds were executed on
20.7.2006 in favour of defendant no.
6,7 and 8, which were null and void.
With these submissions, the plaintiff
sought the following reliefs from the
court:-

(i) by decree of declaration
granted in favour of the plaintiff against the
defendants,
it
be
declared
that
the
agreement to sell dated 20.4.2005 executed
by
defendant
no.2&3
in
favour
of
defendant no.1, sale deed dated 20.7.2006
executed by defendant no.2&3 in favour of
defendant no.1,6,7&8 are null and void,
which do not affect the rights of the
plaintiff in disputed house no. 329.

(ii) by decree of permanent
injunction granted in favour of the plaintiff
against the defendants, the defendants be
restrained from demolishing the disputed
bungalow no. 329, plotting it, alienating it,
transferring it or interfering in the peaceful
possession of the plaintiff.

Written Statement of defendant
no.1&2

13. The defendant no.1 Radhey Lal
Jeswani and defendant no.2 Smt.Savita
Chhabra in their joint written statement
accepted that Vinay Chhabra died on
24.11.1987, leaving behind his wife Savita
Chhabra and son/defendant no.3 Rishav
Chhabra. It was specifically averred that
the plaintiff was never the owner and
landlord of the disputed house no. 329 as
such, the plaintiff had no cause of action to
file the instant suit. It was further averred
that previously for getting the disputed
house vacated, the plaintiff had filed SCC
suit no. 118 of 1996 Rajesh Chhabra and
Mangal Sen Chhabra versus Samson
William and others in the Court of Judge
Small Causes, Jhansi, which was contested
by defendant no.1&2, the suit was
dismissed on 16.8.2003, in which the
plaintiff was not accepted as the landlord of
the disputed house. It was also held by the
court that there was no relationship of
landlord
and
tenant
between
Rajesh
Chhabra/ Mangal Sen Chhabra and Samson
William/Morris William.

14. It was further averred that the
disputed house was purchased by Vinay
Chhabra through his father, by a registered
sale deed in the year 1965 and had also,
obtained its possession. At that time, Vinay
Chhabra was minor and after his death, his
wife and son, became the owners in
possession of the disputed house. It was
further submitted that in case number 118
of 1996 Vinay Chhabra's wife and minor
son had submitted their written statement,
in which, they had alleged that Rajesh
Chhabra and Mangal Sen Chhabra had no
right to institute suit number 118 of 1996
because, they were neither the owner nor
landlords.
196 INDIAN LAW REPORTS ALLAHABAD SERIES

15. It was further submitted that the
disputed house was purchased by late
Sardari Lal for the benefit of his minor son
Vinay Chhabra, by registered sale deed
executed in the year 1965. It was further
alleged that recently Rishav Chhabra had
attained majority. Smt. H. William was the
tenant of Vinay Chhabra, and after her
death, defendant no.4&5 became tenants in
the disputed house, who had handed over
the
possession
of
the
tenanted
accommodation to the defendant no.2&3,
prior to the filing of the suit, as such,
defendant no.2&3 were the owners in
possession of the disputed house.

