Indian Kanoon - Search engine for Indian Law

Delhi District Court

New House No. B­364 vs Shakuntla Devi on 19 December, 2019

     IN THE COURT OF MS. SAVITA RAO , ADJ/ PO­MACT, (NE)
               KARKARDOOMA COURTS, DELHI


RCA DJ No. 20/19
CS No. : 371/10

IN THE MATTER OF :­

Shamim Khatoon
W/o Late Sh. Rais Khan
R/o Old H. No. B­70/449, Gali no. 6
Rajiv Nagar, Mandoli, Delhi - 93

New House no. B­364, Gali no. 6
Rajiv Nagar, Mandoli, Delhi - 110093
                                            ........ Appellant

         Vs.

Shakuntla Devi
W/o Shish Pal
R/o House no. A­360, Meet Nagar
Shahdara, Delhi ­ 110093
                                            ...... Respondent

Date of Institution of Appeal : 12.02.2019
Date of Arguments             : 10.12.2019
Date of Judgment/Order        : 19.12.2019

                             JUDGMENT

1. This is an appeal filed by appellant aggrieved by the judgment passed RCA DJ No. 20/19 1/8 by Ld. Trial court dated 21.09.2012. Plaintiff had filed suit for possession, recovery of mesne profits and damages, claiming herself to be the owner of property bearing no. B­70/449, Street no. 7, Rajeev Nagar, Near Bank Colony, Shahdara, Delhi . Said property was purchased by plaintiff from the defendant vide GPA, Agreement to sell, affidavit, receipt and will etc. dated 03.01.2004 but the possession of the property had not been handed over to the plaintiff as defendant had sought six months time so that she could make arrangement for her new accommodation. Rent agreement in this respect was executed between the parties and thereby defendant was permitted to stay in the abovesaid property as tenant. However, defendant not only failed to make the payment of rent but also failed to vacate the premises despite issuance of several notices, constraining the plaintiff to file the suit against the defendant.

2. Defendant appeared in the matter and filed the written statement. Relationship of landlord and tenant between the parties was denied as well as the claim of ownership of the plaintiff. It was submitted that plaintiff had forged the documents. Besides that, the defendant had revoked the GPA and also cancelled the sale deed vide documents dated 25.5.2006 and 6.6.2006 respectively. As submitted, prior to cancellation of the said documents, defendant had sent notice dated 22.5.2006 to the plaintiff. It was also submitted that the plaintiff had advanced loan in sum of Rs. 60,000/­ for the period of six months to the defendant, for which purpose certain documents were executed after obtaining the signatures upon certain blank papers in RCA DJ No. 20/19 2/8 favour of plaintiff and the husband of plaintiff had taken all the original papers of the property on the assurance that if she refunds the money, she will get back those documents and plaintiff shall re­execute the documents in favour of defendant. Despite defendant having repaid the sum of Rs. 60,000/­ , plaintiff executed the documents of the property in her favour in collusion with her husband and one Sh. Vedpal and then filed the present suit.

3. After framing of issues, matter was listed for PE when defendant stopped appearing in the matter and was proceeded ex­parte. Plaintiff led ex­parte evidence in the matter and after conclusion of trial, Ld. trial court vide order dated 21.9.2012 passed ex­parte decree for possession and recovery of damages/mesne profits in favour of plaintiff. Execution proceedings were initiated against the defendant and thereafter defendant preferred an application under order 9 Rule 13 CPC before Ld. trial court which was dismissed and appeal filed against the said order was also dismissed and then the defendant filed the instant appeal alongwith an application for condonation of delay.

4. As submitted, the appellant came to know about the passing of the impugned judgment only on 15.7.2016 when the Bailiff approached the suit property for getting the same vacated. Counsel for appellant was contacted when she got to know that her husband did not pay the advovate's fee and due to this reason, advocate also did not appear before Ld. trial court. As submitted, husband of appellant/defendant was in bad habits. When the RCA DJ No. 20/19 3/8 bailiff came to the house of appellant on 15.7.2016, she inquired from her husband about the fate of the case and after contacting her counsel, she found negligence of her counsel as well, who did not try to approach the appellant even on a single occasion, despite knowing bad habits of husband of appellant. Husband of appellant died on 19.8.2017 and therefore she could not pursue her case, though her lawyer was pursuing the case before Ld. trial court after filing of the application under order 9 rule 13 CPC, which was also dismissed and after the dismissal of the appeal against the order on application under order 9 rule 13 CPC, appellant was advised to file the instant appeal.

5. To support his arguments towards condonation of delay, Ld. Counsel for appellant placed reliance upon (2010) 169 DLT 350 : (2010) 159 PLR 1 titled as Sushila Vs. Mahinder Sharma & Ors. , AIR 1987 Supreme Court 1353 titled as Collector, Land Acquisition & Anr. Vs. Katiji & Ors. , AIR 1987 Supreme Court 1354, V (2015) SLT 487 titled as GMG Engineering Industries & Ors. Vs. ISSA Green Power Solution & Ors. , Civil Appeal no. 318 of 2015 titled as Chandan Singh Vs. Nationa Insurance Co. Ltd. & Anr. , JT 1995 (8) SC 494 titled as Market Committee, Hodal Vs. Krishan Murari & Ors. and Civil Appeal no. 8577 of 2014 titled as Executive Officer, Antiyur Town Panchayat Vs. G. Arumugam.

