Delhi District Court
Sahib Singh & Anr vs . Atar Singh on 15 November, 2019
IN THE COURT OF MS. VANDANA JAIN,
LD. ADDITIONAL DISTRICT JUDGE07, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
RCA No.86/2019
Sahib Singh & Anr Vs. Atar Singh
In the matter of :
1. Sh. Sahib Singh S/o Sh. Ramwaroop Singh,
2. Smt. Manorama Devi W/o Sh Sahib Singh
Both R/o F235 (Rear Portion), Gali No. 12,
Harsh Vihar, Harsh Vihar Extn. PartIII,
Jaitpur, Badarpur, New Delhi110044
...............Appellants
Versus
Attar Singh S/o Sh. Ramswaroop Singh
R/o F235 (Front Portion), Gali No. 12,
Harsh Vihar, Harsh Vihar Extn. PartIII,
Jaitpur, Badarpur, New Delhi110044
.............Respondent
Date of institution: 31.05.2019
Date of Reserving: 22.10.2019
Date of pronouncement of order : 15.11.2019
Order on Appeal
1. This is an appeal filed by appellants/defendants (hereinafter referred to as appellants) against the impugned judgment and decree dated 29.04.2019 against the plaintiff/respondent (hereinafter referred to as respondent).
2. The brief facts as averred in the plaint filed by the respondent before Ld Trial Court are that respondent is the owner of entire property bearing H. No. Sahib Singh & Ors Vs. Atar Singh Page No. 1 of 15 F235, Gali No. 12, Harsh Vihar, Hari Nagar Extn PartIII, P.O. Badarpur, New Delhi110044 (hereinafter referred to as suit property) and in part possession of the suit property comprising of one room and kitchen in the front portion and common area including bathroom, lavatory, terrace and open areas were used jointly with the appellants. Appellant no. 1 is the younger brother of the respondent and appellant no. 2 is the wife of appellant no. 1.
3. It is further stated that respondent had completed his 12 th class from district Mainpuri and after completing ITI course, he came to Delhi and resided at S30, Private Colony, Sriniwas Puri for almost 1516 years on rent and later on purchased the plot bearing F235, measuring 50 Sq Yds out of Khasra No. 793 situated in village Jaitpur and abadi known as Jaitpur Extn, Badarpur after taking loan from his fatherinlaw and out of his own savings and a GPA, Agreement to Sell dated 06.06.1996 were executed by one Bhagwan Singh in favour of the respondent. The possession of the plot was handed over to the respondent in November, 1996. It is further averred that later on having accumulated funds with the PF office and his own savings from the employment, respondent starting constructing the 50 Sq Yds of plot around in the year 2001 which got completed around in the year 2002. It is further averred that respondent had tenanted the suit property for almost two years as the respondent was residing at S30, Pvt Colony, Sriniwas Puri, New Sahib Singh & Ors Vs. Atar Singh Page No. 2 of 15 Delhi and his children were studying there. It is further averred that respondent called upon his brother i.e. appellant no. 1 only to stay in the said accommodation, however, appellant no. 2 also moved in the said accommodation without consent of respondent, whereas respondent moved in the said accommodation in the year 2011 because the education of his children too got completed and he asked his brother (appellant no. 1) to vacate one room (rear portion). It is further averred that appellant no. 2 was again asked to vacate the premises around the year 2012 before panchayat because of difficulty in the residence of the plaintiff and his family members. Thereafter, appellant no. 2 agreed and sought three years to vacate citing that his children too are young and studying. Thereafter, another panchyat was necessitated in the year 2016, where upon, appellant no. 2 sought further time until March, 2017 but did not vacate one room in the rear portion of the house. It is further averred that appellant no. 1 has allegedly filed a false and frivolous complaint with police. Thereafter, respondent was constrained to lodge a complaint dated 02.06.2017 against his younger brother i.e. appellant no. 1 as he was not vacating one room. Thereafter, civil suit was filed before Ld Trial Court seeking decree of mandatory injunction seeking eviction and permanent injunction which was decreed vide impugned order dated 29.04.2019. Hence, this appeal.
