Delhi District Court
Smt. Jai Kumari ( Now Deceased) vs (1) Sh. Raghunandan Sharma on 7 January, 2015
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
RCA No. 18/14
Case I.D. Number : 02402C0285902012
IN THE MATTER OF :
Smt. Jai Kumari ( Now Deceased)
Through her legal heirs i.e. :
(a) Sh. Rajesh Kumar
(b) Sh. Rakesh Kumar
(c) Sh. Ramesh Kumar
all sons of Late Sh. Amar Nath Sharma
R/o A122/2, Ashok Nagar,
Delhi110093. .......Appellants
VERSUS
(1) Sh. Raghunandan Sharma
S/o Late Sh. Ram Pershad
R/o 15M, Riveria Apartment, 45, Mall Road,
Delhi110054.
(2) Sh. Gopal Sharma
S/o Sh. Daya Ram
R/o 15M, Riveria Apartments,
45, Mall Road, Delhi 110054 .......Respondents
RCA No. 18/14 page 1 of 30
Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
Date of Institution of Appeal : 04.10.2012
Received in this Court : 28.01.2014
Arguments heard on : 07.01.2015
Date of Judgment/Order : 07.01.2015
Decision : Appeal is allowed
J U D G M E N T
1. The present appeal impugns the judgment and decree dated 25.08.2012 passed by Ld. JSCC/ASCJ/Guardian Judge/ (NE), Karkardooma Courts, Delhi in suit No. 608/07 whereby the suit for declaration and permanent injunction in respect of property bearing MCD No. A122/2, Ashok Nagar, Delhi93 ( hereinafter called the suit property) filed by the plaintiffs/appellants against the respondents/defendants has been dismissed. By way of the suit the plaintiff has prayed for declaring the judgment/decree in suit No. 405/120 of 59/61 titled Ram Prasad Vs. Bhudev Sharma & Ors. dated 17.08.1961 is null and void and the plaintiff may be declared as the owner of the suit property. The plaintiffs further prayed to restrain the defendants, agents etc. from interfering in possession of the suit property. ( Parties are referred as per their status before the Ld. Trial Court).
2. The brief and relevant facts in the background of which the present suit was filed by the appellants who were the plaintiffs in the original suit is reproduced from the impugned judgment as follows: (I) The plaintiff if the sole and absolute owner and in possession of the property bearing no. A122/2, Ashok Nagar, Delhi, measuring about 2005 sq. yards after having purchased the same from Shri Shish Pal Singh vide registered Receipt, Affidavit, registered Will, GPA, Agreement to Sell all dated 25.06.1985.
RCA No. 18/14 page 2 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. It has been further stated that Shri Shish Pal Singh had purchased the said property from Shri Kanta Prasad vide registered Sale deed dated 25.10.1971. It has been further stated that the plaintiff and her family members are residing in the suit property since the date of its purchase. It has been further stated that the suit property is mutated in the name of the plaintiff in the records of the MCD since 1985 and the plaintiff has been paying the house tax in respect of the commercial activities in the property. It has been further stated that the plaintiff obtained the water connection in her own name in the said property on 27.03.1979 and the plaintiff also obtained the electricity connection in her own name on 21.10.1986. It has been further stated that the plaintiff and her family members are having identity proofs at the address of the suit property. It has been further stated that on 01.07.2006, both the defendants alongwith two other persons came to the plaintiff and stated that they were the owners of the suit property by virtue of the judgment dated 17.08.1961 in suit no. 59/61 titled as Ram Prasad Vs. Bhu Dev and others. It has been further stated that on demand, the defendants handed over the copy of the judgment of the court of Shri D.K. Agnihotri, PCS, Sub Judge, Delhi. The plaintiff has further stated that the said judgment is not applicable upon the plaintiff in respect of the suit property because the plaintiff was not a party in that suit or in any other proceedings. It has been further stated that the plaintiff has been enjoying the suit property since the year 1985 without any interruption in respect of its title or possession. It has been further stated that the defendants have no right, title or interest in the suit property. It has been further stated that in the year 1961, no sale deed of the agricultural land could be executed under the RCA No. 18/14 page 3 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. provisions of the Delhi Land Reform Act. It has been further stated that the suit property is governed by the provisions of the Delhi Land Reform Act. It has been further stated that on 28.05.1966, the Delhi Administrator through the MCD issued notification no. F9(2)/66, Law Corp. in exercise of the powers conferred by clause (A) of Section 507 of the DMC Act according to which the agricultural lands were allowed to be sold