Delhi High Court
Yogender Kumar & Anr vs Rajender Kumar & Ors on 12 September, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 12th September, 2018.
+ RSA 212/2016 & CM No.28685/2016 (for stay)
YOGENDER KUMAR & ANR ..... Appellants
Through: Mr. S.S. Tomar, Adv.
Versus
RAJENDER KUMAR & ORS ..... Respondents
Through: Mr. Somdutt Kaushik and Mr.
Avanish Kumar, Advs. for R-1.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Regular Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 (CPC) impugns the judgment and decree [dated 10th March,
2016 in RCA No.02/2015 of the Court of Additional District Judge-2
(North)] in a First Appeal under Section 96 of the CPC preferred by the
respondent No.1/plaintiff against the judgment and decree [dated 29 th
January, 2015 in Suit No.419/2014 Unique ID No.02401C0006251991 of the
Court of Civil Judge-06 (Central)] in a suit filed by the respondent
No.1/plaintiff.
2. This appeal came up first before this Court on 9th August, 2016, when
though notice thereof was ordered to be issued and stay of proceedings
before the Suit Court granted, but without expressing any satisfaction that
this Regular Second Appeal entails any substantial question of law and,
without framing any substantial question of law. Vide subsequent order
dated 25th October, 2016, Trial Court record was requisitioned. Only the
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counsel for the respondent No.1/plaintiff has appeared and none of the
respondents No.2 to 6/defendants have appeared.
3. On the last date of hearing i.e. 31st August, 2018, the counsels were
partly heard and the remaining hearing adjourned to today, recording the
consent of the counsels that on completion of hearing, the appeal can be
decided by framing the substantial question of law, if any in the judgment
deciding the appeal itself.
4. The counsel for the two appellants/defendants namely Yogender
Kumar and Krishan Kumar and the counsel for the respondent No.1/plaintiff
have been heard and the records perused.
5. The respondent No.1/plaintiff instituted the suit, from which this
Regular Second Appeal arises, for recovery of possession of plot No.47,
Village Badli, Delhi and for permanent injunction against the two
appellants/defendants and the respondents No.2 to 6/defendants from
creating any further charge or encumbrance on the said plot.
6. It was inter alia the case of the respondent No.1/plaintiff in the plaint
(i) that the father of the respondent No.1/plaintiff namely Ganga Ram was
allotted the aforesaid plot No.47 by the Village Panchayat and a certificate of
allotment dated 11th January, 1977 issued in the name of the father of the
respondent No.1/plaintiff; (ii) that on demise of the father of the respondent
No.1/plaintiff, the respondent No.1/plaintiff, being the only heir, succeeded
to the said plot No.47; (iii) that the brother namely Pehlad Singh of the father
of the respondent No.1/plaintiff (who was impleaded as defendant No.1 in
the suit) was allotted adjoining plot No.46; (iv) that a common boundary
wall was constructed around the two plots; (v) that the said Pehlad Singh had
RSA 212/2016 Page 2 of 8
however sold both the plots to one Dambar (impleaded as defendant No.2 in
the suit); (vi) that the respondent No.1/plaintiff though instituted a suit
immediately on learning of the said sale, but Pehlad Singh persuaded the
respondent No.1/plaintiff to withdraw the suit, promising that plot No.47
would be gotten released from Dambar; and, (vii) that Pehlad Singh however
failed to do so.
7. The two appellants/defendants are the sons of Dambar aforesaid.
8. The Suit Court dismissed the suit of the respondent No.1/plaintiff.
9. However, on First Appeal being preferred by the respondent
No.1/plaintiff against the judgment and decree of dismissal of the suit, the
First Appellate Court, vide the impugned judgment has set aside the
judgment and decree of dismissal of the suit and remanded the suit to the
Suit Court for impleading the Gaon Sabha, Gram Pradhan and Block
Development Officer and to decide the suit afresh, after recording fresh
evidence, to determine whether plot No.47 was allotted in the name of father
of the respondent No.1/plaintiff.
10. The counsel for the appellants/defendants, on enquiry as to the
substantial question of law arising in this appeal, contends that the First
Appellate Court has erred in remanding the suit when the respondent
No.1/plaintiff did not disclose any title to the plot, for recovery of possession
of which, on the basis of the title, the suit was filed. It is argued that the First
Appellate Court has misconstrued paras 4,5&6 of preliminary objections in
the written statement dated 12th November, 2001 of the
appellants/defendants filed as written statement of defendants No.4&5.
RSA 212/2016 Page 3 of 8
11. The appellants/defendants, in paras 4,5&6 of preliminary objections in
their written statement pleaded as under:
"4. That even otherwise, as per the claim of the plaintiff,
Gram Panchayat allotted agricultural land measuring 100 sq.
yds. out of khasra No. 27/31/3 in Village Badli, Delhi. It is
further submitted that Khasra Number is not mentioned in the
plaint by the plaintiff. This allotment was for 9 years only
expiring in the year 1986. The allotment was in the name of
Shri Ganga Ram, father of the plaintiff, who has already died
before expiring of the said date and in the meanwhile, the
answering defendants came into possession of the suit land on
04.02.1980.
5. Right, title and interest of Shri Ganga Ram in the said
plot were that of a Licensee and that license stood terminated
with the expiry of time in the year 1986. This line of argument
is advanced on the assumption that plaintiff's case is cent
percent true as per the plaint, though the contents of the plaint
and the claim of the plaintiff is denied altogether by the
answering defendants herein.
