Delhi District Court
Gali Kasim Jan vs Ramesh Aggarwal on 8 November, 2011
1/18
IN THE COURT OF SH.S.S. MALHOTRA, ADDL.
DISTRICT JUDGE KARKARDOOMA
COURTS/ DELHI.
RCA no.47/10
Date of filing of appeal: 26.2.2010
Date of arguments:3.10.2011
Date of order: 8.11.2011
Shahid Hussain
s/o late Sh.Mohammad Yaqub
r/o H.No 2010, Ahata Kaley Sahib,
Gali Kasim Jan, Ballimaran,
Delhi6
Also at
7/289, Lalita Park,
Laxmi Nagar, Delhi92 Appellant
Vs
1 Ramesh Aggarwal
r/o Flat no.131, Kanungo Apartments,
Indraprastha Extn. Patparganj,
Delhi92
2 Smt.Sarla Sharma
w/o late Sh.Tilak Raj Sharma
r/o H.No 11066, Subhash Park,
Naveen shahdara, Delhi32
r/o 20 B, Bhola Nath Nagar,
Shahdara, Delhi32
3 Smt.Jagir Kaur
w/o Sh.Avtar Singh
r/o H.No B115,(old no.B293)
Joshi Colony, Mandawali, Fazalpur,
Delhi92
Shahid Hussain Vs Ramesh Aggarwal & ors
2/18
4 Sh.Rajiv Bansal
s/o Sh.G D Bansal
r/o H.No 222, Darjiwara Ward no.5,
Ballabhgarh121004 Respondents
ORDER
1 Vide this order, I shall dispose off the appeal as filed by the appellant/plaintiff against the order/judgment dt.15.01.2010 as passed by the Ld.Trial Court by which the suit of the plaintiff for possession of property bearing no. B115(old no.B293), Joshi Colony, Mandawali, Fazalpur, Delhi92 (for short' the suit property) & for recovery of mesne profits & injunction was dismissed. 2 Before coming to the facts of the present appeal, brief facts as stated by the appellant/plaintiff in his plaint are that the plaintiff is the owner of the suit property which he purchased from Sh.Deen Mohammad Bhatti s/o late Sh.Jamaluddin through General Power of Attorney, agreement to sell, receipt, Will dt. 20.9.91 and the documents were attested by the Notary Public and the plaintiff was put in possession. Sh.Deen Mohd.Bhatti had purchased the suit property from the previous owner, Sh.Ajay Kumar s/o Sh.Dharam Chand Chopra who had purchased the suit property from Sh.Riajuddin s/o Sh.Mohammad Yunus and Sh.Riajuddin had purchased the suit property on the basis of power of attorney from Smt.Mefida Khatoon w/o Sh.Mohammad Sabir Khan through GPA on 3.2.1988 and the appellant/plaintiff is in possession of such document and after purchasing the same, the appellant thereafter had raised Shahid Hussain Vs Ramesh Aggarwal & ors 3/18 construction on the suit property but the respondent/defendant no.2 to 4 committed trespass in the suit property somewhere in the month of June, 1997 and after having knowledge of the same, the appellant/plaintiff has filed a written complaint with the DCP, East on 2.7.97 and during the investigation , it transpired that the defendants no. 2 to 3 had forged & fabricated the documents pertaining to the suit property to play fraud upon the plaintiff and after investigation, an FIR no.591/97 u/s 448/468/471 IPC was registered against them. It is also submitted that defendant no.2 & 3 had earlier filed a civil suit bearing no.568/97 against the plaintiff and his father which was contested by the plaintiff and which was subsequently dismissed in default and the defendant no.1 to 4 are now in illegal possession of the suit property in connivance with each other and they had started demolishing the suit property on 2.2.2004 on which date the plaintiff lodged protest which was ignored by the defendants and the matter was reported to the police where the defendants had claimed that they have purchased the property and no action was taken by the police against such demolition and ultimately the plaintiff has filed the present suit against all the 4 defendants seeking possession, recovery of mesne profits and injunction.
3 Defendants have filed the written statement taking preliminary objections that the suit is barred u/s 6 of the Specific Relief Act. Plaintiff has not produced any document to show that he is the owner of the suit property which is allegedly purchased by the plaintiff as number of the property has not been mentioned in the documents.