and purchase in the said area. The plaintiff has taken the stand that in view of the said notification, prior to 28.05.1966, all the sale and purchase of the land in respect of the agricultural land were null and void. It has been further stated that since the claim of the defendants in respect of the premises in question is on the basis of the decree of the year 1961 against Bhu Dev and as such, the said decree is null and void. It has been further stated that moreover, on 15.05.1978 and 19.07.1978, the declaration from the DDA was announced and all the unauthorized colonies were regularized. It has been further stated that since the plaintiff is in possession of the suit property since 1985, and hence the title documents in respect of the suit property in favour of the plaintiff are valid. It has been further stated that the sale deed in pursuance of the orders of the year 1961 is null and void. It has been further stated that otherwise also, the plaintiff is the sole and absolute owner of the suit property by virtue of adverse possession as well. It has been alleged that on 01.07.2006 the defendants issued threats to the plaintiff of dispossession. It has been further stated that if the defendants succeed in obtaining the possession of the suit property from the plaintiff, then the plaintiff shall suffer an irreparable loss and injuries and hence the present suit.
RCA No. 18/14 page 4 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a decree of declaration declaring the judgment / decree in suit no. 09/61 titled as Ram Prasad Vs Bhu Dev and others, as null and void and not binding upon the plaintiff. The plaintiff has further prayed for decree of declaration declaring the plaintiff to be the owner / occupant of the premises in question as shown in red colour in the site plan annexed with the plaint by virtue of adverse possession as well as by virtue of title documents and further that the defendants have no right, title or interest in the suit property. The plaintiff has further prayed for a decree of permanent injunction restraining the defendants and their agents from interfering the plaintiff in her peaceful possession of the premises as shown in red colour in the site plan annexed with the plaint permanently. The plaintiff has also prayed for the costs of the suit as well. (II) Written statement has been filed on record by the defendant no.1 stating therein that the present suit has been filed by the plaintiff with malafide intention and ulterior motives only to delay the execution petition pending before Shri Naresh Kumar, Ld. Civil Judge, Tis Hazari Courts Delhi. It has been further stated that suit has not been valued property for the purposes of court fees and jurisdiction; the plaintiff has no locus standi to file the present suit. It has been further stated that the claim of the plaintiff is based on the fact that she had purchased the suit property from Shri Shish Pal Singh who in turn, had purchased the suit property from Shri Kanta Prasad but the plaintiff has not disclosed that Shri Kanta Prasad had himself purchased the property in question from Shri Bhu Dev, the judgment debtor no.1, vide registered sale deed executed by Shri Bhu RCA No. 18/14 page 5 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. Dev in August 1973. The defendant no.1 has alleged that the plaintiff has concealed that he is a Transferee Pendetelite of the JD. Defendant no.1 has relied upon an authority cited as 1998 volume III SCC 723 and stated that if resistance or objections are made by Transferee Pendetelite of the JD, the scope of the adjudication would be shrunk to limited question whether he is such a transferee and on finding in the affirmative, the execution court has to hold that he has no right to resist in view of the clear language as contained in Rule 102. It was further held that the abovesaid adjudication can be weighed in admitted facts and even on the averments and the same does not require any enquiry or evidence. Defendant no.1 has further relied upon the authority cited as 2002 volume 1 SCC page 662. It has been further stated that the plaintiff is not the owner of the property in question and is not entitled to any relief. It has been further stated that defendant no.1 herein is proceeding with the decree in the capacity of the legal heir of the deceased of the DH. Defendant no.1 has stated that a decree of Specific Performance was passed in suit no. 1959/61 titled as Ram Prasad Vs. Bhu Dev by Shri B.K. Agnihotri, Sub Judge, regarding the land measuring 42 bighas 16 biswas forming part of khasra no. 180/147,188,186, 755/179, 178, 177, 151, 158/210, 208, 207, 917/95, 189, 356, 772/355, 771/338, 723/210, 789/533, 898/147, 908/429 and 639 situated in revenue estate of village Saboli ilaqa