Delhi District Court
Sh. Avtar Singh vs . on 25 November, 2014
1
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. DISTRICT JUDGE
(WEST)02, TIS HAZARI COURTS:DELHI
RCA No. 04/12
Unique ID Case No.02401C0055892012
In
Suit No. 801/08 (Old No. 09/91)
&
RCA No. 05/12
Unique ID Case No.02401C0055922012
In
Suit No. 1852/08
&
RCA No. 06/12
Unique ID Case No.02401C0055952012
In
Suit No. 1207/08
RCA No. 04/12
Sh. Avtar Singh & Ors.
Vs.
Sh. Raj Kumar & Ors.
1. Sh. Avtar Singh
2. Sh. Paramjit Singh
3. Sh. Baljit Singh
RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 1/27
2
All Resident of :
Quarter No. 207,
Bharat Nagar,
Delhi. ... Appellants
Vs.
1. Sh. Raj Kumar
S/o Sh. Om Prakash
R/o Quarter No. 207,
Bharat Nagar,
Delhi.
2. Smt. Swaran Lata
W/o Sh. Raj Kumar
R/o Quarter No. 207,
Bharat Nagar,
Delhi.
3. Smt. Sumitra Devi ( Since Deceased)
Represented by LRs
a) Sh. Rajinder Kumar Sharma
(since deceased) through LRs;
i) Smt. Ramesh Sharma
ii) Sh. Rajesh Sharma
S/o late Sh. Rajinder Kumar Sharma
iii) Smt. Meenakshi
D/o late Sh. Rajinder Kumar Sharma
iv) Mrs. Archana
D/o late Sh. Rajinder Kumar Sharma
(i) to (iv) Resident of :
C515, Saraswati Vihar,
Delhi.
RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 2/27
3
b) Sh. Sat Pal Sharma
S/o late Sh. Bhoora Mal
R/o Quarter No. 203,
Bharat Nagar,
Delhi.
c) Smt. Prem Lata Sharma
D/o late Sh. Boora Mal
R/o House No. 281, Main Road,
Bharat Nagar,
Delhi110052 ... Respondents
RCA No. 05/12
Sh. Avtar Singh & Ors.
Vs.
Sh. Raj Kumar
1. Sh. Avtar Singh
2. Sh. Paramjit Singh
3. Sh. Baljit Singh
All sons of
Late Sh. Harbans Lal
All Residents of
Quarter No. 207,
Bharat Nagar,
Delhi. ...Appellants
Vs.
RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 3/27
4
Sh. Raj Kumar
S/o Sh. Om Prakash
R/o Quarter No. 207,
Bharat Nagar,
Delhi. ... Respondent
RCA No. 06/12
Sh. Avtar Singh & Ors.
Vs.
Sh. Raj Kumar
1. Sh. Avtar Singh
2. Sh. Paramjit Singh
3. Sh. Baljit Singh
All sons of
Late Sh. Harbans Lal
All Residents of
Quarter No. 207,
Bharat Nagar,
Delhi. ... Appellants
Vs.
Sh. Raj Kumar
S/o Sh. Om Prakash
R/o Quarter No. 207,
Bharat Nagar,
Delhi. ... Respondent
RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 4/27
5
Date of institution of RCA No. 04/12 06.02.2012
Date of institution of RCA No. 05/12 06.02.2012
Date of institution of RCA No. 06/12 06.02.2012
Date on which, judgment have been reserved 11.11.2014
Date of pronouncement of judgment 25.11.2014
JUDGMENT:
Vide this judgment, I shall dispose of three appeals bearing RCA No. 04/12, RCA No. 05/12 & RCA No. 06/12, filed on behalf of the appellantsSh. Avtar Singh & Ors against the common impugned judgment/decree dated 02.01.2012 passed by the Ld. Trial Court in Suit No. 801/08 (Old No. 09/91), Suit No. 1852/08 and Suit No. 1207/08.