Shahid Hussain Vs Ramesh Aggarwal & ors 4/18 Documents produced by the plaintiff are unregistered and have no effect to transfer the title of immovable property in favour of the plaintiff. Suit is bad for non joinder & mis joinder of necessary parties. Defendant no.1 is not connected with the suit property and it has been purchased by one Sh.Rajeev Bansal from defendant no.2 through agreement to sell, General power of attorney, irrevocable power of attorney & receipt etc. on 31.1.2004.
The Ld. Trial Court thereafter framed the issues and ultimately dismissed the suit of the appellant/plaintiff thereby holding that documents furnished by the plaintiff are unregistered documents and do not confer any title upon the plaintiff and the documents are hit by the provisions of section 17 r/w section 49 of Registration Act and since these documents do not create any right in favour of the plaintiff, the plaintiff can not be held to be the owner of the property and aggrieved from the judgment of the Ld.Trial Court, the present appeal has been filed by the appellant/plaintiff on various grounds. 4 In the grounds of appeal, it is submitted that the Ld.Trial Court has failed to appreciate that the documents filed by the appellant were duly registered with Sub RegistrarIV on 20.8.1991 in his favour by Sh.Deen Mohd.Bhatti s/o Late Sh.Jamaluddin in the presence of marginal witnesses and the Ld.Trial Court has held in its judgment that the documents were not registered with the Registrar and, therefore, the judgment/order dt.15.1.2010 is liable to be set aside. The Ld.Trial Court has failed to appreciate that earlier the property was in the possession of the appellant and the Ld.Trial Court has Shahid Hussain Vs Ramesh Aggarwal & ors 5/18 failed to appreciate that the chain of documents of the previous owner of the suit property are with the appellant & he is the owner of the suit property.The Ld.Trial Court has also failed to appreciate that the appellant had constructed one room,bathroom,kitchen & latrine & no dispute arose at the time of said construction.The Ld.Trial Court has failed to appreciate the evidence as produced by the appellant particularly the testimony of the appellant himself as P.W1 & Sh.H.S Choudhary,UDC from Sub Registrar,NandNagri who was examined as P.W3 &who has proved that the property in question was purchased by Sh.Deen Mohd.from whom the plaintiff had purchased the property & Sh.Deen Mohd.Bhatti had purchased the suit property from Ajay Kumar and the said documents were duly registered before the Sub Registrar vide registration no.14068 Book no.4, Vol.2499 at page no.63 which is Ex. P.W 3/A(OSR) and the said witness has also proved that said property was registered with Sub Registrar on 3.2.1988 by Mefida Khatoon in favour of Sh.Riajuddin &the said record is Ex.P.W1/5 and the copy of registered receipt dt.3.2.88 is ExP.W 3/1 could not be impeached and it was further submitted that the respondents have not cross examined the said witness and,therefore,the testimony of the said witness has remained unchallenged. It is further submitted that so many triable issues have been left to be unframed i.e.as to whether the documents filed by the respondents are genuine documents or not & consequently declaring the documents in favour of the respondent as null & void and since these issues have not been answered, the order of the Ld.Trial Court be set aside and the appellant be given liberty to lead evidence on Shahid Hussain Vs Ramesh Aggarwal & ors 6/18 those issues. It is also stated that the cross examination of record keeper of Sub Registrar IV has also could not be conducted, who has proved the registrration of document in favour of the appellant. It is further submitted that the Ld.Trial Court has failed to appreciate that FIR no.591/97, u/s 448/468/471 IPC, P.S Trilokpuri has already been registered against Smt.Kanwar Anwar Khan and other respondents, which prima facie proves that the respondents are guilty of entering into the premises of the appellant and also of forging the documents in their favour and, therefore, the order of the Ld.Trial Court is liable to be set aside. The Ld.Trial Court has failed to appreciate that the documents filed by the respondents i.e. Ex.D.W 1/M dt.25.1.98 is a forensic expert report pertaining to the signature of one Sh.Suraj Singh who allegedly executed the general power of attorney in favour of Smt.Sarla Sharma and report has come to the effect that the said Sh.Suraj Singh has not signed the said document and the finding of the said forensic expert report also supports the version of the appellant which shows that the respondents had cheated the appellant by producing forged documents. It is further submitted that the respondents have not produced complete chain of documents before the Ld.Trial Court and further the respondents did not produce any record from any authority to show their ownership . Therefore, the respondents can not be held to be the owner of the property whereas the appellant has already filed a complete chain of documents in his favour which has been discarded by the Ld.Trial Court. The Ld.Trial Court has failed to appreciate the fact that Will filed by the respondents is not an authentic document and same has neither been Shahid Hussain Vs Ramesh Aggarwal & ors 7/18 signed by the beneficiary nor the same has been witnessed by any person. The CFSL report has been filed by the concerned IO which is against the respondents who are the accused in the above referred FIR. It is further stated that the impugned judgment/order dt.15.1.2010 is against the principles of natural justice and is bad in the eyes of law & if the impugned order is not set aside , the appellant shall suffer an irreparable loss and injury. It is accordingly, prayed that the order of the Ld.Trial Court be set aside and the appeal of the appellant be accepted and suit of the plaintiff be decreed.
