Delhi District Court
Sh. Daya Chand vs Sh. Tarun Verma on 31 March, 2023
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL DISTRICT JUDGE-01
SOUTH-EAST DISTRICT, SAKET COURTS: NEW DELHI
MCA DJ No:- 3/23
Daya Chand v. Tarun Verma & Anr.
Sh. Daya Chand
S/o Late Sh. Gursi
R/o H. No. 535, Village Aali
Post Office Sarita Vihar
New Delhi-110076
...... Appellant
versus
1. Sh. Tarun Verma
S/o Late Sh. Vijay Pal Singh
R/o 1813, Chaudhary Durga Singh Marg
Kotla Mubarak, New Delhi-110076
2. Sh. Rajender Kumar
S/o Late Sh. Ram Prasad
1467/2, Gurudwara Road
Kotla Mubarak, New Delhi-110076
...... Respondents
Date of Institution : 13.01.2023
Date of Reserving Judgment : 14.03.2023
Date of Decision : 31.03.2023
JUDGMENT
1. This miscellaneous civil appeal under Order XLIII Rule 1 r/w Section 151 of The Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') impugns the order dated 11.10.2022 and 13.12.2022 passed by the Court of Ld. SCJ-Cum- RC, South-East, Saket Courts, New Delhi in Ex. No. 32/2016 (Old) and 5708/16 (New) in Eviction petition no. 17/2013, titled as 'Tarun Verma v. Rajender'. For the sake of convenience, I MCA DJ No:- 3/23 Daya Chand v. Tarun Verma & Anr. Page No. 1 of 7 would be referring to the parties as per their original nomenclature before Ld. Executing Court.
2. Briefly stated, the respondent/decree holder (in short 'DH') had filed execution petition no. 32/2016 against respondent no. 2/judgment debtor (in short 'JD') on 19.04.2016 seeking execution of eviction order dated 04.12.2014 passed by the Court of Ld. Senior Civil Judge-cum-Rent Controller, South District, Saket Courts, New Delhi in respect of shop no. 1467/2, Gurudwara Road, Kotla Mubarkpur, New Delhi (hereinafter referred to as 'subject property'). The objections were filed by the objector in the aforesaid execution proceedings claiming himself to be the owner of subject property. Vide order dated 18.07.2018, Ld. Executing Court granted one opportunity to the objector to lead evidence by summoning necessary revenue records/officials to substantiate his contentions. Thereafter, several witnesses were got examined by the objector during last more than 4 years and the objector's evidence is not yet concluded. On 11.10.2022, objector expressed his desire to get himself examined as a witness, which request was strongly opposed on behalf of DH. Ld. Executing Court observed that in case objector is in possession of any ownership documents qua subject property then the Court may consider to examine the objector in the interest of justice. The objector further pressed his application for summoning Draughtsman to prove site plan filed by the objector on record. The said application was also strongly opposed on behalf of DH and the same was dismissed by Ld. Executing Court while holding that site plan of a property is not a relevant document to establish its ownership. On 13.12.2022, Ld. Executing Court permitted MCA DJ No:- 3/23 Daya Chand v. Tarun Verma & Anr. Page No. 2 of 7 examination of objector as witness to the extent of bringing documents not yet produced in the evidence. The objector was thereafter, examined in chief as OW-7 and his cross-examination was deferred on request of the witness himself.
3. The objector/appellant is aggrieved of impugned orders dated 11.10.2022 and 13.12.2022 vide which request of the objector to examine Draughtsman to prove the site plan was declined by Ld. Executing Court. Vide present appeal, the objector has expressed discontent with the observations and findings of Ld. Executing Court and interalia urged that the findings of Ld. Executing Court are perverse, vague and not in accordance with the law. The objector has challenged the impugned orders dated 11.10.2022 and 13.12.2022 primarily on following grounds as under:-
(a) That Ld. Executing Court failed to appreciate that the DH had obtained eviction order dated 04.12.2014 on the basis of a wrong Site Plan and the objector should be afforded an opportunity to prove correct Site Plan by examining the Draughtsman;
(b) That the subject property is situated in Revenue Estate of Village Kotla Mubarakpur, New Delhi and is not a property allotted by any competent authority;
(c) That the Site Plan filed by DH and objector are different;
(d) That examination of Draughtsman is necessary to prove exact location of subject property and its dimensions;
(e) That in order to prove title over the suit property, the objector needs to co-relate the title documents with the site plan;
(f) That irreparable loss would be ensued upon the objector if Draughtsman is not permitted to be examined.
MCA DJ No:- 3/23 Daya Chand v. Tarun Verma & Anr. Page No. 3 of 7
4. No formal reply was filed by the DH in response to the present appeal and Ld. Counsel for DH straightaway addressed his arguments on the same.