6. That even otherwise, from the allotment letter as relied
upon by the plaintiff, forgery is apparent in the alleged
allotment. There are material differences in the signatures of
Pradhan of Gram Panchayat, who has allegedly allotted the
land to the plaintiff. The signature on allotment leter dated
11.01.1977 and L.R. Form No.37 dated 11.01.1976 are
differing to each other. Seal is also different. This suggest the
act of forgery and manipulation on the part of the plaintiff. It is
further submitted that such allotment was subject to approval
by the Director of Panchayat/Dy. Commissioner as per the
Rules framed under Delhi Panchayat Raj Act and Rules 176
and 178 are very clear on this point. Since Director of
Panchayat or the Dy. Commissioner has not sanctioned the
allotment, the alleged allotment is null and void and carries no
meaning whatsoever. In any case, village Pradhan has no right
to allot any piece of land which belongs to Gaon Sabha without
sanction from the aforesaid Authorities. In any case, letter of
RSA 212/2016 Page 4 of 8
allotment as relied upon by the plaintiff is an act of forgery
which he has secured from some interested person and cannot
be taken into consideration at all."
12. Per contra, the counsel for the respondent No.1/plaintiff draws
attention to page 557 of the Suit Court record, being the "Praman Patra"
issued by Delhi Administration (Panchayat Vibhag) with respect to plot
No.47 admeasuring 100 sq. yds. in favour of the father of the respondent
No.1/plaintiff.
13. The counsel for the appellants/defendants, on enquiry as to why the
'Praman Patra' does not constitute a document of title, contends that the said
certificate has been issued only by the Pradhan of the Gaon Sabha but under
Rule 176 of the Delhi Panchayat Raj Rules, 1959 the said action of the
Pradhan of the Gaon Sabha has to be approved by Director of
Panchayat/Sub-Divisional Magistrate and which did not happen.
14. The Suit Court dismissed the suit finding merit in the contention
aforesaid of the counsel for appellants/defendants and holding, (i) that the
respondent No.1/plaintiff had not shown that allotment was approved by
designated authority or that the Pradhan was authorised to allot the plots;
and, (ii) merely because the appellants/defendants had not denied the
allotment and the 'Praman Patra', that alone cannot constitute proof thereof.
Accordingly, the suit was dismissed.
15. I have enquired from the counsel for the appellants/defendants, how
the question of the action of the Pradhan having not been approved by the
requisite authority, if any is relevant in a suit by the respondent
No.1/plaintiff on the basis of the 'Praman Patra' aforesaid, for recovery of
RSA 212/2016 Page 5 of 8
possession from those in unauthorised occupation of the said plot. It has
further been enquired, whether not the question of irregularity or illegality in
the allotment if any in favour of the father of the respondent No.1/plaintiff,
would be of relevance only in the dispute, if any between Gaon Sabha and
the respondent No.1/plaintiff.
16. I have further enquired from the counsel for the appellants/defendants,
how plot No.46 was allotted in the name of Pehlad Singh. It is not in dispute
that the appellants/defendants claim purchase of both the plots from Pehlad
Singh.
17. The counsel for the appellants/defendants states that there are no
documents to show the title of Pehlad Singh to plot No.46 or even to plot
No.47 and the only documents in possession of the appellants/defendants are
Agreement to Sell, Power of Attorney etc. executed by Pehlad Singh in
favour of the appellants/defendants. It is also stated that Khasra Girdawaris
also record the names of the appellants/defendants. It is stated that the
appellants/defendants believed the claim of Pehlad Singh, of being entitled to
both the plots.
18. I may however record, that the Suit Court, in its judgment, in para 24
has recorded that defendant No.1 Pehlad Singh in his written statement
admitted that he was allotted plot No.46.
19. In my view, the appellants/defendants, who claim title to both plots by
purchase thereof from Pehlad Singh who had same title to plot No.46 as the
father of respondent No.1/plaintiff had to plot No.47, are estopped from
challenging title of father of respondent No.1/plaintiff to plot No.47.
RSA 212/2016 Page 6 of 8
20. I may, at this stage, record that the appellants/defendants, during the
hearing on the last date, had also raised the argument of adverse possession.
However today, when it has been enquired from the appellants/defendants as
to how the appellants/defendants can at the same time claim lawful title as
well as adverse possession, the counsel for the appellants/defendants states
that the appellants/defendants are not claiming adverse possession.
21. The counsel for the appellants/defendants however states that the
appellants/defendants have taken the plea of being bona fide purchasers.
22. The plea of being a bona fide purchaser is available only in defence to
a suit for specific performance of agreement to sell and against a prior
agreement purchaser and not against the real owner of the property. If it is
ultimately decided in the suit that the respondent No.1/plaintiff is the owner
of plot No.47, howsoever bona fide may have been the purchase by the
appellants/defendants of the said plot from Pehlad Singh, will still not entitle
the appellants/defendants to defend the claim of the respondent
No.1/plaintiff as owner, for recovery of possession. A person who himself
has no title cannot convey title to transferee. Reference if any required can
be made to Rajesh Kumar Gupta Vs. Pratap Builders & Contractors (P)
Ltd. 2013 SCC OnLine Del 2892.
23. Coming back to the aspect of title, what emerges is that there were
reasons enough for the first Appellate Court for remand of the suit as
directed.
24. The counsel for the appellants/defendants has been unable to show
that any substantial question of law arises with respect to jurisdiction
exercised by the First Appellate Court of setting aside of the judgment and
RSA 212/2016 Page 7 of 8
decree of dismissal of suit and remanding the suit for decision afresh after
impleading necessary parties and after recording fresh evidence.
25. Resultantly, the appeal fails and is dismissed.
26. The Trial Court record requisitioned in this Court be sent back
forthwith.
27. The counsel for the respondent No.1/plaintiff, on enquiry, states that
there is a date of hearing before the Suit Court.
28. The parties to appear before the Suit Court on the said date.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 12, 2018 bs RSA 212/2016 Page 8 of 8