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4. Written statement was filed by appellants. It is further averred that prior to purchase of the suit property, appellant no. 1 and respondent used to reside in Sriniwaspuri jointly as name of both the appellant no. 1 and respondent were reflected in the ration card. It is stated that suit property was jointly purchased by appellant no. 1 and respondent in the year 1996 by contributing the equal amount at that time, however, just to mark the respect, the appellant no. 1 always kept respondent on front and he was given each and every responsibility for paying the installment of the plot to the colonizer of property in question alongwith portion under occupation of the respondent was purchased by respondent and appellant no. 1 on installments basis on contributing equal amount. Appellant no. 1 was assured by the respondent that suit property will be registered by legal documents in the name of both but the appellant no. 1 was shocked when respondent starting demanding the ejectment of the premises in question from the appellant no. 1 in the month of April, 2017 and started threatening him to vacate the suit property.
5. Replication to written statement of appellants was filed by respondent wherein averments made in the written statements were denied.
6. After completion of pleadings, following issues were framed on 05.02.2018.
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1. Whether there is no cause of action for filing the present suit ? OPP
2. Whether the plaintiff has not approached the court with clean hands and therefore this suit is liable to be dismissed ? OPD is entitled to decree of permanent injunction as prayed for ? OPP
3. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction ? OPD
4. Whether the plaintiff is entitled to possession of the suit property i.e. 1 bed room (rear portion) measuring 15X10 feet located inside H. No. F 235, Gali No. 12, Harsh Vihar, Hari Nagar Extn, PartIII, Badarpur as shown in red in site plan of the plaintiff ? OPP.
5. Whether the plaintiff has not paid the proper court fee ? OPD.
7. Then parties led their evidence and after hearing parties, suit was decreed by impugned order dated 29.04.2019.
8. Ld counsel for appellants has argued that Ld Trial Court has failed to consider that the issue of ownership was to be incorporated as an additional/preliminary issue because the appellants have disputed the absolute ownership of the respondent as well as the documents relied upon by respondent.
9. It is further argued that Ld Trial Court failed to consider the settled proposition of law that prayer of declaration was not made out in the suit and Sahib Singh & Ors Vs. Atar Singh Page No. 5 of 15 suit was bound to be dismissed as it was a suit for possession/mandatory injunction only and respondent did not amend the suit seeking relief of declaration to claim ownership over the suit property. It is further argued that Ld Trial Court has failed to consider the legal implication as well as the contents in the documents relied upon by respondent. It is further argued that Ld Trial Court failed to consider the implication of Section 67 and 68 of the Indian Evidence Act. It is further argued that Ld Trial Court failed to consider the evidence of DW Vir Sahay Singh. It is further argued that impugned order is liable to be set aside.
10. On the other hand, Ld counsel for respondent/plaintiff has argued that there is no infirmity in the judgment passed by Ld Trial Court. It is argued that the execution of documents was never denied by appellants before the Ld Trial Court, so the grounds taken in appeal are false and frivolous and appeal is liable to be dismissed.