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

17. It was further averred by them that
the High Court in its order dated 31.7.1995
had not accepted plaintiff 's father Mangal
Sen Chhabra, as the owner of the disputed
house and due to this finding, Mangal Sen
Chhabra's release application under section
21 of the UP Act no. 13 of 1972, was
rejected. The High Court also did not accept
in its above order, the alleged consent of the
brothers. It was also alleged that the
defendants were not bound by the decree
passed in O.S. No. 539 of 2000 Mangal Sen
Chhabra versus Rajesh Chhabra, by the court
of Civil Judge(Jr Division), Jhansi because it
was a collusive decree. Further, Mangal Sen
Chhabra was not the owner of the disputed
house as such, no question arises of Rajesh
Chhabra being the owner of the disputed
house . The alleged partition that took place
in the year 1995, between Rajesh Chhabra
and Mangal Sen Chhabra, was illegal and
fraudulent, which was void. It was further
averred that P.A. case no.8 of 2002 Rajesh
Chhabra versus Samson William and others,
under section 21 of the UP Act no. 13 of
1972, was pending. In P.A. case no. 65 of 1986,
no affidavit was sworn by late Vinay Chhabra in
favour of Mangal Sen Chhabra on 16.12.1986,
the affidavit submitted by Mangal Sen Chhabra
was fraudulent which was evident from the order
dated 31.7.1995 passed by the High Court. The
defendants accepted that agreement to sell dated
20.4.2005 was executed by defendant no.2&3 in
favour of defendant no.1, for a consideration of ₹
2 Lacs, which was a valid document. It was
denied that any sale deed regarding the disputed
house was executed by them on 20.4.2005. It
was further alleged that the plaintiff had no cause
of action to file the present suit. The suit was
barred by section 34, 38 and 41(h) of the Specific
Relief Act, the suit was undervalued and the
court fees paid was insufficient, the plaintiff was
bound by the decree dated 16.8.2003 passed by
the court of JSCC,Jhansi in case no. 118 of 1996
Rajesh Chhabra and Mangal Sen Chhabra versus
Samson William and others. With these
submissions it was prayed that the plaintiffs suit
be dismissed.

Written
Statement
of
defendants no.6 to 9

18. It was accepted by the defendants
that the disputed house was purchased in
9 All. Rajesh Chhabra Vs. Radhey Lal Jeswani & Ors.
197
the name of minor Vinay Chhabra, by his
father, late Sardari Lal Chhabra by sale
deed dated 12.1.1965 and after the death of
Vinay Chhabra, defendant no.2&3 being
the legal heirs of Vinay Chhabra, became
the owners in possession of the disputed
house. It was also alleged that in the year
1965 Smt. H. William was the tenant in the
disputed house, and after her death, her
sons defendant no.4&5 became tenants in
the disputed house. It was further alleged
that the declaratory decree passed in suit
no. 28 of 1996 was null and void, which
was not binding on defendant no.2&3. It
was also alleged that regarding disputed
house, in proceedings under section 21 of
UP Act no. 13 of 1972, which was filed by
Mangal Sen Chhabra against Smt. H.
William and her legal heirs,was challenged
in Civil Misc. Writ Petition no. 2387 of
1990 Smt. H. William versus First
Additional District Judge Jhansi, which
was decided by the High Court on
31.7.1995, in which, it was not accepted
that a family partition took place in the year
1980 between the parties. It was also held
that Mangal Sen Chhabra was not the
owner in possession of the disputed house.

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

20. On the basis of the pleadings of the
parties, the following issues were framed
by the trial court:-

(i) Whether on the basis of
grounds mentioned in the plaint the
agreement to sell dated 20.4.2005 and four
sale deeds dated 15.5.2006 were liable to
be declared null and void?

(ii) Whether the plaintiff was
owner in possession of bungalow no.
329,Jhokan Bagh, Jhansi on the basis of
grounds mentioned in the plaint?

(iii)
Whether
the
suit
was
undervalued and the court fee paid was
insufficient?

(iv) Whether the suit was barred
by sections 34, 38 and 41(h) of the Specific
Relief Act?

(v) Whether the proceedings of
the suit was liable to be stayed under
section 10 of CPC as alleged in para 34 of
WS 133A -1 ?

(vi)Whether the plaintiff was
entitled to any relief, if any?

O.S.No 365 of 2006
198 INDIAN LAW REPORTS ALLAHABAD SERIES

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

22. It was also averred that previously
in SCC Revision No. 67 of 2003 Rajesh
Chhabra versus Samson William, the
plaintiff was held to be the owner and
landlord of the disputed house. The
plaintiff sought the following reliefs:-

(i) by declaratory decree granted
in favour of the plaintiff against the
defendants, the registered sale deeds
executed by Smt. Savita Chhabra and
Rishav Chhabra in favour of defendant
no.1,2,3,4 & 5 executed on 15.05.2006
registered on 20.7.2006, regarding the
disputed house, be declared null and void.

