Delhi District Court
Smt. Shashi Devi Sharma vs Sh. Amarchand Goel on 10 December, 2010
IN THE COURT OF SURESH KUMAR GUPTA,
ADDITIONAL DISTRICT JUDGE 03 (EAST),
KARKARDOOMA COURT, DELHI
RCA No.20/2008
ID No. : 02402C0364712007
IN THE MATTER OF :
Smt. Shashi Devi Sharma,
W/o Sh. Subhash Chand Sharma,
R/o H.No.3, West Guru Anagad Nagar,
Opp. Radhu Palace, Main Patpar Ganj,
Laxmi Nagar, Delhi
..................Appellant / Plaintiff
Versus
1. Sh. Amarchand Goel,
S/o Sh. Ram Goel,
R/o 145, J&K Block,
Laxmi Nagar, Delhi
2. Sh. Laxmnan Thakur,
S/o Sh. Muninder Thakur,
R/o E54A, West Vinod Nagar,
I.P. Extension, Delhi
........Respondents / Defendants
Date of institution : 20.04.2007
Date of arguments heard : 26.11.2010
Date of judgment : 10.12.2010
RCA No.20/2008 Page 1 of 9
J U D G M E N T
1. The present appeal arises from impugned order dated 13.03.07 passed by Learned Trial Court vide which suit of the appellant was dismissed.
2. The notice of the appeal was given to the respondent. Respondent No.1 filed the reply. Respondent No.2 was proceeded exparte.
3. The facts of the case are like this. The plaintiff (herein appellant) has filed a suit for declaration with the averments that Late Sh. Subhash Chand Sharma is her husband who had purchased property No.C18/228 (Old No.B13) with private shop No.C19, Forming Part of Khasra No.1086 in the revenue state of village Khureji Khas, Situated at Guru Nanak Pura main Patparganj Road, Shahdara, Delhi from Sh. Ram Rakha Mal who executed GPA, agreement to sell, receipt dated 14.05.97 in his favour. Her husband was not keeping well so he executed an agreement to sell, GPA, receipt and Will dated 17.12.90 in her favour for a consideration of Rs.40000/ for 100 square yards of suit property out of 125 square yards. She has become owner of the suit property. Her husband had been running the business of property dealer in the suit property since May, 1977 who sold the same to her in December, 1990 and since then she is owner in possession of suit property. Defendant No.1 was friend of her deceased husband but their relations were deteriorated with the passage of time. Defendant No.1, in collusion with defendant No.2, filed a collusive eviction petition no.E162/02 U/s 14(1)
(a) of DRC Act by showing defendant No.2 as tenant under him on a RCA No.20/2008 Page 2 of 9 monthly rental of Rs.3000/. It was averred in the petition that defendant no.2 has not paid the rent w.e.f. 15.01.01. The petition was filed the during the lifetime of her deceased husband but defendant kept it secret from her deceased husband. She came to know only on 07.08.04 when bailiff came to take possession of the suit property. She immediately filed objections U/s 25 DRC Act before Learned ARC, Delhi. The defendant No.1, before filing an eviction petition, served a demand notice dated 28.02.02 upon defendant No.2 at his residential address with a view to conceal his deceitful means. Respondent No.2 has admitted allegations of respondent No.1 and alleged that rent is due from 14.01.02 and accordingly an order U/s 15(1) DRC Act was passed on 28.02.03. Defendant No.2 filed an application for an extension of time to deposit the arrears of rent and ultimately an eviction order dated 18.11.03 was passed by Sh. Rakesh Sayal, the then Learned ARC, Delhi. The said eviction order has been obtained collusively and by playing fraud upon the court so the same cannot be executed against her. Hence, this suit.