11. I have heard the arguments have perused the record carefully.
12. Perusal of the grounds taken in appeal by the Ld counsel for appellants as has been given above clearly shows that main argument of the appellants is about the documents i.e. GPA, agreement to sell, affidavit etc being Sahib Singh & Ors Vs. Atar Singh Page No. 6 of 15 unregistered and unstamped, not having complete particulars and declaration of title not being sought in respect of the property in question. In this regard, pleadings of the case are very relevant. The appellants were the defendants in the suit before Ld Trial Court and they have duly filed written statement and appellant no. 1 has appeared as DW1 during evidence. Neither in the written statement nor in the affidavit of DW1 i.e. appellant no. 1 herein had disputed the execution of the documents vide which the property was purchased by the respondent. Para no. 3 and 4 of the affidavit of evidence of DW1/appellant no. 1 is reproduced herein as under: "3. I say that prior to the purchase of the property bearing no. F235, Gali No. 12, Harsh Vihar, Hari Nagar Extension, PartIII, Jaitpur, P.O. Badarpur, New Delhi110044, both deponent and plaintiff were used to reside in Sriniwaspuri jointly. The documents filed by the plaintiff corroborates the submissions made herein above as name of the plaintiff and deponent reflects in the ration card bearing N. APL06020020. The copy of the same has been filed by the plaintiff and the same is on record which clearly states that both plaintiff and deponent were residing together in Sriniwaspuri i.e. at S30, Private Colony, Sriniwaspuri, New Delhi110065 and thereafter both plaintiff and deponent for better prospect in future Sahib Singh & Ors Vs. Atar Singh Page No. 7 of 15 purchased the property in question alongwith the premises occupied by the plaintiff in the year 1996 jointly by contributing the equal amount at that time, however, just to mark the respect the deponent always kept plaintiff on front and he was given each and every responsibility for paying the installment of the plot to the Colonizer as the property in question alongwith the portion under occupation of the plaintiff was purchased by plaintiff and deponent on installment basis on contribution equal amount.
4. I say that the deponent respectfully submits that the plaintiff is the elder brother of deponent and always considered him his mentor and believed each and every version of the plaintiff as gospel truth. Considering the same the deponent assigned each and every responsibility to the plaintiff but made the plaintiff very clear the document in respect of the property in question and the portion under occupation of plaintiff should be registered by legal documents in the name of the plaintiff as well as deponent.
Believing this deponent never asked from the plaintiff about the documents of property in question and also the portion under occupation of plaintiff. But the deponent was come under shock when plaintiff started Sahib Singh & Ors Vs. Atar Singh Page No. 8 of 15 demanding the ejectment of the premises in question from the deponent in the month of April 2017 and on the refusal of the deponent the plaintiff started threatening him to vacate the same along with his family. On this the deponent, defendant no. 2 and his family members made two various complaints first in June, 2017 and second complaint on 30.08.2017 and also various oral complaints to the concern police station but police officials did not intervene in the matter considering the nature of matter as civil in nature."
13. Perusal of these paragraphs in the affidavit of evidence of DW 1/appellant no. 1 herein clearly shows that purchasing of the property by the respondent (plaintiff) and appellant no. 1 has not been disputed. The only objection taken is that property was jointly purchased by both the brothers though respondent fraudulently got the documents executed only in his favour which appellants came to know in the year 2017. The objection taken with respect to registration of the documents, the stamping of the documents, particulars given in the documents can be considered only in case the execution of those documents have to be proved, however, this is not the case herein. As far as agreement to sell is concerned, that was not required to be registered in the year 1996 as the amendment with respect to compulsory registration of agreement to sell has come in the year 2001. As far as Sahib Singh & Ors Vs. Atar Singh Page No. 9 of 15 insufficient stamping is concerned, Section 36 of the Indian Stamp Act clearly provides that in case the objection has not been taken with respect to insufficient stamping at the time of exhibition of these documents during evidence, this objection cannot be taken later on. Reliance is placed upon Javer Chand & Ors Vs. Pukhraj Surana AIR 1961 SC 1655 wherein it was held that: "In our opinion, the High Court misdirected itself, in its view of the provisions of Section 36 of the Stamp Act. Section 36 is in these terms: "Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped."
That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceedings on the ground that the instrument had not been duly stamped. The only exception recognized by the section is that class of cases contemplated by Section 61 which is not material to the present controversy. Section 36 does not admit of other exceptions. Where a question as to Sahib Singh & Ors Vs. Atar Singh Page No. 10 of 15 the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped it has to be decided then and there when the document is tendered in evidence. Once the Court rightly or wrongly, decides to admit the document in evidence so far as the parties are concerned the matter is closed. Section 35 is in the nature of a penal provision and has farreaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the documents has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses the fact that the hundis were marked as Ex P.1 and P.2 and bore the endorsement 'admitted in evidence' under the signature of the Court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the Court applying its mind to th question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the Sahib Singh & Ors Vs. Atar Singh Page No. 11 of 15 footing that the document was an exhibit in the case and has been used by the parties in examination and crossexamination of their witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction."