(ii) by decree of permanent
injunction granted in favour of the plaintiff
against the defendants, the defendants be
restrained from interfering in the peaceful
possession and vested rights as landlord, in
disputed
house
no.
329,
new
no.
1358,Jhokan Bagh,Jhansi.

Written
Statement
of
defendants

23. It was accepted by the defendants
that the disputed house was purchased
wayback in the year 1965 by Sardari Lal, in
the name of his son Vinay Chhabra, and
after the death of Vinay Chhabra on
24.11.1987, the ownership of the house
devolved on his legal heirs, his wife
Smt.Savita
Chhabra
and
son
Rishav
Chhabra. It was also accepted that in the
disputed house Smt. H. William was a
tenant and after her death, her legal heirs
became tenant's in the disputed house. It
was also alleged that against the decision
dated 23.12.2005 in SCC Revision No. 67
of 2003 Rajesh Chhabra and another versus
Samson William and others, passed by the
court of First Additional District Judge
Jhansi, Writ Petition had been filed in the
High Court, which was pending for
disposal. It was also accepted that through
4
sale
deeds
dated
20.7.2006,
the
defendants purchased the disputed house
and were in possession of the disputed
house.

24. It was also averred by the
defendants that the plaintiff never remained
the owner in possession of the disputed
house.Also,
Smt.
H.
William
never
remained tenant of plaintiff or his father
Mangal Sen Chhabra. It was also averred
that after the death of Smt. H. William, her
sons Samson William and Morris William
never remained tenant of Mangal Sen
Chhabra and Rajesh Chhabra, and Mangal
Sen Chhabra and Rajesh Chhabra were
neither accepted as landlords by Morris
William and Samson William nor any rent
was paid by them, to Rajesh Chhabra and
Mangal Sen Chhabra. It was further alleged
that the plaintiff was not in possession of
the disputed house, instead, the defendants
were the owner in possession. The plaintiff
had not claimed the relief of possession,
hence plaintiff's suit was barred by section
34, 38 and 41(h) of the Specific Relief Act.
The plaintiff had not claimed the relief of
cancellation of the sale deeds dated
9 All. Rajesh Chhabra Vs. Radhey Lal Jeswani & Ors.
199
20.7.2006 as such, by declaratory decree
the above sale deeds cannot be cancelled.
Since, the plaintiff was not in possession of
the disputed house as such, the relief of
permanent injunction was barred by section
38 of the Specific Relief Act. It was also
alleged that on 19.4.2005, the alleged tenants
Samson William and Morris William, handed
over
the
possession
of
the
tenanted
accommodation to Smt.Savita Chhabra and
Rishav Chhabra, and till 19.7.2006, Savita
Chhabra and Rishav Chhabra remained the
owner in possession of the disputed house
and subsequently, on 20.7.2006, the disputed
house was sold through four sale deeds to the
defendants, and now the defendants were in
possession of the disputed house. With these
submissions, it was prayed that the plaintiff 's
suit be dismissed.

25. On the basis of the pleadings of the
parties, the following issues were framed,
in this suit:-

(i) Whether the plaintiff was
owner in possession of suit property?

(ii)Whether the sale deeds executed
on 15.05.2006 registered on 20.7.2006 by
Smt. Savita Chhabra and Rishav Chhabra in
favour of defendant no.1 Radhey Lal
Jeswani, defendant no.2 Sanjay Agarwal,
defendant
no.3
Smt.
Hema
Agarwal,
defendant no.4 Sunil Kumar, and defendant
no.5 Mahendra Kumar, were liable to be
declared null, void and ineffective on the
basis of grounds mentioned in the plaint?

(iii)Whether any cause of action
arose
to
the
plaintiff
against
the
defendants?