4. The defendant No.1 (herein respondent No.1) contested and resisted the suit by filing the written statement wherein preliminary objections qua stay of suit U/s 10 CPC, cause of action and locus standi are raised. On merits, it is averred that suit property neither bears the number as B13 or C18/228. The allegation that private shop No.C19 is granted to suit property is false. It is wrong that subject matter forms part of khasra No.1086. The documents executed by Sh. Ram Rakha Mal in favour of deceased husband of the plaintiff is with respect to old house No.13B RCA No.20/2008 Page 3 of 9 with new No.C18/228 measuring 125 square yards. The sale documents executed by deceased husband of the plaintiff in favour of the plaintiff show that deceased has sold 100 square yards of property No.B13. The allegation that deceased husband of the plaintiff sold property purchased by him from Sh. Ram Rakha Mal vide agreement dated 14.05.77 is false. This reveals that property bearing C18/228 with old No.13B whereas property purchased by the plaintiff from her deceased husband was bearing No.B13 as on 17.12.90. The plaintiff has not stated how old no.13B with new No.C18/228 stood changed to B13 or C19. None of the documents in favour of the plaintiff shows the number C18/228 or C19. The plaintiff has filed the objections before Learned ARC wherein she categorically stated in her evidence that suit property bears No.C19 with old No.B13 belong to her deceased husband and relied upon the agreements dated 14.05.77 and 17.12.90. Her cross examination shows that an area of 50 square yards sold by her husband to his son Sachin Sharma and she doesn't know who is in possession of remaining 75 square yards of land. In the cross examination she testified that 100 square yards of property purchased by her from her husband is the suit property and she also stated that suit property doesn't form the part of C 18/228 so the documents relied upon by her are of no help to the plaintiff. The plaintiff has suppressed the facts that on 26.11.91 she has sold 25 square yards of the property bearing No.C18/228 to Sh. Raj Narayan by reflecting khasra No.1088 on the premise that she has derived the title RCA No.20/2008 Page 4 of 9 from Sh. Brij Nath but she has denied this fact in the cross examination. It transpires from the record that husband of the plaintiff is purported to have purchased 125 square yards out of khasra No.1086 bearing No.C 18/228 from Ram Rakha Mal out of which deceased husband of the plaintiff has sold 100 square yards to the plaintiff vide agreement to sell dated 17.12.90 and at the same time 50 square yards of land to his son Sachin Sharma. The 100 square yards of land was not left so how the plaintiff could have purchased 100 square yards of land from her deceased husband. The plaintiff is a trespasser and encroacher upon his property. The documents relied upon by the plaintiff are false, forged and manipulated. The agreement to sell dated 14.05.77 raises a serious doubt regarding the involvement of Sh. Gainda Lal Sharma who has signed the said documents though he is neither a party to the transaction nor a witness. The signatures of Sh. Iqbal Bahadur, Advocate are not genuine. The documents dated 17.02.90 are not genuine. He is the rightful owner of suit property as same is purchased from Smt. Bimlawati on 05.12.89 and documents further show that husband of the plaintiff has signed as a witness. The suit property forms part of property No.C 18/238 which is owned by him over which plaintiff has no right, title or interest. The allegation that eviction order is the result of fraud played by him with the help of defendant No.2 is false and denied.
5. The plaintiff filed the replication wherein averments of the written statement were controverted and stand taken in the plaint was reiterated. RCA No.20/2008 Page 5 of 9
6. From the pleadings of the parties one preliminary issue was framed on 17.08.06 by Learned Trial Court :
1. Whether the suit is barred in view of the provisions of order 21 R 97 & R 100 (1) CPC ?
7. Learned Trial Court after perusing the record and hearing the arguments of learned counsel for the parties dismissed the suit of the plaintiff.