14. As far as further argument with respect to seeking declaration with respect to title is concerned, the declaration is only to be sought only when the title of the party is under cloud, however, it is not disputed that from whom the property has been purchased. The year of the purchase of the property is not disputed. It is alleged that respondent is only a joint owner of the property and the appellant no. 1 herein also contributed money towards its purchase. So the question herein is not of title but it has to be seen whether any contribution was made by the appellant no. 1 towards purchase of the property or not. There is no evidence on record to this effect that any amount was ever contributed towards purchase of the property in question by appellants though it has been pleaded in the written statement as well as in Sahib Singh & Ors Vs. Atar Singh Page No. 12 of 15 the affidavit of evidence of appellant. Since the execution of these documents in favour of respondent/plaintiff is not denied, therefore, there was no need to seeking any declaration by the respondent before Ld Trial Court.
15. It is further pertinent to mention here that entire defence of the appellants was that property was jointly purchased by him and his brother i.e. respondent, however, he did not know that the respondent had got the documents executed in his favour only and he came to know about the said fact only in the year 2017. On the contrary, the other two witnesses who has deposed in support of appellants i.e. DW2 fatherinlaw of appellant no. 1 and DW3, brother of appellant no. 1 and respondent have stated otherwise.
16. DW2 Vir Sahai Singh (fatherinlaw of appellant no. 1) has stated in para no. 4 of his affidavit of evidence that: "4. That at the time of purchase of the property in question, the documents of the property in question was got prepared in the name of plaintiff, despite my objection, but my objection was settled by assuring me that the documents which are prepared in respect of the property in question, are not legally tenable, as the same are "Kache Paper".
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17. This paragraph clearly shows that at the time of marriage of the appellant no. 1 with appellant no. 2, his fatherinlaw was aware that the property was purchased only in the name of the respondent, however, the appellants submitted that he came to know about this fact only in the year 2017. It is very unlikely that stranger who was about to marry his daughter with the appellant no. 1 would know of the actual facts and the appellant no 1 would be unaware of the same. It is unbelievable.
18. Similarly, brother of both parties i.e. DW3 Bhupender Singh has stated in affidavit of evidence in paragraph no. 5 that: " That the defendant no. 1 alongwith the plaintiff purchased a plot in the year 199091 measuring 50 Sq Yds, in Begumpur, Delhi. The particulars of the plot is not know to me, but it is a matter of fact. But the documents of the said plot were executed by the seller in favour of plaintiff, however, the defendant no. 1 out of love and affection being the real brother, did not object to the same at that time."
19. This paragraph also shows that though property was purchased by both appellant no. 1 and respondent but the documents were executed by the seller in favour of respondent and appellant no. 1 did not object to the same out of Sahib Singh & Ors Vs. Atar Singh Page No. 14 of 15 love and affection, respondent being his real brother. This paragraph also shows that appellant no. 1 was aware at the time of the execution of the documents that they were being executed in the name of the respondent only.
20. The testimony of DW2 & DW3 who had come in order to support the case of the appellants had deposed contrary to what was the main defence of the appellants before Ld Trial Court and thus falsifying the defence of the appellants therein. The objection taken in the appeal by the Ld counsel for the appellants revolves around the lapses in proving the execution of the documents in favour of the respondent which are not at all disputed. Therefore. I do not find any merits in appeal and there is no infirmity in the order passed by Ld Trial Court. Impugned order is upheld. Appeal stands dismissed.
21. Appeal file be consigned to Record Room. TCR alongwith copy of the order be sent back to concerned court. Decree sheet be prepared accordingly.
Digitally signedby VANDANA
VANDANA JAIN
JAIN Date:
Announced in the open court 2019.11.15
14:53:17 +0530
on 15.11.2019 (VANDANA JAIN)
ADDITIONAL DISTRICT JUDGE07/
SOUTH EAST DISTRICT/SAKET COURTS/
NEW DELHI/15.11.2019
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