Shahdara, Delhi. It has been further stated that khasra no. 639 falls in the said land for which the suit was decreed. It has been further stated that the said decree was upheld and confirmed by the Hon'ble High Court of Delhi in RFA no 142D/1961 titled as Ramji Lal and others Vs. Ram Prasad and Anr. decided on 28.10.1971. It has RCA No. 18/14 page 6 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. been further stated that the execution proceedings were commenced against the Judgment Debtors for execution of the Sale Deed and for obtaining the possession of the said land from the JDs. It has been further stated that the objections against the decree were dismissed by the court of Shri R.L. Chugh, Ld. Sub Judge 1 st Class, Delhi on 23.07.1976. It has been further stated that Judgment Debtor no. 2 to 5 except the Judgment Debtor No.1 filed first appeal against the dismissal of the objections which was registered as EFA 5/1976 before the Hon'ble High Court of Delhi and the Hon'ble High Court of Delhi, vide orders dated 03.02.1978 directed the Decree Holder to deposit before the executive court an additional sum of Rs. 7000/ for execution of the sale deed in respect of the land for compliance of the decree by the JDs and further ordered the JDs no. 2 to 5 to hand over the possession of the land to the DH. It has been further stated that the DH after depositing the amount of Rs.7000/ in favour of the JDs in the execution proceedings got the sale deed executed and registered in his favour from the JDs. It has been further stated that the DH obtained possession of the entire land except the land situated in khasra no. 898/147 (211) and 908/429 (010) and 639 (300) on 10.05.1982 through warrants of possession and police aid under the orders of the court. It has been further stated that the property in the present suit falls in khasra no. 639. It has been further stated that thereafter, possession of khasras no. 898/147 and 908 was also obtained and now only the possession of khasra no. 309 is to be taken from the Objectors. It has been further stated that plaintiff despite the fact that she is aware about the pendency of the execution petition has filed the present false suit only to cause confusion and delay the execution. It has RCA No. 18/14 page 7 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. been further stated that the documents in favour of the plaintiff are merely notarized and there is no sale deed in favour of the plaintiff. It has been further stated that merely the paying of the house tax, the existence of the mutation does not give any title or ownership. It has been further stated that the plaintiff is not the owner of the suit property by virtue of the documents relied upon by the plaintiff. Defendant no.1 has denied that by virtue of adverse possession in the suit property since 1985, the plaintiff is the owner. It has been further stated that the plaintiff is Transferee Pendetelite. It has been further stated that the deceased DH Shri Ram Prasad had bequeathed the suit property which is in khasra no 639 to defendant no.1 and defendant no.2 but defendant no.2 is not claiming any right. It has been further stated that defendant no.1 is the owner and he has been brought on record as heir of the deceased DH. It has been further stated that the plaintiff is in illegal occupation of the suit property. It has been further stated that the decree dated 17.08.1961 is final and execution petition is already pending disposal. The jurisdiction of this court has not been denied by defendant no.1. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed.
(III) Replication has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement filed on record by defendant no.1. In the replication, the plaintiff has taken the stand that she was not aware about the execution proceedings and she came to know about the execution proceedings only on 01.07.2006, when the defendants with two other persons came to the RCA No. 18/14 page 8 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. plaintiff. The plaintiff has further stated that the defendant is playing fraud under the garb of the decree, (if any). It has been further stated that the plaintiff was not a party in that suit and the defendants have no sale deed. It has been further stated that the defendants have obtained more than 62 bighas of the land whereas, the decree was only for 34 bighas.
The Defendant No. 2 was proceeded ex parte and has not filed any written statement or led any evidence.
3. From the pleadings of the parties, the following issues were framed by Ld. Trial Court:
(i) Whether the plaintiff is entitled to relief of Declaration as prayed for ? OPP
(ii) Whether the plaintiff is entitled to relief of Permanent injunction as prayed for ? OPP
(iii) Relief.