2. Brief facts necessary for the disposal of the present appeals are that a case bearing Suit No. 801/08 (Old No. 09/91) for possession of immovable property and for recovery of damages was filed on behalf of the plaintiffsSh. Avtar Singh & Ors (appellants in the appeal bearing RCA No. 04/12 herein) against the defendants Sh. Raj Kumar & Ors. ( respondents in the said appeal herein). In the said plaint, it has been stated that the plaintiffs are the owner of Quarter no. 207 located in the Abadi of Bharat Nagar, Delhi and they had purchased the said quarter from Smt.Agya Wanti w/o Sh. Arura Mal, who was the previous owner vide sale deed registered on 14.01.1987 in office of the Sub Registrar vide no. 214 Addl. Book No. 1 Vol. No. 4684. It is further stated that at the time of said sale, the previous owner was in possession of the said property and the plaintiffs were delivered the vacant possession of the property, however a part of the property was retained by the RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 5/27 6 defendant, who is a relative of previous owner Smt. Agya Wanti and was residing with her. It is stated that the previous owner sought time from the plaintiffs for vacating the premises under the possession of defendant and assured that defendant will vacate the same after two years to which the plaintiffs agreed. It is further stated that after expiry of two years, defendant did not vacate the premises despite repeated requests and reminders including legal notice dated 28.05.1990 which resulted in filing of the present suit before the Ld. Trial court, wherein it has been prayed that a decree for the possession of the above said suit property may be passed in favour of the plaintiffs and against the defendant. It has been further prayed that the decree for a sum of Rs.11,500/ may also be passed in favour of the plaintiffs and against the defendant for damages for use and occupation.
3. The defendant Sh. Raj Kumar contested the above said suit and filed the written statement, wherein it has been stated that Smt. Sumitra Devi and Smt.Swaran Lata are in lawful possession of the suit property being its lawful owners for more than 35 years and are proper and necessary parties to the suit. It is further stated that the defendant has been living in the suit property after marriage with Smt. Swaran Lata since 1974 being her husband. It is stated that plaintiffs have no locus standi to file the present suit as Smt. Sumitra Devi and Smt. Swaran Lata are in lawful possession of the suit property being its owners. It is further stated that plaintiffs have no cause of action against the defendant and that the present suit was not maintainable. It is stated that there is no privity of contract between the plaintiffs and their predecessors in interest with the defendant. It is stated that suit as framed RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 6/27 7 is not legally maintainable and that plaint has not been properly verified. It is also stated that the present suit is barred by limitation. All other averments made in the plaint have also been denied on behalf of the defendant and it has been prayed that the aforesaid suit filed on behalf of the plaintiffs may be dismissed with cost.
The written statement has also been filed on behalf of the defendant nos. 2 &3, wherein it has been stated that plaintiffs have no right or title in the property in suit to claim the possession from the defendants. It is further stated that the plaintiffs have no cause of action and that the suit as framed was not maintainable as the plaintiffs on their own showing cannot be delivered the possession of the suit premises by the alleged previous owners. It is stated that plaintiffs have no right, title or interest to claim possession of the property in suit, who are in possession of the same in their own right and title. It is further stated that there is no privity of contract between the plaintiffs and defendants and that present suit was barred by limitation. It is stated that Smt. Agya Wanti W/o late Sh. Aroora Mal was not the exclusive owner of the property and as such she had got no right to sell the property. It is further stated that Smt. Sumitra Devi and Smt. Swaran Lata legal heirs of late Sh. Boora Mal are the owners of the property in dispute in their possession. It is stated that Smt. Aroora Mal and Sh. Boora Mal were real brothers, who constituted an HUF with their father Sh. Devi Ditta and after death of their father, both brothers inherited the HUF property jointly in equal shares. It is further stated that Sh.Aroora Mal being the elder brother filed claim petition of HUF property left in Pakistan which was duly verified and sanctioned and in lieu thereof, property no. 207, Bharat Nagar, Delhi was duly allotted in the name of Sh. Aroora RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 7/27 8 Mal and both brothers lived together in the property as owners in their own right in equal share since allotment. It is stated that subsequently Sh. Boora Mal, the younger brother protested against the allotment of this property in the name of Sh.Aroora Mal only before the concerned authorities and mutual agreement in writing was reached on 20.10.1959 acknowledging the severance and partition of the HUF property no. 207, Bharat Nagar, Delhi whereby Sh. Aroora Mal became the owner of the portion in his possession towards the back side and Sh. Boora Mal got the front side portion and since then both the brothers became owners of their respective portions in their possession. It is also stated that Sh. Boora Mal died on
16. 02.1986 leaving behind Smt. Sumitra Devi as his widow and Smt. Swaran Lata his daughter as his legal heir, who became the owners of the portion of the quarter in their possession which Sh. Boora Mal got in partition. All other averments made in the plaint have also been denied on behalf of the defendants and it has been prayed that the aforesaid suit filed on behalf of the plaintiffs may be dismissed with cost.
Thereafter, replications to the WS of defendant no.1 and defendant nos. 2 & 3 were filed on behalf of the plaintiffs, wherein the averments made in the written statements of the respective defendants were denied as incorrect and those made in the plaint were reiterated as correct.
On the basis of the pleadings, issues were framed and the trial in the suit was conducted by the Ld. Trial Court.
