Delhi District Court
Shanti vs Babu Lal. on 25 January, 2016
IN THE COURT OF SH. PRASHANT KUMAR,
ADJ04 (NW), ROHINI DISTRICT COURTS, DELHI.
M. No. 28/15
Shanti Versus Babu Lal.
Smt. Shanti,
W/o Shri Ram Avtar,
R/o E271, Shakur Pur,
J. J. Colony, Shakur Basti,
Delhi. .............Appellant.
Versus
1. Sh. Babu Lal
S/o Not known
R/o E468, J. J. Shakur Pur,
J. J. Colony, Shakur Basti, Delhi.
2. Sh. Lalit Kumar,
S/o Shri K. P. Sharma,
R/o H. No. G711712,
J. J. Colony, Shakurpur,
Delhi ..........Respondents.
Date of filing of the application : 14.10.2015
Date of hearing the arguments : 15.01.2016
Date of announcing the appeal : 25.01.2016
O R D E R
1. By this order, I shall decide one petition filed on behalf of the applicant seeking review of the order dated 07.09.2015 passed by this court.
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2. The facts of case filed by the applicant in brief are as under:
It is stated by the applicant that vide order dated 07.09.2015, the appeal filed by the appellant/plaintiff was dismissed and while passing the said order, the Ld. Court has overlooked certain facts and prepositions of law which if considered by the court then the order would have been different.
It is stated by the applicant that impugned order dated 07.09.2015 is liable to be reviewed on the following grounds:
(i) That Ld. Court has failed to appreciate that it is admitted fact that husband of petitioner Mr. Ramadhar was owner in possession of the property in dispute from 1988 till his death in the year 2000.
Petitioner had placed on record original and registered title deeds on the judicial file since the very beginning whereas defendants have placed unregistered and defective papers without any attestation by witnesses. As per Registration Act, unregistered documents have no value in the eyes of law and registered document shall always be on better footing than on unregistered documents. It has, however, been held in impugned order dated 07.09.2015 that petitioner has not placed any original paper on record which is factually incorrect.
(ii)Ld. court has failed to appreciate that request made by the petitioner to implead her daughter in law was declined by the Ld. Trial court.
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(iii) Ld. Court also failed to appreciate that appellant had also filed an application for handwriting expert to examine the fabricated documents of the defendant which was never decided by the Ld. Trial court.
(iv) Ld. Court also failed to appreciate that defendant had presented a list of 12 witnesses before the trial court, however, only defendant no. 2 appeared in the witness box.
(v) Ld. Court did not consider the written arguments filed by the appellant. Ld. Court also failed to appreciate that an application under Order 6 Rule 17 CPC for amendment of plaint was also dismissed by the Ld. Trial court.
(vi) Ld. Court has also made certain observation which are not in consonance with the opinion given in landmark judgment of Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & anr. 183 (2011) Delhi Law Times 1 (SC) and Hardeep Kaur.
3. The review application has been argued and opposed by the respondent. It is stated that the impugned order dated 07.09.2015 does not suffer from any error. Hence, the application is liable to be dismissed.
4. Arguments heard at length. Record is also perused. M No. 28/15 Page No. 3/10 Shanti Versus Babu Lal & Anr.
5. It is stated by the applicant during arguments that husband of appellant had purchased the property on 21.01.1988, who died in the year 2009. It is stated that appellant is the classI heir of her deceased husband. Hence, she is entitled to succeed the property. During arguments, the counsel for petitioner has stressed heavily upon the argument that the title deeds i.e. agreement dated 03.10.1994 in favour of daughter in law of the husband of appellant is merely notarized and after perusing the terms and conditions mentioned in the said agreement dated 03.10.1994, it is reflected that this agreement in substance is in the nature of gift and it can not be termed as a sale document. It is, therefore, prayed that section 53A Transfer of Property Act is not attracted in such circumstances. By leading these arguments, counsel for petitioner has heavily relied upon the submissions that as the title deed of the daughter in law were not registered and were in the nature of gift in substance. Hence, bar of section 49 Transfer of Property Act is applicable in the present case and they could not be looked into evidence. Hence, such a document is null and void. It is further argued by the applicant that daughter in law of late husband of appellant had sold the property further to defendant on 15.06.2010 and those documents, again are unregistered. In this regard, it is stated by the applicant that there was therefore no occasion to seek declaration against the M No. 28/15 Page No. 4/10 Shanti Versus Babu Lal & Anr.
alleged title deeds as, as per law the documents allegedly in favour of daughter in law of Late husband of petitioner and subsequent transfer thereof are null and void and having no value in the eyes of law.
6. Counsel for appellant has relied upon certain judgment in support of her contentions which are mentioned as under:
(I) M/s Tungbhadra Industries Versus Government of AP, AIR 1964, Supreme Court, 1372.
It has been held in this case that a review is by no means and appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patient error where without any elaborate argument, one could point to the error and say there is a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on face of the record would be made out.
On the point of adverse possession the judgment relied upon by the appellant are mentioned as under:
(i) AIR 2008, AP 191 wherein it has been held that lower appellate court proceeded on certain assumptions which do not have support of law. For instance, it expected the appellant to explain the nature of possession of the respondent over the suit land as well as the delay M No. 28/15 Page No. 5/10 Shanti Versus Babu Lal & Anr.
in approaching the court. In a suit for declaration of title and recovery of possession, the only thing a plaintiff has to satisfy the court about the existence of title. Under article 64 & 65 of Schedule to the Limitation Act, the burden the burden squarely rest upon the person who raises the plea of adverse possession to prove it.