4. The appellants have preferred the instant appeal on the ground that the impugned judgment and decree dated 25.08.12 is not sustainable in law and facts and is passed without application of judicial mind. It is further contended that the impugned judgment and decree is not passed on the basis of the admitted and proved facts and the judgment suffers from illegality and infirmity. As mentioned the Ld. Trial Court failed to appreciate the correct facts and impugned judgment and decree is liable to be set aside. As contended, that there was no privity of contract between the plaintiff and the defendants; the defendants have no right, title or interest in the suit property, the defendants have not proved any title documents including the sale deeds. The attorney of the plaintiffs was examined RCA No. 18/14 page 9 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. as PW1 as her condition was critical and the judgment of Hon'ble Supreme Court relied by the Ld. Trial Judge regarding non examination of the plaintiff is not applicable in the facts of the case. The evidence of the parties recorded was not considered properly and the impugned judgment was passed on the basis of presumption as contended, as the defendants have played fraud. As further contended, the Ld. Trial Court failed to appreciate the facts of the case in proper perspective and reached to wrong conclusion; the Ld. Trial Judge has not applied his mind and disposed off the suits without following due process of law and considering the relevant aspects. This appeal is filed praying to set aside the impugned judgment and decree.
5. The respondents did not file reply to the appeal and supported the impugned judgment and decree as correct and liable to be upheld.
6. Along with the appeal, the appellant has filed an application U/S 5 of Limitation Act seeking condonation of delay in filing the appeal was also filed on the ground detailed in the application. This application is also not replied by the respondents.
7. I have heard Ld. Counsel for the parties and gone through the trial court records. I have also gone through the written submissions filed on behalf of respondents along with the relevant provisions of law.
8. Section 5 of the Limitation Act, 1963 contained the provision regarding the condonation of delay in filing the appeal which is reproduced herein for reference: Section5 Extension of prescribed period in certain RCA No. 18/14 page 10 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
cases Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 ( 5 of 1908) may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
9. Before disposing of appeal, I propose to adjudicate upon the application of the appellant U/S 5 of the Limitation Act for condonation of delay in filing the appeal. The Ld. Counsel for the respondents denied the contentions and prayed to dismiss the appeal being barred by limitation and without any merit.
10. The prescribed period of Limitation for filing the appeal is 30 days from the date of the decree or order. Under Section 5 of the Limitation Act, the delay in filing the appeal may be condoned and an appeal may be admitted after the prescribed period of the limitation if the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within such period.
11. It is well settled principle of law that while dealing an application for condonation of delay in filing appeal, the court shall adopt liberal approach and RCA No. 18/14 page 11 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. the expression "sufficient cause" is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the live purpose for existence of the institution of the courts and in this regard the judgment of Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag vs. Mst. Katiji AIR 1987 SUPREME COURT1353 can be referred to and para 3 of the judgment reads as under: "The legislature has conferred the power to condone delay by enacting Section 5 "Any appeal or any application,other than an application under any of the provisions of Order XXI of the Civil Procedure Code,1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause"employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy.
RCA No. 18/14 page 12 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. And such a liberal approach is adopted on principle as it is realized that:
Ordinarily a litigant does not stand to benefit by lodging an appeal late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other,cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
RCA No. 18/14 page 13 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
12. In this regard another judgment of the Hon'ble Supreme Court in State of Haryana vs. Chandra Mani AIR 1996 1623 is also relevant for reference and para no. 6 and 7 of the judgment read as under:
"6. In O.P Kathpalia v.Lakhmir Singh (dead), (1984) 4 SCC 66 : (AIR 1984 SC 1744), a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay.Delay was accordingly condoned. In Collector, Land Acquisition, Anantnag v. Mst. Katiji, (1987) 2 SCC 107 :
(AIR 1987 SC 1353), a Bench of two Judges considered the question of the limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the Court to do substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause" is adequately elastic to enable the Court to apply the law in a meaningful manner which subserves the ends of the justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. This Court reiterated that the expression "every day's delay must be explained' does not mean that a pedantic approach should RCA No. 18/14 page 14 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. be made. The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise justice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justiceoriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before the law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the State is the applicant. The delay was accordingly condoned. Experience shows that on account of an impersonal machinery (no one in RCA No. 18/14 page 15 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note making, fileushing, and passingontheuck ethos, delay on its part is less ifficult to understand though more difficult to approve.