4. The second case bearing Suit No. 1207/08 for recovery of Rs.18,000/ RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 8/27 9 for mesne profit and damages has been filed on behalf of the plaintiffsSh. Avtar Singh & Ors (appellants in the appeal bearing RCA No. 06/12 herein) against defendant Sh. Raj Kumar ( respondent in the said appeal herein). In the said plaint/suit, the plaintiffs have prayed for a decree for recovery of Rs.18,000/ as damages for use and occupation @ Rs.500/per month w.e.f 02.06.2002 to 31.05.2005 in respect of the portion of the property bearing quarter No. 207, Bharat Nagar, Delhi with interest @ 15 % per annum.
The defendant contested the said suit and filed the written statement, wherein all the averments made in the plaint have been denied on behalf of the defendant and it has been prayed that the aforesaid suit filed on behalf of the plaintiffs may be dismissed with cost.
Thereafter, replication was filed on behalf of the plaintiffs, wherein the averments made in the WS were denied as incorrect and those made in the plaint were reiterated as correct.
On the basis of the pleadings, issues were framed and the trial in the suit was conducted by the Ld. Trial Court.
5. The third case bearing Suit No. 1852/08 for recovery of Rs.18,000/ for mesne profit and damages has been filed on behalf of the plaintiffsSh. Avtar Singh & Ors (appellants in the appeal bearing RCA No. 05/12 herein) against the defendant Sh. Raj Kumar ( respondent in the said appeal herein). In the said plaint/suit, the plaintiffs have prayed for a decree for recovery of Rs.18,000/ as damages for use and occupation @ Rs.500/per month w.e.f 01.06.2005 to RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 9/27 10 31.05.2008 in respect of the portion of the property bearing quarter No. 207, Bharat Nagar, Delhi with interest @ 15 % per annum.
The defendant contested the said suit and filed the written statement, wherein all the averments made in the plaint were denied on behalf of the defendant and it was prayed that the aforesaid suit filed on behalf of the plaintiffs may be dismissed with cost.
Thereafter, replication was filed on behalf of the plaintiffs, wherein the averments made in the WS were denied as incorrect and those made in the plaint were reiterated as correct.
On the basis of the pleadings, issues were framed and the trial in the suit was conducted by the Ld. Trial Court.
6. Vide order dated 03.09.2008 passed by the Ld. Trial Court, the above said Suit No. 1207/08 & Suit No. 1852/08 were consolidated with the main case bearing Suit No. 801/08 and the evidence was recorded in the main Suit No. 801/08 with liberty to the parties to lead additional evidence in respect of period in issue.
7. Vide impugned common judgment/decree dated 02.01.2012, Ld. Trial Court have dismissed all the above said three cases bearing Suit Nos. 801/08, 1207/08 & 1852/08 filed on behalf of the plaintiffs (appellants herein).
Aggrieved by the aforesaid impugned common judgment/decree dated 02.01.2012 passed by the Ld. Trial Court in Suit Nos. 801/08, 1852/08 & 1207/08 the appellants (plaintiffs before the Ld. Trial Court) have filed these three appeals RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 10/27 11 bearing RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 respectively, wherein it has been prayed that the aforesaid impugned common judgment/decree dated 02.01.2012 passed by the Ld. Trial Court in all three case bearing Suit Nos. 801/08, 1207/08 & 1852/08 may be set aside.
8. Upon filing of the aforesaid appeals, notices were issued to the respondents.
Trial court record (TCR) was also summoned and the same has also been received.
9. I have heard the arguments at length put forward by Ld. Counsels for the appellants and respondent nos. 1 & 2 and have carefully gone through the record of the case. Arguments have not been addressed on behalf of the remaining respondents in RCA No. 04/12, despite opportunity being given.