5 Respondents/defendants have filed reply and arguments were partly heard and thereafter the appellant has filed another application u/o 41 rule 27 CPC seeking permission to lead additional evidence on the ground that during the course of arguments on the last date of hearing, it was argued on behalf of the respondent no.4 that the documents filed in the Ld.Trial Court in support of his ownership can not be read in evidence as the same were not proved in accordance with law unless the witnesses would have been examined by the appellant before the Ld.Trial Court for proving those documents and it is further stated that the appellant being a layman was totally dependent upon his counsel and was not aware of the proceedings and it was the duty of the lawyer to prove such document and therefore, it was the negligence on the part of the Ld.Counsel for the appellant who appeared in the Ld.Trial Court and since it is a settled law that due to the negligence of the Ld.Counsel, the appellant should not suffer and, therefore, it is a fit case where the present application u/o Shahid Hussain Vs Ramesh Aggarwal & ors 8/18 41 rule 27 CPC has to be allowed and the plaintiff/appellant be afforded an opportunity to lead further evidence in support of his claim to prove the ownership of the suit property and as such it was prayed that appellant be allowed to examine the witnesses and lead further evidence to prove his documents of ownership. 6 Respondents/defendants no.1 & 4, & respondents no.2 & 3 have filed their separate replies. Respondents no.1 and 4 in their reply have reiterated all the defences & facts as taken by them in the written statement i.e. that the appellant does not have any concern with the suit property. The documents as filed by the appellant are unregistered one. The appellant has failed to prove as to how these documents are admissible keeping in view the provisions of the section 17 r/w 49 of the Registration Act and even the appellant has admitted during cross examination that the documents submitted by him are unregistered and even the property which the appellant is alleging to have purchased from the previous owner is not matching with the documents he has filed on record and, therefore, the appeal of the appellant is liable to be dismissed.
7 As far as reply in the grounds of appeal are concerned, the respondent no.1 & 4 have basically defended the judgment of the Ld.Trial Court and submitted that the judgment of the Ld.Trial Court is reasoned one and based on legal proposition and the same is not liable to be disturbed.
Shahid Hussain Vs Ramesh Aggarwal & ors 9/18 8 Respondents/defendants no.2 & 3 have filed their separate reply taking preliminary objections that the appellant has no cause of action to file the present appeal and in fact the respondent no.2 & 3 had not appeared before the Ld.Trial Court as they were not properly served. Since they have been served now, they have filed their reply and it is submitted that the respondent no.4 had alleged in the Ld.Trial Court that he had purchased the suit property from answering respondent no. 2 through sale documents i.e.registered GPA, agreement to sell dt. 31.1.04 but it is submitted that the respondent no.2 has never sold her property in question to the respondent no.4 rather the answering respondent had taken Rs.1 lac from the respondent no.4 and the respondent no.2 mortgaged the said property in his favour and the respondent no.2 being an old uneducated lady was not informed about the sale documents and she was assured that the documents would be returned to her after the amount is returned and she has already returned the amount to the respondent no.4 but the respondent no.4 has not returned the documents to the appellant/plaintiff despite she is regularly demanding to get the documents cancelled as well as she was demanding the previous chain of documents but the respondent no.4 is denying the same and as such she would file the appropriate suit for cancellation of the executed documents against the respondent no.4.