The State which represent collective cause of the community, does not deserve a litigantongrata status. The Courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. Delay was accordingly condoned, the order was set aside and the matter was remitted to the High Court for disposal on merits after affording opportunity of hearing to the parties. In Smt. Prabha v. Ram Parkash Kalra, (1987) Supp SCC 338 : (AIR 1987SC1726), this Court had held that the Court should not adopt an injustice oriented approach in rejecting the application for condonation of delay. The appeal was allowed, the delay was condoned and the matter was remitted for expeditious disposal in accordance with law."
13. This court is required to apply the law in a meaningful manner which RCA No. 18/14 page 16 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. subserves the ends of justice, which is the life purpose for existence of the court. In the facts and circumstances of the case and to do substantial justice between the parties, as held by the Hon'ble Supreme Court in Mst. Katiji's case (supra) and Chandra Mani's case (supra), the application for condonation of delay in filing the appeal U/S 5 of Limitation Act is hereby allowed and the delay in filing the appeal is condoned.
14. To appreciate the rival contentions of the parties, it is necessary to refer relevant provisions of law regarding declaration and injunction. Section 34 & 35 & 38 of the Specific Relief Act, 1963 dealt with relief of declaration and injunction which are reproduced as below:
34. Discretion of court as to declaration of status or right Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief that a mere declaration of title, omits to do so.
35. Effect of declaration. A declaration made under this chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the RCA No. 18/14 page 17 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
parties are trustees, on the persons for whom, if in existence at the date of declaration, such parties would be trustees.
38. Perpetual injunction when granted (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
15. As held in M. P. Mathur Vs. DTC, AIR 2007 SC 414, the discretion under the Section which the court has to exercise is a judicial discretion and has to be exercised on well settled principles. The court has to consider as the nature of the obligation in respect of which performance is sought, circumstances under which the decision came to be made, the conduct of the parties and the effect of the court granting the decrees. The court has to look at the contract and ascertain as to whether there exists an element of mutuality in the contract. Further, as held in American Express Time Vs. Kolkata Steel Company, (1993) 2 SCC 199 , the grant or refusal of relief of declaration and injunction under provisions of Section 34 is discretionary and the plaintiff cannot claim the relief as of right. It has to be granted according to sound principles of law and ex debito justitial.
16. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement as the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for injunction, this suit is to be decided on the basis of preponderance of RCA No. 18/14 page 18 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. probabilities. As held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418 & Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, "A civil case is decided on balance of probabilities.
17. Section 101 of the Evidence Act, 1872 defines " burden of proof" and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
18. The issues framed by the Ld. Trial Court has been mentioned at the outset. The plaintiffs have filed the suit for declaration as well as permanent injunction which was dismissed vide impugned judgment. The Ld. Trial Court has dismissed the suit mainly on the ground that the plaintiff has narrated the facts during the evidence beyond pleadings. The arguments of the plaintiff that the title of the plaintiff was never challenged by the defendant and the plaintiff/witness was not RCA No. 18/14 page 19 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. crossexamined regarding the documents relied was rejected by the Ld. Trial Court. The Ld. Trial Court reached to the conclusion for dismissing the suit on the premise that the plaintiff cannot be allowed to take benefit of the lacunas left by the defendant in proving the case and the plaintiff has to prove his own case by way of independent, cogent and reliable evidence. It is reiterated that in the WS the defendant have denied the locus standi of the plaintiff along with the transaction. As the plaintiff put his case, the defendant was also under obligation to disprove and rebut the claim of the plaintiff. As noted above being a civil suit, the matter was to be disposed by the Ld. Trial Court on the basis of preponderance of probabilities.
