Delhi District Court
Bidhi Singh (Since Deceased) Through ... vs . Kamla Yadav on 3 February, 2016
IN THE COURT OF MS. RACHNA TIWARI LAKHANPAL
SCJ/RC(WEST), TIS HAZARI COURTS, DELHI
Ex. No. 49/14
Bidhi Singh (since deceased) through LRs Vs. Kamla Yadav
Date of filing of the objections : 20.11.2014
Date of reserving order : 27.01.2016
Date of pronouncement : 03.02.2016
ORDER
1. Vide this order, I shall dispose off objections filed by the judgment debtor.
2. BRIEF BACKGROUND: Before proceedings further, I deem it appropriate to narrate the background of ligations. The present execution petition has been filed for the execution of decree and judgment dated 02.04.2012 passed by one of the predecessor of this court. JD went into first appeal against the judgment and decree, which was dismissed by the first Appellate Court vide order dated 14.08.2014. Thereafter, JD went into second appeal, which was also dismissed vide order dated 28.04.2015 by the Hon'ble High Court. Then, JD went before the Hon'ble Supreme Court by filing Special Leave Petition to appeal, which was disposed off vide order dated 15.05.2015 whereby it was observed that the petitioner was at liberty to file appropriate review application before the Hon'ble High Court itself. Now, the review petition before the Hon'ble Ex. No. 49/14 Page.....1/10 High Court is pending and is fixed for 15.02.2016.
3. Indisputably, there is no stay in favour of the JD in operation of the execution proceedings. Today, again adjournment was sought on behalf of the JD on the ground of personal difficulty of Ld. Counsel of JD. However, perusal of the ordersheets reflected that JD has been taking adjournment on one ground or other for arguments on objections.
4. On 16.05.2015, it was observed by this court that: "Adjournment has been sought by Ld. Proxy counsel for the JD on the ground that main counsel is not available. No plausible ground made out for seeking adjournment. However, further, it is submitted by Ld. proxy counsel for the JD that JD has gone before the Hon'ble Supreme Court; whereby the matter has been remanded back to Hon'ble High Court for review of order and he would file the same by 19.05.15.
Put up for filing of the said order and arguments on 19.05.15. It is made clear that if on the next date of hearing, arguments are not addressed, the objections will be disposed off upon the basis of material on record."
5. On 19.05.2015, Ld. Counsel for the JD appeared and arguments were heard. However, it was requested by Ld. Counsel for the JD that objections be kept in abeyance as JD was given liberty to file review petition. Thereafter, again the matter was adjourned as the order on the point of proceeding further to issue warrants or not, was not ready Ex. No. 49/14 Page.....2/10 and on 06.06.2015 again, Ld. Counsel for the JD submitted that review application has been filed and requested for adjournment of the matter. This court kept on adjourning the matter upon the request of Ld. Counsel for JD and simultaneously the statements of bailiff and DH were recorded.
6. On 18.12.2015, again request was made by Ld. Counsel for the DH that as there was no stay in favour of the JD in the review petition, the execution petition may be proceeded further in accordance with law. However, as the present objections were pending, it was observed by this court that as there was no stay in the review petition, the matter would be proceeded further and the matter was adjourned for 27.01.2016 for arguments on objections.
7. On 27.01.2016, adjournment was sought by husband of the JD, again on the ground that review petition is pending. Whereas, it was specifically observed by this court on the last date of hearing that the execution proceedings will be proceeded in accordance with law. Hence, having seen no plausible reason for adjournment, arguments were heard on the objections on behalf of the DH and it was observed that objections will be disposed off upon the basis of material on record. However, despite that, both the parties were given liberty to give written arguments and besides that Ld. Counsel for the JD was given liberty to address oral arguments in the morning on the date of order i.e today. However, no Ex. No. 49/14 Page.....3/10 written arguments has been filed till today by Ld. Counsel for the JD as observed in the morning, no oral arguments were addressed. Hence, I proceed on to pass the order upon the basis of material on record. Not only this, it was also observed by this court in the order dated 31.10.2014 (during the pendency of the second appeal before the Hon'ble High Court) that even if, in the second appeal, order is passed in favour of the JD then by virtue of Section 144 CPC, the possession may be restored to him.