10. It has been submitted on behalf of the appellants that the impugned judgment/decree passed by the Ld. Trial Court is against the law and facts on record. It is further submitted that Ld. Trial Court erred in dismissing the suit of the appellants by drawing presumptions of the genuineness in respect of the document, Ex. DW1/P1 dated 20.10.1959 alleged to have been executed between Sh. Arura Mal and Sh. Boora Mal as 30 years old in the face of specific denial by the appellant. It is submitted that Ld. Trial Court failed to appreciate that appellant have specifically denied that Sh. Arura Mal and Sh. Bura Mal constituted a HUF with RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 11/27 12 the father Sh.Devi Datta and they also denied the mutual agreement dated 20.10.1959 and as such Ld. Trial Court erred in drawing inference on the basis of said document. It is further submitted that Ld. Trial Court has erred in holding that the respondents are owners of the suit property and that there was no necessity for Sh. Bura Mal to file a suit for specific performance. It is submitted that Ld. Trial Court wrongly relied upon the above said alleged mutual unregistered agreement dated 20.10.1959 without there being any direct evidence to prove the same in face of the fact that Sh. Boora Mal during his lifetime never referred to or acted upon the said alleged agreement, although he remained alive for about 27 years after the date of execution of the said mutual agreement dated 20.10.1959. It is further submitted that Ld. Trial Court failed to appreciate that the said mutual agreement dated 20.10.1959 had been set up by the respondents to take a fake defence to the case of the appellants, although the said agreement was never produced anywhere or at any stage by Sh. Bura Mal during his whole life. It is submitted that Ld. Trial Court has erred in drawing the presumption of genuineness of the above said document dated 20.10.1959 on the basis of statement of Sh. Ramesh Grover, although the said witness has stated in his evidence that he has no personal knowledge about the contents of the said agreement. It is further submitted that Ld. Trial Court erred in not accepting plea of the appellants that the said mutual agreement dated 20.10.1959 was not free from suspicion and that no evidence had been led to prove in whose custody the document was kept and whether that was filed on record from a proper custody and erred in drawing presumption of genuineness in respect of the said document u/s 90 of Evidence Act. It is submitted that Ld. Trial Court erred in RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 12/27 13 holding that respondents have fulfilled twin condition by raising presumption of due execution of agreement dated 20.10.1959 and erred in holding that there was no sufficient ground to doubt genuineness of the said document, although the said document has not been proved in accordance with law. It is further submitted that Ld. Trial Court erred in holding that the said document was in the nature of Family Arrangement and does not require registration, although any such Family Arrangement if it assigns or devolves a share in the immovable property above the value of Rs.100/ in favour of another whose name is not in the sale deed, requires compulsory registration. It is submitted that one of the conditions of the above said agreement dated 20.10.1959 was that Sh.Arura Mal agreed that at the time, price of the quarter would be adjusted from the claim and title would be given to Sh. Arura Mal from that and within 15 days Sh.Arura Mal would execute the sale deed in favour of Sh. Boora Mal otherwise Sh. Boora Mal would have the right to get the sale deed executed after obtaining decree from the court, however no such suit for specific performance has been filed by the respondents either against Sh. Arura Mal or Smt. Agya Wanti or against the appellants, although more than 51 years have passed since the execution of the above said mutual agreement and about 48 years have passed from execution of the lease deed and conveyance deed in favour of Smt.Agya Wanti and about 24 years have passed from the date of execution of the sale deed in favour of the appellants. It is also submitted that Ld. Trial Court failed to appreciate that the above said mutual agreement has no validity in the eyes of law and cannot be acted upon and erred in holding that said arrangement was duly acted and continued till date.
RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 13/27 14
It has been further submitted on behalf of the appellants that Ld. Trial Court has erred in holding that Sh. Arura Mal and Sh. Boora Mal had joint property in Sialkot, Pakistan, although there was no such evidence available on record and also in view of the fact that Sh. Bura Mal did not file any claim in respect of any such property before the Ministry of Rehabilitation. It is submitted that Ld. Trial Court erred in holding that above said agreement would not loose its validity and reality only for the reason that Sh. Boora Mal had not filed any suit for specific performance of the said agreement. It is further submitted that Ld. Trial Court erred in holding that the above said Family Arrangement was duly acted upon and that it does not require registration and erred in holding that it merely recognized preexisting rights of the parties in respect of their portions in the suit property. It is submitted that Ld. Trial Court erred in holding that respondents have perfected their title in respect of the portion in question by way of adverse possession from 20.10.1971 and also erred in holding that the suit of the appellants was barred by limitation and Ld. Trial Court failed to appreciate that appellants had filed the suit within a period of less than four years from the date of purchase of said property and the question of adverse possession against the appellants could not arise. It is submitted that Ld. Trial Court erred in holding that appellants are not entitled to raise plea of bona fide purchase, although they had purchased the said property from Smt. Agya Wanti bona fidely and for a valuable consideration. It is further submitted that Ld. Trial Court has failed to appreciate that respondents were in unauthorized occupation of the suit premises and that the appellants were entitled to a decree of possession against the respondents. It is also submitted that Ld. Trial RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 14/27 15 Court erred in not granting a decree for recovery of Rs.18,000/ on account of damages @ Rs.500/ per month, although the appellants were entitled to the same in view of the fact that the respondents were in unlawful and unauthorized occupation of the suit premises and were liable to pay the damages to the appellants.
It has been further submitted on behalf of the appellants that impugned judgment/decree passed by the Ld. Trial Court was based upon conjecture and surmises and was in contradiction to the fact, law, documents and evidence on record. It has also been submitted that the impugned judgment/decree passed by the Ld. Trial Court was based upon the presumption & assumptions and was not sustainable in law and it has been prayed that the impugned common judgment/ decree dated 02.01.2012 passed by the Ld. Trial Court may be set aside.