19. The Ld. Trial Court appears to have dismissed the suit of the plaintiff mainly on the ground that plaintiff has not appeared in the witness box and the son/attorney of the plaintiff has been examined as PW1. The argument of critical condition of the plaintiff was rejected as a reason for examining the attorney as no medical records were produced. The Ld. Trial Judge has further relied upon the judgment reported as AIR 2005 SC 439 titled Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd and reached to the conclusion that the testimony of PW1/son/attorney of the plaintiff cannot be relied. It may be noted that the plaintiff has filed the suit for declaration regarding ownership and therefore the rejection of the testimony of the PW1 on the ground that he failed to disclose the name of the two persons who claimed their ownership appears to be without any basis. I have gone through the above said judgment. With due respect, it is nowhere mentioned in this authority that under no circumstances, a power of RCA No. 18/14 page 20 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. attorney holder can be examined on behalf of principal. It was observed in that case that power to depose in place of principal extends only to deposition in respect of "acts" done by power of attorney in exercise of power granted by the instrument. Power of attorney holder cannot depose for principal in respect of all matters of which only principal can have personal knowledge and in respect of which principal is liable to be crossexamined. It was submitted by Ld. Counsel for the appellant that PW1 reiterated and reaffirmed the averments and also deposed regarding the documents in support of the claim. The contention of the appellant appears to have substance. The very authority relied upon by Ld. Trial Court was considered by Hon'ble High Court in Vinay Jude Dias Vs. Ms. Renajeet Kaur, AIR 2009 Delhi 70 and it was observed that an attorney has to be allowed to appear in the witness box and make statement. The court may reject that part of his statement which is based on hearsay or which is not within his personal knowledge but he cannot be prevented from appearing in the witness box and deposing and answering the questions.
In Sharifuddin Vs. Mehrunisa & Ors. reported as 148 (2008) DLT 154 also, Hon'ble High Court observed that it was not necessary for the party himself to appear in witness box in all cases. Moreover, Section 120 of Indian Evidence Act also provides that in all civil proceedings, parties to the suit and the husband or wife of any party to the suit shall be competent witness. In the instant case, suit has been filed by the mother and therefore, in view of this Section, son is a competent witness. Without expressing any opinion as to what will be the evidentiary value of the son of the plaintiff when he is sought to be examined as a RCA No. 18/14 page 21 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. witness he should not have been debarred from appearing as a witness. The evidentiary value of his testimony would have been decided after going through the same and not would have been rejected merely being attorney. The finding of the Ld. Trial Judge that the testimony of the PW1 cannot be relied appears to be without any ground and liable to be set aside.
20. The plaintiff has claimed the ownership on the basis of Ex. PW1/1 to PW1/6 i.e. GPA, Agreement to Sell and Receipt etc. The PW1 has reiterated his contention during his crossexamination and deposed that the plaintiff purchased the suit property from Sripal who purchased from Kanta Prasad. The defendant No. 1 during his crossexamination admitted that the suit property was purchased by the plaintiff form Sh. Kanta Prasad by virtue of registered sale deed. In one way the defendant admitted the title of the plaintiff but the Ld. Trial Court rejected the piece of evidence on the ground that the plaintiff purchased from Sripal Singh and not from Kanta Prasad. The Ld. Trial Court lost the sight that the case of the plaintiff was corroborated in view of the testimony of DW1 as from Sri Kanta Prasad only the property came to S. P. Singh and thereafter to the plaintiff. Admittedly, no proceeding has been initiated against the plaintiff by the defendant after 1961 i.e. passing of the impugned judgment to evict the plaintiff from the suit premises in case the plaintiff have no right, title or interest in the same. The testimony of the DW1 was not specific or categorical denying the claim of the plaintiff. Mere bald denial and oral averments are not sufficient to deny the claim of the plaintiff. Moreover, the testimony of the DW1 was further shattered during crossexamination and the Ld. Trial Court appears not right while rejecting RCA No. 18/14 page 22 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. the claim of the plaintiff on the ground that the plaintiff was to prove the case.