8. PRESENT OBJECTIONS: In the present objections, it is contended that originally the suit was filed by Sh. Bidhi Singh upon the basis of his title. Decree of possession was passed in his favour. However, there was no proof of any nature with regard to the title in respect of the suit land as deposed by Patwari PW3 that earlier to 31.05.1990, no mutation in the name of late Sh. Bidhi Singh ever existed. Further, mutation was existing in the name of Ram Bakshi and Ors in the year 19481949. Thereafter, mutation existed qua Khasra No. 1647 in the revenue record in favour of M/s Engineering Corporation till 31.05.1990. Hence, there was nothing in the mutation record as to how and on what basis the said late Sh. Bidhi Singh has mutated his name in Khasra no. 1647 in place of M/s Engineering Corporation.
9. It is further contended that late Sh. Bidhi Singh also filed a judgment of Sh. R.K. Yadav, the then Sub Judge. The JD was not the Ex. No. 49/14 Page.....4/10 party to that litigation, which was against the MCD and DDA. The said Engineering Corporation was also not a party in that suit. The said suit was decided in favour of Sh. Bidhi Singh but that suit was only for permanent injunction. However, in the absence of any proof of ownership, Sh. Bidhi Singh cleverly and by misleading started alleging everywhere in litigations describing the said land in Khasra No. 1647 to 1649 belonging to him. There was no mutation in the name of Sh. Bidhi Singh in Khasra No. 1648 or 1649.
10. Further, it is contended that Sh. Bidhi Singh has filed a wrong site plan and question of delivery of possession of such property has to be adjudicated upon as the DH has filed wrong site plan. There is no demarcation. Therefore, without any demarcation, it cannot be said that as to which portion of the land falls in Khasra No. 1647, 1648 or 1649. The site plan is disputed. DH made a fraudulent document and claimed his title upon the basis of forged document dated 26.02.1990, whereas he had no proof of title. Hence, it is prayed that the execution petition be dismissed.
11. REPLY TO THE PRESENT OBJECTIONS: In the reply to the present objections, dismissal of the appeal has been mentioned. It is further mentioned that all the disputes relating to merit of the case have already been discussed and decided by ld. trial court and the Appellate Court in favour of the plaintiff and this executing court cannot go beyond Ex. No. 49/14 Page.....5/10 the decree and judgment. The site plan filed and proved by the DH. The issue of the title of the plaintiff has already been decided by ld. trial court and Appellate Court. It was denied that the property cannot be identified without demarcation.
12. I have heard the arguments and perused the record.
13. COURT'S FINDINGS: As far as the contention with regard to false and fabricate document of revenue department and no document of the title of the plaintiff is concerned, the Hon'ble High Court in the judgment of regular second appeal bearing RSA no. 266/14 observed as herein under (the relevant portion is being reproduced): " All these issues were decided against the present appellant/defendant. So far as the ownership of the land in question is concerned, it was observed by the ld. Trial court that the respondent has been able to prove that in a previous litigation, between the respondent and the DDA, which was decided in favour of the former that the land in Khasra No. 1647 was not forming part of the acquired land. The relevant documents were duly exhibited in this regard. On the basis of the nonacquisition of the land belonging to the respondent, the said matter was decided against the DDA and in favour of the respondent/plaintiff right up to the Supreme Court. These documents and facts were taken as establishing the ownership of Khasra No. 1647 on which the said land was situated.