9 As far as merits are concerned, it is denied that the answering respondent has ever forged any documents as alleged by the appellant or that the respondent no.1 was in illegal possession of the suit Shahid Hussain Vs Ramesh Aggarwal & ors 10/18 property and it is submitted that although the answering respondent has no concern with the respondent no.1 yet it is denied that the answering respondent no.1 had demolished the suit property on 2.2.04. Facts in reply to the grounds of appeal are generally denied and it is prayed that the appeal of the appellant be dismissed. 10 I have heard the arguments at length and perused the record. 11 After filing the application by the appellant u/o 41 rule 27 CPC, the court vide order dt.25.1.2011 had directed that arguments on the said application as well as on main appeal would be heard simultaneously and both i.e. application & the appeal would be disposed off simultaneously. Accordingly, application of the appellant u/o 41 rule 27 CPC is being disposed off first.
12 In the application u/o 41 rule 27 CPC , the only ground taken by the appellant is that the appellant is a layman and it was the duty of the Ld.Counsel to lead proper evidence and prove such documents which were necessary to prove the case of the appellant particularly by calling the witness from the office of the Sub Registrar to prove the documents filed by the appellant before the Ld.Trial Court and since the Ld.Counsel has committed this mistake, the appellant should not suffer for such mistake of the counsel and as such the appellant be permitted to lead additional evidence to prove such documents as are being highlighted so that the necessary documents be proved on record as per law.
Shahid Hussain Vs Ramesh Aggarwal & ors 11/18 Law u/o 41 rule 27 CPC is very specific and it reads as under:
Production of additional evidence in Appellate Court (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. But if_
(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) The party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, The appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
13 Coming to the facts of the present case. Court is of the opinion that the appellant was not diligent at all before the Ld.Trial Court. The documents were well within the knowledge of the appellant and he could have proved it. Mere fact that the appellant is a layman and was not aware of the legal technicalities, is not giving any support to the arguments of the appellant so as to entitle her the benefit of order 41 rule 27 CPC and although the appellant is held to be a layman yet keeping in view the long drawn litigation since 1997, it can not be held that the appellant was not aware with the legal proposition and in any case the negligence on the part of the Ld.Counsel for the appellant, if any is not a ground which is covered u/o 41 rule 27 CPC Shahid Hussain Vs Ramesh Aggarwal & ors 12/18 to prove the documents from the office of the Ld.Sub Registrar. It is rather observed that in the present appeal also, the appellant has submitted that he could not prove the record by calling the witnesses from the Ld.Sub Registrar and could not prove the documents in his favour. The documents which have been executed in his favour are unregistered GPA, Will and the registered receipt. Earlier the Ld.Counsel for the appellant had argued that he could not file the originals before the Ld.Trial Court as same were lying in the trial i.e.before the court in case FIR no.591/97, P.S Trilok Puri. Process was very simple. The appellant would have summoned that requisitioned file/record and could have proved those documents by filing certified copies for which the steps have not been taken.. Further, this court had summoned that file after this information was delivered to this court so that the contention of the appellant that the original documents were lying in the court of Sh.S K Arora, Ld.MM in the file pertaining to FIR no.591/97, P.S Trilok Puri and the court has observed that even in the summoned file the original documents which have been placed on record are unregistered documents. The documents executed by Sh.Mafida Khatoon is notarized GPA. There is only receipt which is registered one. Again Riajuddin had sold the suit property by way of unregistered power of attorney, Will and receipt to Sh.Ajay Kumar and Sh.Ajay Kumar, by way of same mode, has sold the alleged property to Sh.Deen Mohammad Bhatti. These documents are before the court and the court has perused the same. None of these documents are registered one. The appellant at the most would have proved the receipt which is registered and even the said Shahid Hussain Vs Ramesh Aggarwal & ors 13/18 receipt is proved then also that receipt does not create any right in the favour of the appellant regarding the immovable property. Even if the application of the appellant u/o 41 rule 27 CPC is allowed so as to allow him to prove the documents it would not have served any purpose as the court has perused the document & even considered in the above referred para and accordingly the court is of the opinion that nothing is likely to be achieved by the appellant except the delay. The court has perused the documents and none of the documents which may have the capacity to create a right in immovable property in favour of the appellant has been attached or filed in the said file which the appellant is trying to prove by way of application u/o 41 rule 27 CPC and, therefore, even looking from this angle also , the application is not required to be allowed. Accordingly, the application of the appellant u/o 41 rule 27 CPC is dismissed.