(iv)Whether
the
suit
was
undervalued and the court fee paid was
insufficient?

(v)Whether the suit was barred by
sections 34, 38 and 41(h) of the Specific
Relief Act?

(vi)To what relief, if any, the
plaintiff was entitled to?

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

27. In oral evidence, the plaintiff
Rajesh Chhabra examined himself as PW-1
and his father, Mangal Sen Chhabra as PW2.
The
defendants
examined
Sanjay
Agarwal as DW-1.

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

29.
The
defendants
filed
in
documentary evidence, receipt of house tax
in the name of Sanjay and Smt.Hema,
receipt of house tax in the name of Sunil
Kumar and Mahendra Kumar, photocopy
of electricity bill, photographs of the
disputed property, copy of judgment dated
11.5.2007 in P.A. case no.8 of 2002 Rajesh
Chhabra versus Samson William, certified
copy of sale deed dated 15.5.2006,
executed by defendant no.2 & 3 in
favour of defendant no.1, certified
copy of sale deeds dated 15.5.2006
executed by defendant no.2 & 3 in
favour of Sanjay Agarwal, his wife
Smt.Hema
Agarwal,
Sunil
and
Mahendra Kumar, photostat copy of
judgment of SCC suit no.118 of 1996,
copy of judgment in Writ petition no.
2387 of 1990, copy of order passed in
Writ A no. 20677 of 2006, certified
copy of sale deeds dated 15.5.2006 and
certified copy of judgment in P.A. case
no.8 of 2002 Rajesh Chhabra versus
Samson William.

Findings of the trial court

• Issue no.1 in O.S.no.129 of
2005 and Issue no.2 in O.S. no. 365 of
2006

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

31. The trial court noted that in O.S.
no. 28 of 1996, which was filed by the legal
heirs of late Sardari Lal, the legal heirs of
late Vinay Chhabra, who died in an
accident on 24.11.1987, namely Rishav
Chhabra
and
Savita
Chhabra
were
impleaded as defendant no.6 & 7, who had
started claiming ownership in the disputed
property, as such, a declaration was sought
by Mangal Sen Chhabra, regarding his
ownership and possession of the disputed
property. The trial court also noted that
when the above suit was filed, defendant
no.3 Rishav Chhabra was only eight years
old, who was minor, the service on
defendants was effected by publication in
newspaper, when none appeared, one
Advocate Bharat Jain, was appointed as
guardian- ad- litem of the minor defendant,
but he did not take any step to safeguard
the interest of the minor and ultimately, the
suit was proceeded ex-parte against minor
on 28.10.1997. The trial court noted that
the above suit was decreed ex-parte on
31.3.1999, in which the plaintiff was
declared to be the exclusive owner in
possession of house no. 329, situated in
Civil Lines,Jhansi and it was also declared
9 All. Rajesh Chhabra Vs. Radhey Lal Jeswani & Ors.
201
that, the defendants do not have any right
or share therein.

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

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

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

• Issue no.2 in O.S. no.129 of
2005 and issue no.1 in O.S. no. 365 of
2005

35. Both these issues were decided
jointly, by the trial court. The trial court
concluded
that
the
sale
deeds
and
agreement to sell in question, could not be
declared null and void, because it was
mentioned in the deeds, that consideration
was paid to the vendor's by the vendee's.

• Issue no.3 & 4 in O.S. no. 365
of 2006

36. The trial court decided these issues
in favour of the plaintiff by concluding that
the plaintiff was having cause of action to
file the suit. The trial court also concluded
that the plaintiff had correctly valued the
suit and the court fee paid was sufficient.

• Issue no 4 in O.S. no. 129 of
2005 and issue no. 5 in O.S.no. 365 of
2006

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

• Issue no.6 in both the suits

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

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

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

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

42. Learned counsel further submitted
that in suit no. 28 of 1996, the issue of
ownership and possession of disputed
house no.