In support of his contentions, Ld. counsel for the appellants has relied upon the case law cited as 1994 RLR 421, AIR 1996 SC 2814, AIR 1991 Bombay 10, AIR 1981 Delhi 291, (2005) 11 SCC 454, 128 (2006) DLT 407 (DB), (2007) 15 SCC 180, 154 (2008) DLT 707 and 211 (2014) DLT 149 (DB).
11. On the other hand, it has been submitted by Ld. counsel for the respondent nos. 1 & 2 that there was no illegality or irregularity in impugned common judgment/decree dated 02.01.2012 passed by the Ld.Trial Court. It is further submitted that Ld. Trial Court has properly appreciated the material on record and have correctly passed the impugned judgment/decree in the facts and circumstances of the case. It is submitted that the appellants have failed to disclose any substantial question of law and as such the appeal filed on behalf of the RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 15/27 16 appellant was not maintainable. It is further submitted that document Ex. DW1/P1 is an agreement dated 20.10.1959 between Sh. Arura Mal & Sh. Bura Mal and the executants of the said agreement have since expired and attesting witness and Deed writer of the said document has also expired. It is submitted that the said document Ex. DW1/P1 have been duly proved on record by DW4 Sh. Shashi Kumar and DW3 Sh. Ramesh Kumar, who are sons of the deceased attesting witness Sh.Mulakh Raj and Deed writer Sh. Ram Narain Grover respectively. It is further submitted that the said agreement has been entered at serial no. 3403 dated 20.10.1959 in register Ex. DW3/1. It is submitted that Ld. Trial Court has rightly relied upon provisions of Section 90 of Indian Evidence Act which deals with presumption as to document thirty years old and said Section 90 of Indian Evidence Act is founded on necessity and convenience because it is extremely difficult and some times not possible to prove handwriting, signatures or execution of old documents after lapse of thirty years and in order to obviate such difficulty or in probability to prove execution of old document. It is submitted that presumption of due execution of thirty years old document emanating from Section 90 of Indian Evidence Act has been rightly held to be available to the defendants/respondents as the defendants/respondents produced the said original agreement Ex. DW1/P1 from proper custody. It is further submitted that perusal of the said document Ex. DW1/P1 shows that it is an ancient document and there is no sufficient ground to doubt genuineness of the said document. It is submitted that said document Ex. DW1/P1 is in the nature of family arrangement and it does not require registration as it did not effect partition of the suit property. It is further submitted that there RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 16/27 17 was no necessity for Sh. Bura Mal to file a suit for specific performance since the above said arrangement in terms of document Ex. DW1/P1 was being duly acted upon and continued till date. It is submitted that agreement Ex. DW1/P1 was executed between Sh. Arura Mal and Sh. Bura Mal for the benefit of the family and the intention behind the said agreement was to bring harmony in the family and to put an end to the dispute between them. It is further submitted that a family arrangement will need registration only, if it creates any interest in immovable property in favour of the parties and in case, no such interest is created the document will be valid despite its non registration and will not be hit by Section 17 of the Registration Act. It is submitted that Ld. Trial Court has rightly held that agreement dated 20.10.1959 Ex. DW1/P1 was a family arrangement and the said family arrangement was duly acted upon. It is also submitted that the said document Ex. DW1/P1 does not create any new right in the suit property and it merely recognized preexisting rights of the parties in respect of their portion in the suit property.
It has been further submitted that plaintiffs/appellants have no right, title or interest in the suit property and more over Sh. Bura Mal had been living in the concerned portion of the suit property as an owner thereof since 20.10.1959 and therefore his title was hostile to Sh. Arura Mal and his legal heirs and the defendants/respondents perfected their title in respect of the said portion by way of adverse possession from 20.10.1971 and as such the suit of the plaintiffs before the Ld. Trial Court was barred by limitation. It is submitted that plaintiffs/appellants have failed to exercise due diligence while purchasing the suit property and rather the evidence on record shows that they were aware of the nature of the possession of RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 17/27 18 the defendants/respondents and even then plaintiffs/defendants deemed it proper to purchase the suit property without exercising normal prudence and therefore they are not entitled to raise plea of bona fide purchaser without notice. It is submitted that allotment of the suit property in the name of elder brother would not extinguish right of younger brother as the suit property was allotted in lieu of claim in respect of HUF properties in Sialkot, Pakistan and the plaintiffs/appellants have failed to prove that the said property was the personal property of Sh. Arura Mal acquired entirely by him without assistance of joint family property.