21. The GPA, Agreement to Sell and Receipt relied by the plaintiff are un registered. The plaintiffs are in settled possession of the suit property and their title was not challenged till today for about 50 years. The said documents relied by the plaintiffs not challenged by the defendants. The finding of the Ld. Trial Judge that in view of absence of registered sale deed in favour of the plaintiff, even the admission of DW1 during crossexamination is of no help appears to be erroneous. Admittedly, the defendants are not in possession of the suit property. The Ld. Trial Judge relying upon the judgment reported as 2011 (4) Civil Court cases 558 (SC) titled as Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana & Ors and rejected the claim of the plaintiff for want of registered sale deed.
22. I have gone through the judgment in Suraj Lamps case (supra) . As held, unless there is a proper registered sale deed, title of an immovable property does not pass. The Hon'ble Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance ( para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872( para 13) and devolution of interest pursuant to a will( para 14).The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the RCA No. 18/14 page 23 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. executant of the power of attorney.
Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will.
23. This Court is conscious of the judgment of the Hon'ble High Court in the case of Sh. Ramesh Chand Vs. Suresh Chand reported in 188 (2012) DLT 538 in which the judgment in the case of Suraj Lamps (supra) was interpreted. In the case of Ramesh Chand (supra) the Hon'ble High Court was pleased to hold that right to possess immovable property arises not only from a complete ownership right but also by having a better title.
In the present case plaintiffs have claimed title on the basis of GPA, Agreement to Sell, Payment receipt and the will and the execution of these documents are not denied at all. Moreover, these documents stands proved in view of unrebutted and uncontroverted testimony of the PW1 in this respect. It is settled that ownership and possession are two entirely different concepts. It necessarily follows that it is not only possible but also permissible to transfer one without the other. In simple words it is permissible to transfer ownership without transferring possession. Similarly, it is also possible to transfer possession without transferring ownership. It is relevant to note here that in this case the right/interest, title had been transferred in pursuance of the provision of the Transfer of the Property Act along with possession of the suit property. It is RCA No. 18/14 page 24 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. proved that the plaintiff purchased the suit property and the testimony of the PW1 in one way or the other remain unimpeached. The plaintiff was also never impleaded in execution of the decree so that his right, interest if any may be challenged. The defendants on the other hand failed to prove by cogent evidence that plaintiffs have not right, title or interest in the suit property. Mere oral averments and bald denial is not sufficient to deny the claim of the plaintiff. The defence of the defendants is therefore not sustainable.
24. Ld. Counsel for the appellants have vehemently argued that Section 52 of Transfer of Property Act, 1882 is not applicable at all in the facts and circumstances of the case as the appellants are in settled possession of the property being bona fide purchaser and were not a party to the suit in which the decree was passed nor they were ever impleaded in the execution proceedings of the decree. It is further argued that appellants are bona fide purchaser and has no notice of any suit or decree and therefore they cannot be deprived of their settled possession, illegally or unlawfully. This contention appears to have substance.
25. Section 52 of the Transfer of Property Act, 1882 dealt with the transfer of the property pending suit. The Section is reproduced as below:
52. Transfer of property pending suit relating thereto. During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to RCA No. 18/14 page 25 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation. For the purpose of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution or the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge or such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
As held in AIR 1994 All. 167, Section 52 comes into existence from the point of the institution of the suit and continues to survive till the satisfaction of the decree. As further held in AIR 1994 KER 122, the affect of doctrine of lis pendence as embodied in Section 52 of Transfer of Property Act is not to annul all voluntary transfers affected by the parties to a suit but only to render it subservient to the rights of the parties thereto under the decree or order which may be made in that suit. Its affect is only to make the decree passed in the suit RCA No. 18/14 page 26 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. binding on the transferee if he happens to be third party person even if he is not a party to it. The transfer will remain valid subject, however, to the result of the suit.
26. This Court has gone through all the documents relied by the appellants in support of ownership. It is also apparent and established that these documents were executed during the pendency of the suit and therefore Section 52 of the Transfer of the Property Act is applicable to the facts and circumstances of this case but neither the right, title or interest of the plaintiff have been challenged by the respondents as per law till today nor the appellants have been made party in execution proceeding for execution of any decree. The respondents therefor cannot be permitted to dispossess the plaintiff forcefully or illegally without following due process of law and the plaintiffs have no any right in the suit property.