8. I have heard Learned counsel for the parties and perused the entire record of the case.
9. Learned counsel for the appellant submitted that suit is maintainable and a separate suit can be filed to challenge the eviction order passed by Learned ARC as a fraud is played by the respondent upon the court. He has placed reliance on Rajender Kumar Khanna and others v. R K Bajaj and others, All India Rent Control Journal, 1993 (2) 369. On the other hand, Learned counsel for the respondent submitted that appellant has filed the objections in the execution petition and the points raised by the appellant could be decided in the execution petition and separate suit to that effect doesn't lie. Reliance is placed upon Shrinath and others v. Rajesh and other, JT 1998 (3) SC 244, Babu Lal v. Raj Kumar, JT 1996 (2) SC 716 and Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another AIR 1997 SC 856.
10. Heard and perused the record. It is correct that an eviction petition titled as Amar Chand Goel V. Laxman Thakur was filed by the RCA No.20/2008 Page 6 of 9 respondent No.1 and an eviction order was passed on 18.11.03 by Sh. Rakesh Sayal, the then Learned ARC, Delhi against defendant No.2. The respondent has filed the execution petition and objections have been filed by the appellant. The question arises whether the separate suit is maintainable in case proper objections are taken by the appellant in the Executing Court. Order 21 CPC is a complete code in itself to resolve the disputes pertaining to the execution of decree for possession. The word "any person" in rule 97 covers all persons including those who are not bound by the decree or any person claiming right on his own including a stranger as held by their lordship in Shrinath and others v. Rajesh and Others, supra. Order 21 rule 97 CPC deals with the resistance or obstruction to the possession of immovable property. It deals with a stage which is prior to the actual execution of decree for possession wherein the grievance of the obstructionist can be adjudicated before the delivery of possession to decree holder. Rule 99 CPC deals with a stage where a stranger claims right, title or interest in the decreetal property who might be dispossessed in the execution of decree. The inquiry with respect to right, title and interest of the objector or decree holder can be conducted U/o 21 CPC. Order 21 rule 101 CPC says that all question relating to right, title or interest in the property arising between the parties U/o 21 rule 97 or 99 CPC shall be determined by the court and not by a separate suit. Support is drawn from Shrinath and others v. Rajesh and other, Babu Lal v. Raj Kumar, and Brahmdeo RCA No.20/2008 Page 7 of 9 Chaudhary v. Rishikesh Prasad Jaiswal and another, supra and P. Janardan Rao v. Kannan and others, JT 2004 (9) SC 1.
11. It is clear that appellant was not a party to an eviction petition. She has filed the objections in the execution petition against eviction order dated 18.11.03. All the objections taken by her in the execution petition will be decided by that court. The proper adjudication of the objections has to be before the Executing Court. The separate suit is barred with a view to avoid multiplicity of the proceedings as well as to avoid parallel proceedings. The appellant cannot challenge the eviction order by filing the separate suit and definitely Learned Trial Court was right while holding that the present suit is not maintainable in view of the provisions of order 21 CPC.
12. Learned counsel for the appellant submitted that he wants to amend the original plaint by adding the relief that plaintiff is entitled for a declaration that she is owner of suit property. Learned counsel for the respondent submitted that such an amendment cannot be allowed in view of the reason that suit itself is not maintainable. Heard and perused the record. The appellant has filed a suit for declaration to declare that eviction order dated 18.11.03 is collusive. She has not claimed that she be also declared owner of the suit property. The amendment sought for pertains to different cause of action. The amendment sought for would change the nature of the suit if allowed. The appellant can seek declaration by filing a separate suit if it is permissible under the law. RCA No.20/2008 Page 8 of 9 There is no ground to allow the amendment of the original plaint. Hence, plea to amend the plaint is turned down and consequently the application is dismissed.
13. Learned Trial Court has properly appreciated the facts as well as documents on record. I do not find any infirmity in the order dated 13.03.07 passed by Learned Trial Court and accordingly the appeal filed by the appellant is dismissed with no order as to the cost. TCR alongwith copy of this judgment be sent back. File of this court on completion be consigned to record room.
Announced in the open Court on 10.12.2010 (Suresh Kumar Gupta) Additional District Judge03 (East), Karkardooma Court, Delhi / 10.12.2010 RCA No.20/2008 Page 9 of 9