It has been submitted that suit of the plaintiffs/appellants have been rightly dismissed by the Ld. Trial Court. It has also been submitted that there was no illegality or irregularity in the impugned common judgment/decree dated 02.01.2012 passed by the Ld. Trial Court and it has been prayed that the present appeals filed on behalf of the appellants may be dismissed.
In support of his contentions, Ld. counsel for the respondent nos. 1 & 2 has relied upon the case law cited as AIR 1996 SC 1253, 2005 (4) RCR (Civil) 487, AIR 1971 SC 37, AIR 1966 SC 323, AIR 1966 SC 1836, 2008 IV AD (Delhi) 89 & 211 (2014) DLT 149 (DB).
12. I have carefully considered the submissions made on behalf of the appellants & respondent nos. 1 & 2 and have carefully gone through the record of the case. I have carefully perused the TCR. I have also carefully perused the written arguments filed on behalf of appellants and respondent nos. 1 & 2 and the case law relied upon by the Ld. counsels for the appellants and respondent nos. 1 & 2. RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 18/27 19
It is pertinent to mention here that arguments have not been addressed on behalf of the remaining respondents in RCA No. 04/12, in this case.
13. The present appeals (bearing RCA No. 04/12, RCA No. 05/12 & RCA No. 06/12) have been filed on behalf of the appellants against the impugned common judgment/decree dated 02.01.2012, whereby the Ld. Trial Court has dismissed all the three cases bearing Suit Nos. 801/08, 1852/08 & 1207/08 filed on behalf of the appellants/plaintiffs.
14. It has been submitted on behalf of the appellants that Ld. Trial Court erred in dismissing the suit of the appellants by drawing presumptions of the genuineness in respect of the document, Ex. DW1/P1 dated 20.10.1959 alleged to have been executed between Sh. Arura Mal and Sh. Bura Mal as 30 years old in the face of specific denial by the appellant. It is further submitted that Ld. Trial Court failed to appreciate that appellants have specifically denied that Sh. Arura Mal and Sh. Bura Mal constituted a HUF with the father Sh. Devi Datta and they also denied the mutual agreement dated 20.10.1959 and as such Ld. Trial Court erred in drawing inference on the basis of said document. It is submitted that Ld. Trial Court has erred in holding that the respondents are owners of the suit property and that there was no necessity for Sh. Bura Mal to file a suit for specific performance. It is submitted that Ld. Trial Court wrongly relied upon the above said alleged mutual unregistered agreement dated 20.10.1959 without there being any direct evidence to prove the same in face of the fact that Sh. Bura Mal during his lifetime never RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 19/27 20 referred to or acted upon the said alleged agreement, although he remained alive for about 27 years after the date of execution of the said mutual agreement dated 20.10.1959. It is further submitted that Ld. Trial Court failed to appreciate that the said mutual agreement dated 20.10.1959 had been set up by the respondents to take a fake defence to the case of the appellants, although the said agreement was never produced anywhere or at any stage by Sh. Bura Mal during his whole life. It is submitted that Ld. Trial Court has erred in drawing the presumption of genuineness of the above said document dated 20.10.1959 on the basis of statement of Sh.Ramesh Grover, although the said witness has stated in his evidence that he has no personal knowledge about the contents of the said agreement. It is further submitted that Ld.Trial Court erred in not accepting plea of the appellants that the said mutual agreement dated 20.10.1959 was not free from suspicion and that no evidence had been led to prove in whose custody the document was kept and whether that was filed on record from a proper custody and erred in drawing presumption of genuineness in respect of the said document u/s 90 of Evidence Act. It is submitted that Ld. Trial Court erred in holding that respondents have fulfilled twin condition by raising presumption of due execution of agreement dated 20.10.1959 and erred in holding that there was no sufficient ground to doubt genuineness of the said document, although the said document has not been proved in accordance with law. It is further submitted that Ld. Trial Court erred in holding that the said document was in the nature of Family Arrangement and does not require registration, although any such Family Arrangement if it assigns or devolves a share in the immovable property above the value of Rs.100/ in favour of another whose name is RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 20/27 21 not in the sale deed, requires compulsory registration. It is submitted that one of the conditions of the above said agreement dated 20.10.1959 was that Sh. Arura Mal agreed that at the time, price of the quarter would be adjusted from the claim and title would be given to Sh. Arura Mal from that and within 15 days Sh. Arura Mal would execute the sale deed in favour of Sh. Boora Mal otherwise Sh. Boora Mal would have the right to get the sale deed executed after obtaining decree from the court, however no such suit for specific performance has been filed by the respondents either against Sh.Arura Mal or Smt. Agya Wanti or against the appellants, although more than 51 years have passed since the execution of the above said mutual agreement and about 48 years have passed from execution of the lease deed and conveyance deed in favour of Smt. Agya Wanti and about 24 years have passed from the date of execution of the sale deed in favour of the appellants. It is also submitted that Ld. Trial Court failed to appreciate that the above said mutual agreement has no validity in the eyes of law and cannot be acted upon and erred in holding that said arrangement was duly acted and continued till date, however the said submissions made on behalf of the appellants are devoid of any merits and are contrary to the record as the perusal of the record reveals that Ld. Trial Court has properly dealt with all the averments and contentions raised on behalf of the appellants and have come to the just and reasonable conclusions on the basis of the material available on record.