14 Coming to the facts of the appeal. The appeal of the appellant is also not supporting the contention of the appellant. Reason is obvious i.e. the first and foremost reason would be that the appellant has not come to the court with clean hands. In para no.1 of the grounds of the appeal, the appellant has stated that the documents were duly registered with Sub RegistrarIV on 20.8.91 in his favour by Sh.Deen Mohd.Bhatti s/o late Sh. Jamluddin in the presence of marginal witnesses. This court has summoned the file from the Ld.Trial Court and has perused the same. Neither the said documents are dt.20.8.91 nor the same are registered one. Documents as executed by Sh.Deen Mohd.Bhatti are dt.20.9.91 and the appellant has incorrectly written Shahid Hussain Vs Ramesh Aggarwal & ors 14/18 the date as 20.8.91. Further, the appellant has stated that the documents were duly registered with the Sub Registrar in his favour by Sh.Deen Mohd.Bhatti. I have perused the record. Sh.Deen Mohd.Bhatti has executed four documents and except the receipt, none of the other document is registered one. The court is unable to appreciate this assertion of the appellant. Earlier in the above referred para, it was stated that the appellant is a layman and mistake is on the part of the counsel who appeared before the Ld.Trial Court. What is mentioned by the appellant in the grounds of appeal herein also is contrary to the facts and contrary to the admission of the plaintiff in cross examination where he admitted that the documents in his favour are not registered. The appellant, therefore, has not come to the court with clean hands.
15 Not only this, there is yet another aspect of dismissal of the appeal of the appellant which is relevant to be mentioned over here and which goes to the root of the matter. The appellant had been claiming that he had purchased the suit property from Sh.Deen Mohd.Bhatti and Sh.Deen Mohd.Bhatti had purchased the same from Sh.Ajay Kumar and Sh.Ajay Kumar had purchased the suit property from Sh.Riajuddin and Sh.Riajuddin had purchased the same from Mafida Khatoon. I have perused all the said documents. 16 Sh.Mafida Khatoon had executed unregistered GPA, agreement to sell and receipt in favour of Sh.Riajuddin on 3.2.88 and the property number was not mentioned in that GPA as to which part of Shahid Hussain Vs Ramesh Aggarwal & ors 15/18 the property is being sold. However, from the boundary it was mentioned that property which is being conveyed by GPA is bounded as there is property of others in East and West side, in North , there is remaining portion of the said plot owned by Mafida Khatoon and In south side, there is 9 ft.gali which means that it was south face premises with single opening.
17 The same property was conveyed by Sh.Riajuddin to Sh.Ajay Kumar as per unregistered power of attorney & it was bounded as mentioned herein above.
18 However, when the property was sold by Sh.Ajay Kumar to Sh.Deen Mohd, it had different boundaries i.e.it described that the suit property is bounded as under i.e. in the East road 15 ft. wide, west property of others, north property of others and south10ft.wide road. 19 It means that the property which Sh.Ajay Kumar has conveyed to Sh.Deen Mohd. Bhattiwas having two sided property i.e.it had road in east side and one road also in south side.