(ii) Peeru Charan Pal Versus Sunil Moy Nemo, AIR 1973, Calcutta I wherein it has been held that gift of immovable property must be effected by a registered instrument. The gift of the Ka schedule properties was not effected by a registered instrument and, accordingly, the gift is invalid and no title passed to the said Dwarika Nath under the unregistered deed of gift. It has been further held that the doctrine of part performance as embodied in section 53 A TPA is confined to transfer for consideration and not extended to gifts.
Counsel for appellant has also relied upon following judgments on the point that a gift has to be mandatorily without consideration and is compulsorily registrable.
(I) Km. Sonia Bhatia Versus Sate of Uttar Pradesh, 1981, Legal Eagles (SC) 182
(ii) Wg. Cdr. (Retd.) R. N. Dawar, Versus Shri Ganga Saran Dhama, 1992, Legal Eagle (Del) 429.
(iii) Shrimant Shamrao Suryavanshi Versus Pralhad Bhairoba Suryavanshi (D), 2002 Legal Eagle (SC) 81.
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It has been argued in this regard by counsel for the appellant that from bare perusal of the agreement dated 03.10.1994, it is reflected that it is without any consideration and has been made out of love and affection. Therefore, it is, in substance in the nature of gift and not transfer by any other means like sale or agreement to sell. Thus, section 53A TPA is not applicable.
7. Appellant has also stated during arguments that where the title deed itself is bogus, sham and nominal piece of paper then there is no need to seek any declaration for cancellation of such void document. In this regard, the appellant has relied upon the judgment titled as Sanjay Kaushish Versus D. C. Kaushish & Others, 1991, Legal Eagle (Del) 480.
Taking the plea of the appellant that the alleged agreement dated 03.10.1994 is in the nature of gift and not transfer by sale, it is reflected from the careful perusal of the record that this plea has nowhere been raised at any point before the Ld. Trial court nor it does fall part of the pleadings nor any evidence has been led by the applicant/ plaintiff at any point of time during entire trial. Thus, this plea has been raised for the first time at the stage of review qua the appeal. No such plea was even raised during the appellate stage nor does it form part of any of the grounds of appeal. In this regard,it has M No. 28/15 Page No. 7/10 Shanti Versus Babu Lal & Anr.
been submitted by counsel for applicant that it is an issue of law which ought to have been considered by the court of its own even if not raised on earlier occasion.
In this regard, it is needless to say that whether any document after perusing it appears to have a different substance then its title and nomenclature or not is a plea which cannot be said to be purely a question of law. No doubt, it is a matter of interpretation and construction of the document as a whole by considering its substance which involve application of law as well, however, such a construction in its pith and substance has always to be seen and considered in the light of the averments made by the parties. If any document like agreement dated 03.10.1994 which is in question, is worded differently and it reflects that it is in the nature of an agreement and the party relying upon it is stating that it is a transfer of title then unless until specific averment is made reflecting a contrary view regarding its construction, it cannot be considered to have a different nature then as mentioned in the title of the document itself.
In these circumstances, therefore, it makes no difference even if it is lacking consideration or there is inadequacy of consideration. In these circumstances, therefore, I am of the considered opinion that so far as this plea of applicant is concerned that the agreement dated M No. 28/15 Page No. 8/10 Shanti Versus Babu Lal & Anr.
03.10.1994 is in the nature of a gift is not tenable in the eyes of law in the absence of any specific averment to that effect during the entire trial or even during the stage of appeal.
Once these submissions made by the applicant that as the impugned agreement dated 03.10.1994 is not a valid document being in the nature of gift & that too unregistered, the other plea raised by applicant in this review application also goes alongwith it.
8. Another plea taken by the applicant is that vide the impugned order dated 07.09.2015, this court has observed that appellant/ plaintiff has not placed on record any title deeds, the record is perused again. The trial court record is also with the present file. It is reflected from the perusal that certain documents in original filed by the applicant/ appellant/ plaintiff are on record and only the receipt is purportedly registered allegedly in favour of the applicant/ appellant/ plaintiff. The observation, therefore, made in para no. 6 of the impugned order dated 07.09.2015 is corrected. Correction of these observation, however, does not affect the impugned order in substance and in any case this correction does not renders the impugned order liable to be reviewed as a whole.
There is a difference between not appreciating the correct position of law and not appreciating certain facts correctly. So far as M No. 28/15 Page No. 9/10 Shanti Versus Babu Lal & Anr.
the second aspect is concerned it does not fall within the domain of section 114 CPC. In the light of these observations, therefore, I am of the considered opinion that applicant has not been able to show from the record any error apparent as per law.
9. In the light of above discussion, the applicant/appellant/plaintiff has failed to raise any ground against the impugned order dated 07.09.2015 and all the grounds taken vide the present petition are not tenable in the eyes of law. Accordingly, the petition filed by the applicant/ appellant/ plaintiff is dismissed. No order as to cost.
10. Trial court record be sent back to the Ld. Trial Court.
11. File be consigned to record room after completion of all necessary formality.
Announced & dictated in the (Prashant Kumar) open court today i.e. on 25.01.2016. ADJ04(NW)/Rohini Courts Delhi/25.01.2016 M No. 28/15 Page No. 10/10 Shanti Versus Babu Lal & Anr.