In the instant case, the Ld. Trial Court has drawn presumption of genuineness in respect of the document Ex. DW1/P1 i.e Mutual Agreement dated 20.10.1959 in accordance with the provisions of Section 90 of Indian Evidence Act RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 21/27 22 which provides that where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Further, the explanation to the said section provides that documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. In these circumstances , in view of the provisions of section90 of Indian Evidence Act, it is evident that the presumption of the genuineness of a document can be raised if the said document is thirty years old and produced from a proper custody.
In the present case, in view of the material on record, it has been rightly held by the Ld. Trial Court that the defendants have produced the above said original agreement Ex. DW1/P1 and that it has been produced from proper; custody as the defendant no.2 is daughter and defendant no.1 is son in law of Sh.Bura Mal. The agreement was executed between Sh. Arura Mal and Sh. Bura Mal on 20.10.1959 and as such it is a thirty year old document . Further , both the executants of the abovesaid document Ex. DW1/P1 namely Sh. Arura Mal & Sh.Boora Mal have expired and the attesting witness & deed writer of the said document have also expired. The perusal of the record reveals that DW3 has RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 22/27 23 proved the register Ex. DW3/1 maintained by his father/deed writer wherein the said agreement was entered at S. No. 3053 dated 20.10.1959 . Ex. DW3/1 also recalls the summary of the said agreement. DW3 has identified hand writing and signatures of his father , who was deed writer and DW4 has also identified the signatures of his father / attesting witness of the said document. In these circumstances, Ld. Trial Court has correctly observed that the defendants have fulfilled twin conditions for raising presumption of due execution of the agreement dated 20.10.1959 Ex. DW1/P1 . Further, perusal of the above said document Ex. DW1/P1 shows that it is a old document and there is no sufficient ground to doubt the genuineness of the said document. The plaintiffs have also not led any evidence to prove the contrary. In these circumstances, the Ld. Trial Court has rightly relied upon the provisions of section90 of Indian Evidence Act in respect of the document Ex. DW1/P1.
15. It has been further submitted on behalf of the appellants that Ld. Trial Court has erred in holding that Sh. Arura Mal and Sh. Bura Mal had joint property in Sialkot, Pakistan, although there was no such evidence available on record and also in view of the fact that Sh. Bura Mal did not file any claim in respect of any such property before the Ministry of Rehabilitation. It is submitted that Ld. Trial Court erred in holding that above said agreement would not loose its validity and reality only for the reason that Sh. Bura Mal had not filed any suit for specific performance of the said agreement. It is further submitted that Ld. Trial Court erred in holding that the above said Family Arrangement was duly acted upon and RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 23/27 24 that it does not require registration and erred in holding that it merely recognized preexisting rights of the parties in respect of their portions in the suit property. It is submitted that Ld. Trial Court erred in holding that respondents have perfected their title in respect of the portion in question by way of adverse possession from 20.10.1971 and also erred in holding that the suit of the appellants was barred by limitation and Ld. Trial Court failed to appreciate that appellants had filed the suit within a period of less than four years from the date of purchase of said property and the question of adverse possession against the appellants could not arise. It is submitted that Ld. Trial Court erred in holding that appellants are not entitled to raise plea of bona fide purchase, although they had purchased the said property from Smt. Agya Wanti bonafidely and for a valuable consideration. It is further submitted that Ld. Trial Court has failed to appreciate that respondents were in unauthorized occupation of the suit premises and that the appellants were entitled to a decree of possession against the respondents. It is also submitted that Ld. Trial Court erred in not granting a decree for recovery of Rs.18,000/ on account of damages @ Rs.500/ per month, although the appellants were entitled to the same in view of the fact that the respondents were in unlawful and unauthorized occupation of the suit premises and were liable to pay the damages to the appellants, however the said contentions put forward on behalf of the appellants are devoid of any merits and are contrary to record as perusal of the record reveals Ld.Trial Court has rightly observed that the document i.e agreement Ex. DW1/P1 was in the nature of a family arrangement and it is does not require registration and was not compulsorily registrable as it did not effect the partition of the suit property and it RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 24/27 25 was only a recognition of preexisting rights of the parties and provided mode of enjoyment of the suit property. It has also been correctly observed by the Ld. Trial Court that there was no necessity for Sh. Bura Mal to file a suit for specific performance since the above said family arrangement was duly acted upon by the parties . Further, in view of the material on record, it has been rightly observed by the Ld. Trial Court that Sh. Arura Mal and Sh. Bura Mal had joint properties in Sialkot , Pakistan and Sh. Arura Mal had lodged claim in respect of the said properties and the claim was sanctioned in the name of Sh Arura Mal. Thereafter a dispute has arisen between Sh Arura Mal and Sh. Bura Mal and in order to maintain family peace and harmony and to recognize the right of Sh. Bura Mal , they had arrived at a family settlement. Sh. Arura Mal and Sh. Bura Mal were already in possession of their respective portion of the suit property and by way of the above said document Ex. DW1/1, they had acknowledged the right already in existence in the suit property and the said agreement had not created right , title or interest in favour of the parties qua the suit properties. It is well settled principle that court should lean in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds particularly when the parties have mutually received the benefits under the said arrangement. Further, in the case reported as 211 (2014) DLT 149 (DB), it has been laid down by the Hon'ble High Court of Delhi that family affairs which have been settled long back 197076 can not be permitted to be disturbed on frivolous and vexatious grounds.