20 This property has altogether different boundaries from the property which Smt.Mafida Khatoon originally conveyed to Sh.Riajuddin and which according to the appellant is the same property which he had purchased from Sh.Deen Mohd Bhatti. No explanation has been given and accordingly Sh.Deen Mohd. also sold the property to the appellant as mentioned in unregistered power of Shahid Hussain Vs Ramesh Aggarwal & ors 16/18 attorney which he purchased as it was also bounded i.e.East 15 ft., West others, North others and south 10 ft.wide road. No explanation has been given in the entire appeal with respect to this discrepancy. Therefore, the contention of the respondents which they have raised in the written statement that the appellant has failed to connect himself with the suit property is well found and this becomes more relevant when property number is not written in any of the document rather in the GPA which was executed by Sh.Ajay Kumar in favour of Sh.Deen Mohd.and GPA(unregistered) & which were executed by Sh.Deen Mohd. Bhatti in favour of the present appellant, are not conveying any previous history of the suit property as to how they have become the owner of the suit property & in what capacity they have executed these documents and the fact that who was the earlier owner of the suit property has not been mentioned in the documents. Even if this would have been correct then there is no document on record to show that as to how Smt.Mafida Khatoon had become the owner of the suit property & from whom she purchased the suit property. Complete previous chain of the documents , therefore, have not been filed by the appellant on court record. Therefore, from this angle also, the appeal of the appellant is liable to be dismissed. 21 As far as contention of the appellant that the Ld.Trial Court has not appreciated the fact with respect to FIR which has been registered against the respondents or the respondents have not been able to prove that they are the owners of the property or the IO has conducted the investigation which is against the respondents are concerned, this Shahid Hussain Vs Ramesh Aggarwal & ors 17/18 court is of the opinion that by this judgment, the court is not creating any right in favour of the respondents but what the court is adjudicating upon is only as to whether the appellant has any right over the suit property or not. It is specifically clarified and made clear that in any case, the court is not referring any opinion with respect to the ownership of the respondents in the suit property, neither this was an issue before the Ld.Trial Court nor before the appellate court nor the respondents have filed counter claim before the Ld.Trial Court. The Ld.Trial Court as well as appellate court was only concerned with the issue as to whether the appellant was the owner of the suit property or whether he is entitled for possession of the suit property being owner of the same. Therefore, all other findings which has been raised by the appellant in the grounds of appeal are not well found. The issues which according to the appellant have not been answered were never agitated by the appellant before the Ld.Trial Court nor the same is subject matter of the present appeal. The criminal case is being tried by the court competent jurisdiction and the law shall take its own course. The respondents/defendants have their own independent versions and if they have to prove their ownership, they have to prove in accordance with law only and just by failure on the part of the appellant to prove its case , the defendants can not claim any right over the suit property and the court is of the opinion that the defendants have to prove their assertion in their own suit. 22 As far as dispossession of the appellant from the suit property is concerned, the appellant has not filed the suit u/s 6 of the Specific Shahid Hussain Vs Ramesh Aggarwal & ors 18/18 Relief Act where he had not to prove the title of the suit property and where he had merely to prove that he was in possession of the suit property 6 months prior to filing of the suit. The respondents/defendants infact had taken this objection in the written statement but since the appellant has not filed any suit under section 6 of the Specific Relief Act, therefore, this part of the contention of the appellant is also not well found.
23 I have perused the judgment of the Ld.Trial Court. The Ld.Trial Court has given its judgment in accordance with law particularly keeping in view the section 17 r/w section 49 of Registration Act and since the documents of the appellant are not registered one, they are not having any capability to create any right of ownership regarding immovable property/suit property in favour of the appellant. 24 Keeping in view the totality of the facts and circumstances of the case, this court is of the opinion that the order of the Ld.Trial Court does not suffer from any material irregularity or legal infirmity rather in terms of the findings of this court, the order of the Ld.Trial Court appears to be well found and reasoned one and therefore, the appeal of the appellant is dismissed. A copy of the order be sent to the Ld.Trial Court alongwith the Trial Court Record.
Appeal file be consigned to the R/R.
ANNOUNCED IN OPEN (S.S.MALHOTRA)
th
COURT ON 8 NOVEMBER, 2011 ADDL.DISTRICT JUDGE
KKD COURTS/DELHI
Shahid Hussain Vs Ramesh Aggarwal & ors
19/18
Shahid Hussain Vs Ramesh Aggarwal & ors
20/18
Shahid Hussain Vs Ramesh Aggarwal & ors