Ex. No. 49/14 Page.....6/10Accordingly, the decree of possession was passed in favour of the respondent/plaintiff and against the present appellant. "
"....I find force in this contention of the ld. senior counsel for the respondent that the issue of ownership of the respondent/plaintiff in respect of the land in question stands conclusively established on the basis of the previous litigation which has been proved on record, both between the respondent/plaintiff and the DDA as well as the respondent/plaintiff and the present appellant in respect of adjoining parcel of land measuring 220 sq. yards of land. Therefore, this plea cannot be deemed to be raising a question of law much less but substantial question of law."
14. As far as other contention with regard to false and fabricated revenue record is concerned, this issue was already discussed and adjudicated by the trial court in its judgment dated 02.04.2012. The relevant portion of the said judgment is being reproduced, which is herein as under: " Ld. Counsel for the defendant has argued that the judgment of Sh. R.K. Yadav in a suit between the plaintiffs and DDA is judgment in personam and is not binding upon the parties. He has further argued that orders of SDM concerned relied upon by the plaintiffs are not reliable since not only that the mutation in the revenue record is not an ownership proof but also that no Ex. No. 49/14 Page.....7/10 government authority will pass the number of orders so frequently as claimed by the plaintiffs. It is stated that in the earlier suit, the plaintiffs have relied upon the mutation order dated 26.02.1990 Mark A whereas in the present suit as relied upon the order dated 23.03.1990 Ex. PW4/2 and Ex. PW4/4 and the entire in the revenue record Ex. PW 4/5 are not of no use being forged and fabricated documents."
" ...I also do not find any force in the argument of Ld. Counsel for the defendant that the mutation orders are fabricated. The mutation order dated 26.02.1990 as well as Ex. PW4/2 and Ex. PW4/4 were passed by the same SDM. These orders show that in view of the judgment of Ld. Sub Judge, Delhi and Ld. ADJ, ER15 to ER20 are owned by the plaintiffs and should be mutated in their name. What is the fault of the plaintiffs, if two separate orders have been passed for mutating the property in the name of the plaintiffs. The argument of Ld. Counsel for the defendant that these orders are manufactured has no force since the mutation order talks about the mutation in view of the judicial order. Therefore, I do not find any fabrication in the mutation order to be done in the name of the plaintiffs. As far as the argument that mutation is not a title document is concerned, though it is correct that the mutation entries are only for revenue purposes, but it does not mean that a Ex. No. 49/14 Page.....8/10 person does not have the title in the property. The title of the plaintiffs was confirmed in two different suits - one against the DDA and another against the defendant and the mutation based on a judicial order and therefore, the plaintiffs have title in the properly."
15. From the bare perusal of relevant portion of the order of second Appellate Court as well as the judgment of Ld. Trial court, it is apparent that these contentions were already raised by the JD, which were decided uptill second Appellate Court, whereby the judgment and decree of trial court was affirmed. The JD cannot be allowed to reagitate the same issue to delay the further execution of the judgment and decree.
16. As far as the contention of site plan is concerned, this issue was also raised by the JD and discussed by the trial court. The site plan was proved and relief was given by the trial court as per the site plan. Now the JD cannot be allowed to reagitate the issue on merit that the site plan was not proved. As the site plan was proved, the identification of the suit property can be done as per the site plan. Therefore, the contention with regard to non demarcation of the plot is also having no basis as the suit property can be identified upon the basis of proved site plan. Accordingly, objections are dismissed.
17. Hence, Warrants of possession qua the suit property i.e an area measuring 22' 6'' x 90 situated at Khasra No.1649 & 1647 in the Ex. No. 49/14 Page.....9/10 revenue estate of Village Naraina, Inderpuri, New Delhi, more specifically shown in red colour in the site plan Ex. PW1/1 (i.e a part of property no. ER15 to ER20) be issued against the JD upon filing of PF/RC.
18. Put up before ACJ on 01.03.2016 and for report before this court on 18.03.2016.
ANNOUNCED IN THE OPEN (RACHNA TIWARI LAKHANPAL)
COURT ON 03.02.2016 SCJ/RC(WEST)/ DELHI
Ex. No. 49/14 Page.....10/10