5. It is primarily argued by Ld. Counsel for DH that this miscellaneous civil appeal is not maintainable in its present form as the interlocutory orders dated 11.10.2022 and 13.12.2022 are not appealable under Order XLIII Rule 1 r/w Section 104 CPC. Additionally, it is argued that after passing of eviction order dated 04.12.2014 qua subject property, similar issue regarding incorrect khasra number was raised by the JD before Hon'ble Delhi High Court in RC.REV.103/2015 & C.M. Nos.3961/2015, 3962/2015 & 11829/2015, which was dismissed by Hon'ble Delhi High Court vide order dated 25.01.2016. The said order was later on upheld till Hon'ble Supreme Court of India as the SLP preferred on behalf of JD was also dismissed vide order dated 15.02.2016. It is further argued that even otherwise, vide order dated 18.07.2018, the objector was only given one opportunity by Ld. Executing Court to lead evidence by summoning necessary revenue records/officials and the objector protracted the proceedings on this count for more than four and half years by calling various revenue officials. It is further argued that by way of fresh summoning application, the objector sought to summon a draughtsman for proving the site plan which was rightly declined by Ld. Executing Court as the site plan cannot prove ownership of objector qua subject property and the draughtsman is not a revenue official whose examination was permitted under order dated 18.07.2018. It is thus, prayed on behalf of DH that the present appeal is liable to be dismissed with heavy costs.
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6. I have heard the rival submissions made on behalf of both the parties and carefully perused the record.
7. At the outset I may note that Ld. Counsel for objector/appellant has failed to explain to the satisfaction of this Court as to the maintainability of present miscellaneous civil appeal under Order XLIII Rule 1 CPC. Impugned orders dated 11.10.2022 and 13.12.2022 are admittedly interlocutory orders which do not find mention in the list stipulated under order XLIII Rule 1 CPC. In these circumstances, the contention of Ld. Counsel for DH/respondent holds merit and present miscellaneous civil appeal is not maintainable in its form before this Court.
8. Since, arguments were advanced on behalf of both the parties on merits of the miscellaneous civil appeal in question, I deem it expedient to return my findings on merits of the appeal as well.
9. During the course of arguments, Ld. Counsel for objector withdrew his challenge against order dated 13.12.2022 and prayed that the present miscellaneous appeal may be confined to the impugned order dated 11.10.2022 passed by Ld. Executing Court.
10. Before commenting on legality of order dated 11.10.2022, it is imperative to refer to the order dated 18.07.2018 passed by Ld. Executing Court. The relevant excerpts are reproduced as under:-
".... Considering the nature of objections where the Objector claims himself to be the owner of the suit MCA DJ No:- 3/23 Daya Chand v. Tarun Verma & Anr. Page No. 5 of 7 property and relies upon the report of the Tehsildar to show that he is the owner of the suit shop as per the revenue record. Whereas on the other hand, the DH has also relied upon the demarcation report and the report by SDM to show that indeed he is the owner of the suit property. The objections cannot be decided in a summary manner. Leading of evidence is a must in such circumstances. Accordingly, the objector is granted one opportunity to lead evidence by summoning the necessary revenue record/officials before this court to substantiate his objections regarding him being the owner. The DH would be at liberty to rebut the same by way of cross examination as well as by availing one opportunity to lead further evidence of ownership. Accordingly, to come up for evidence on behalf of the objector on 31.07.2018. Steps for summoning of witness be taken within 2 days. Process be given dasti as well. It is clarified that the onus is upon the objector to ensure the presence of the witness to be examined...."
11. It is pertinent to note that pursuant to aforesaid order, list of witnesses was filed by the objector on 20.07.2018 wherein 15 witnesses were mentioned by him and the draughtsman sought to be examined vide present application did not find mention in the said list of witnesses. The language and tenor of the order dated 18.07.2018 was conspicuous to the effect that objector, who claimed himself as owner of the subject property while relying upon certain revenue records, was granted only one opportunity to lead evidence by summoning revenue records/officials to substantiate his claims of ownership qua subject property. Vide application dated 16.08.2022, the objector sought to summon draughtsman for proving site plan filed by the objector on record. The said draughtsman clearly is not the person who has any knowledge about the ownership of the subject property. Ld. Executing Court has thus, rightly dismissed the application of objector as the site plan is not a relevant document for establishing ownership of any person. Moreover, vide order dated 18.07.2018, MCA DJ No:- 3/23 Daya Chand v. Tarun Verma & Anr. Page No. 6 of 7 the objector was only permitted to summon necessary revenue records/officials by Ld. Executing Court, which order was not challenged by either parties and attained finality. Since, the draughtsman is not a revenue official, the objector cannot be permitted to summon him for proving the site plan as prayed. No infirmity is therefore found in the impugned order dated 11.10.2022 which warrants any interference by this Court. Accordingly, the miscellaneous civil appeal in question is dismissed.
12. Trial Court Record be sent back to the Ld. Trial Court along with copy of this judgment.
13. File be consigned to record room after due compliance.
ANNOUNCED IN OPEN COURT (AKASH JAIN)
ON 31.03.2023 ADJ-01, SOUTH-EAST
SAKET, NEW DELHI
This judgment contains 7 pages and each paper is signed by me.
(AKASH JAIN) ADJ-01, SOUTH-EAST SAKET, NEW DELHI MCA DJ No:- 3/23 Daya Chand v. Tarun Verma & Anr. Page No. 7 of 7