27. In the present case, the plaintiffs have right, title and interest in the suit property and is in settled possession of the same. No efforts have been made by the defendants to dispossess the plaintiff from the suit premises till today nor her right, title or interest has ever been challenged. The defendants further failed to prove that the possession was not handed over as part performance of the agreement to sell. Thus the only inference which can be drawn in view of the pleadings and evidence led is that the plaintiff is the owner of the suit property and is entitled to the decree of declaration as prayed in the suit.
28. As regards the relief of injunction, the injunction is a discretionary relief and its grant of refusal depends upon the circumstances and facts of a particular RCA No. 18/14 page 27 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. case. The discretion has to be reasonable guided by judicial principles and law. It must not be arbitrary, vague and fanciful. Section 41 of the Specific Relief Act enumerates the cases where an injunction will be denied. Sub Section (h) of section 41 mention that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust the injunction cannot be granted. Sub Section (i) mention regarding refusal of injunction when the conduct of the applicant or his agents has been such as to dis entitle him to the assistance of the court. Section 38 of the Specific Relief Act enables the court to grant a perpetual injunction to prevent the breach of an obligation existing in favour of applicant whether express or implied. Meaningly the question is to be examined as to whether there exists an obligation in favour of the applicant and thereafter if the answer is yes, if the case falls within section 41 of the Act, an injunction cannot be granted. It is also necessary to mention that rights and obligation are corollary to each other and the right places a corresponding duty also for its existence. Issuance of order of an injunction is absolutely discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41 (j) of the Specific Relief Act, 1963 and the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence cannot be protected by injunction.
29. The plaintiff has prayed for restraining the defendants, agents, attorneys etc. from interfering in peaceful possession of the suit property. It is the case of RCA No. 18/14 page 28 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. the plaintiffs that they purchased the suit property. As mentioned the defendants failed to prove their ownership and deny the claim of the plaintiffs. The defendants therefore cannot be permitted to dispossess the plaintiff who is in settled possession on the basis of right, title and interest in the suit property. As the defendants have no right, title or interest in the suit property, the plaintiff is entitled for grant of injunction as prayed in the suit.
30. Applying the legal provisions and facts of the case and examining on the basis of preponderance of probabilities, this court is of the considered view that the appellants/plaintiffs have proved their case and are accordingly entitled for the relief as prayed therein. This court does not finds itself in consonance with the findings of Ld. Trial Judge. The impugned judgment and decree dated 25.08.2012 whereby the suit filed by the appellants/plaintiffs was dismissed suffers from illegality and infirmity and appears to be not sustainable in view of the aforesaid discussions and findings. The appeal is accordingly allowed and resultantly the impugned judgment and decree dated 25.08.2012 passed by Ld. Trial Court is set aside.
Relief:
(1) The appeal is allowed and impugned judgment and decree dated 25.08.2012 is set aside.
(2) It is declared that the judgment/decree in suit No. 405/120 of 59/61 titled Ram Prasad Vs. Bhudev Sharma & Ors passed by Sh. V. K. Agnihotri, PC Sub Judge, Delhi vide judgment/decree dated 17.08.1961 is not binding on the plaintiffs in respect of property No. A122/2, Ashok Nagar, Delhi93 as shown in RCA No. 18/14 page 29 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. red color in site plan Ex. PW1/B. (3) It is declared that plaintiff has right, title and interest in the suit property by virtue of the documents relied in the suit. The defendants are at liberty to challenge the documents of the plaintiff in accordance with law. (4) Decree of permanent injunction is passed in favour of the appellants/plaintiffs and against the respondents/defendants and the defendants/respondents, attorneys, representative, agents etc. are restrained from interfering in peaceful possession of the suit property by the plaintiff illegally and forcibly except without due process of law.
31. No order as to costs in the facts and circumstances of this case.
32. Decree Sheet be prepared accordingly.
33. TCR be sent back to the concerned Court along with a copy of this judgment.
34. Appeal file be consigned to the Record Room.
Announced in open Court on this 07th day of January, 2015 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
RCA No. 18/14 page 30 of 30 Jai Kumari & Ors. V/s Raghunandan Sharma & Ors.