In the present case, Ld. Counsel for the appellants have relied upon the case law cited as 1994 RLR 421, AIR 1996 SC 2814, AIR 1991 Bombay 10, AIR RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 25/27 26 1981 Delhi 291, (2005) 11 SCC 454, 128 (2006) DLT 407 (DB), (2007) 15 SCC 180, 154 (2008) DLT 707 and 211 (2014) DLT 149 (DB), however the said case law is not applicable in the instant case as the fact and circumstances of the present case are different from the fact and circumstances of the cases discussed therein and in my considered opinion, the aforesaid case law is not of any help to the appellants in this case.
16. It has been submitted on behalf of the appellants that the impugned judgment/decree passed by the Ld. Trial Court is against the law and facts on record. It has been further submitted on behalf of the appellants that impugned judgment/ decree passed by the Ld. Trial Court was based upon conjecture and surmises and was in contradiction to the fact, law, documents and evidence on record. It has also been submitted that the impugned judgment/decree passed by the Ld. Trial Court was based upon the presumption & assumptions and was not sustainable in law, however the said contentions put forward on behalf of the appellants do not hold water and are contrary to the record as perusal of the impugned judgment/decree dated 02.1.2012 reveals that it is based upon the sound, cogent and just reasoning and the same has been passed on the basis of the proper appreciation of the material on record.
17. Thus, in view of the above discussions & observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that there is no illegality or infirmity in the impugned common judgment/ RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 26/27 27 decree dated 02.1.2012 passed by the Ld. Trial Court.
Accordingly, the present appeal ( bearing RCA No. 04/12) filed on behalf of the appellants against the aforesaid impugned judgment/decree dated 02.1.2012 passed by the Ld. Trial Court in Suit No. 801/08 ( Old No. 09/91) titled as 'Sh. Avtar Singh & Ors. Vs. Sh. Raj Kumar & Ors.' is hereby dismissed.
In view of the above dismissal of the main appeal bearing RCA No. 04/12, the connected appeals bearing RCA No. 05/12 & RCA No. 06/12 have become infructuous and accordingly, the same also stands dismissed.
Decree sheet be prepared accordingly.
The main judgment be placed in the file of RCA No. 04/12 and a copy thereof be placed in the files of RCA No. 05/12 & RCA No. 06/12.
TCR alongwith copy of this judgment be sent back to the Ld.Trial Court.
Appeal files be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
( court on 25.11.2014) ADJ02 (West)
Tis Hazari Courts Delhi
25.11.2014
RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 27/27
28
RCA No.04/12
25.11.2014
Present : None.
Vide separate common judgment , announced in the open court, all these three connected appeals (bearing RCA No. 04/12, RCA No. 05/12 & RCA No. 06/12) filed on behalf of appellants against the common impugned judgment/decree dated 02.1.2012 passed by the Ld. Trial Court in Suit No. 801/08 (Old No. 09/91), Suit No. 1852/08 and Suit No. 1207/08 have been dismissed.
Decree sheet be prepared accordingly.
The main judgment be placed in the file of RCA No. 04/12 and a copy thereof be placed in the files of RCA No. 05/12 & RCA No. 06/12.
TCR alongwith copy of the judgment be sent back to the Ld.Trial Court.
Appeal files be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
( court on 25.11.2014) ADJ02 (West)
Tis Hazari Courts Delhi
25.11.2014
RCA No. 4/12, RCA No. 5/12 & RCA No. 6/12 28/27