6. Appellant was definitely aware of the pendency of the proceedings against her. In terms of her own contention, she got to know about the impugned judgment in the year 2016, yet only after resorting to all the RCA DJ No. 20/19 4/8 remedies under order 9 rule 13 CPC and the appeal against that order, she approached the appellate court in February 2019 after delay of almost 7 years from the date of passing of the impugned judgment. The appeal, against the order on application under order 9 Rule 13 CPC, was dismissed in October 2018, yet the appellant did not immediately resort to the filing of the instant appeal.

7. Justification furnished on record is neither appreciable nor reasonable considering the prejudice to be caused to the opposite party who despite having decree in her favour since 2012, till date has not been able to get the same executed. Nevertheless, to set the controversy at rest, this court still proceeds further to decide the appeal on merits after condoning the delay.

8. Though appellant/defendant has submitted about the title documents in favour of plaintiff being forged and fabricated documents, without the knowledge and consent of the appellant, but at the same time had also submitted in written statement that she had borrowed amount of Rs. 60,000/­ and her signatures were taken on the blank papers as well as original papers of the property were handed over to the plaintiff. It was assured that if she refunds the money, plaintiff shall re­execute the documents in her favour.

9. Repayment of the loan amount though has been alleged but no receipt was placed on record of Ld. trial court alongwith written statement. If the plaintiff had failed to re­execute the documents after return of the amount, as stated by the defendant/appellant, the appropriate legal remedy could RCA DJ No. 20/19 5/8 have been resorted to but was nothing was done in this respect. It is also the matter of record that the defendant resorted to legal proceedings by filing of the suit for permanent injunction but the same was withdrawn upon the assurance of the plaintiff, not to dispossess the defendant from the suit premises without following due process of law. Defendant never resorted to the legal proceedings with regard to seeking cancellation of the title documents in favour of the plaintiff. The cancellation of GPA seems to be unilateral and contrary to the terms of affidavit whereby defendant had relinquished all her rights with regard to the suit property in favour of the plaintiff and particularly considering the fact that there was no return of the money received against the sale of the property prior to cancellation of GPA.

10. In terms of record, previously also plaintiff had initiated proceedings under DRC Act which petition was withdrawn after the submission of report by Revenue Officer with regard to non applicability of the provisions of DRC upon the area. The said withdrawal was also after the defendant had appeared in the matter. Even thereafter, no appropriate proceedings were initiated by the defendant seeking cancellation of the documents executed in favour of plaintiff and to establish her own ownership upon the property.

11. Ld. counsel for appellant also contended with respect to the address of the defendant given as B­17/449 in the memo of parties, though in the body of plaint, decree of possession was sought for the property bearing no. 70/449. Abovesaid was termed as typing mistake in memo of parties by RCA DJ No. 20/19 6/8 counsel for plaintiff/respondent. The documents on record pertained to property bearing no. B­70/449 and the relief for possession had also been sought for the same number i.e. B­70/449, therefore for wrong mention of address in memo of parties, no prejudice can be termed to have been caused to the defendant who had appeared before Ld. trial court and had also filed written statement.

12. Ld. counsel for appellant also raised contention regarding the admissibility of the unregistered documents in view of section 17 of the Indian Evidence Act. For the abovesaid, Ld. Counsel for appellant placed reliance upon 2016 (2) Apex Court Judgments 670 (SC) titled as Guman Singh & Ors. Vs. Manga Singh (D) by Lrs & Ors. wherein it was observed that " sale deed valuing more than Rs. 100, is compulsorily registrable document u/s 17 of the Act. Such document without registration cannot be led into evidence and ownership rights cannot be claimed on the basis of said document".

13. Though it is correct that the sale of immovable property is only permitted through registered sale deed and not by way of GPA, Agreement to Sell etc. GPA though is registered and as far as the case between plaintiff and defendant is concerned, in wake of the established facts on record with regard to execution of the documents in favour of the plaintiff by defendant, better title definitely, as on date, is in favour of plaintiff.

14. As further submitted by Ld counsel for appellant, mere absence of the defendant would not justify the case of plaintiff and fact that the RCA DJ No. 20/19 7/8 evidence has remained unrebutted, would also not justify the passing of the decree, in such situation, evidence produced by the plaintiff for the inspection of the court ought to be seen with extra care and caution whereas evidence produced by plaintiff before the court was not reliable, cogent and convincing. Ld. Counsel for appellant placed reliance upon 2016 (4) Civil Court Cases 242 (SC) titled as Union of India Vs. K.V. Lakshman & Ors. wherein it was observed that " jurisdiction of first appellate courts is very wide like that of trial court. It is open to appellant to attack all findings of fact or law in first appeal. It is the duty of first appellate court to appreciate entire evidence and may come to a conclusion different from that of trial court".

15. Judgment passed by Ld. trial court does not suffer from any infirmity as the most important defence available with the defendant was the refund of the alleged loan amount, which receipt was neither filed before Ld. trial court nor even in the present appeal. Hence,finding no substance in the appeal, same stands dismissed. Decree sheet be prepared accordingly. TCR alongwith copy of this order be sent to Ld. trial court. Appeal file be consigned to record room.

Announced in open Court on this 19th day of December, 2019 ( SAVITA RAO) ADJ/PO­ MACT, NORTH EAST KARKARDOOMA COURTS, DELHI RCA DJ No. 20/19 8/8