Delhi District Court
Sh. Prem Sarup Alias Munshi Ram vs Smt. Savitri Devi on 20 July, 2013
IN THE COURT OF JITENDRA KUMAR MISHRA ADDITIONAL
DISTRICT JUDGE-CENTRAL-9, TIS HAZARI COURTS, DELHI.
RCA No.09/2010.
Unique Case I.D.No. 02401C0382532010.
IN THE MATTER OF :
Sh. Prem Sarup alias Munshi Ram
S/o Sh. Kanshi Ram,
XVI/3516, Gali No.6,
Rehgarpura, Karol Bagh,
New Delhi.
....Appellant
Versus
1. Smt. Savitri Devi,
Widow of Sh. Sant Ram.
2. Sh. Sanjay Kumar
S/o Sh. Sant Ram
3. Sh. Sanjiv Kumar
S/o Sh. Sant Ram
All R/o. House No. V-59, West Patel Nagar,
New Delhi.
....Respondents
Date of institution of the appeal : 27.08.2010.
Date of reservation for judgment : 20.07.2013.
Date of pronouncement of judgment : 20.07.2013.
JUDGEMENT.
1. This is an appeal preferred by the appellant against the judgment and decree dated 27.07.2010 passed by the Ld. Civil Judge (hereinafter referred to as 'the impugned judgment.'
2. In the present appeal, the appellant has challenged the impugned judgment on various grounds inter alia that the respondents are not in a position to prove the ownership and consequently the respondent is Prem Sarup Vs. Savitri Devi & Ors.
RCA 09/2010 1not entitled to a decree of possession. It is further objected that after passing of preliminary decree for partition, the decree can not be made effective without there being a final decree. The condition precedent is to draw up a final decree and then to engross it on stamp paper(s) of requisite value and without following this procedure there is no executable final decree as per the provisions of Order 20 Rule 18 CPC. It is further objected that the document on which the court has relied upon does not conform any title upon the respondent and therefore, no decree for possession can be passed against the appellant. It is further objected that on various issues the findings given by the Ld. Trial Court is against facts and law. It is further objected that the Ld. Trial court has not properly appreciated that the plaintiff has no locus standi to file the present suit till the preparation of the final decree which is mandatory. It is further objected that the suit has been filed after the expiry of the limitation period. It is further objected that the evidence available on record has been totally ignored. It is further objected that no notice for termination of the licence was given by the plaintiff. It is further objected that the site plan filed by the plaintiff are not correct as per the site. With these objections, the appellant has preferred the present appeal to set aside the impugned judgment and decree.
3. In this case, the appellant was the defendant and respondent was the plaintiff before the learned Trial Court. For the sake of convenience at many places in this judgment, the appellant and the respondent shall be referred to as per their ranks in the plaint as the defendant and plaintiff respectively.
4. Before going into the merits of the appeal, let facts of the case be looked into as presented by the parties in their respective pleadings submitted before the ld trial court.
Prem Sarup Vs. Savitri Devi & Ors.
RCA 09/2010 25. The respondents filed a suit for recovery of possession wherein they have claimed that they are the owners of the portion of the property bearing No.XVI/3516, Gali No.6, Rehgarpura, Karol Bagh, New Delhi. The area of the property of the defendant is 7 ½' x 30' towards the side of the property of Sh. Faquir Chand and the area of the property of the plaintiffs is 7 ½' x 30 ft. towards the side of Sh. Amir Chand.
6. The said property fell to the share of the plaintiffs by a decree passed by Sub Judge, Delhi on 22.03.1971 in suit No.492/70 (original suit No. 405/69). The mother-in- law of plaintiff No.1 and the grandmother of plaintiffs No.2 & 3 was occupying the portion of the house of the plaintiffs being the member of the family till she was alive. She died on 07.02.1986 and then the premises were continued to be in possession of the plaintiffs. The plaintiffs were residing in their own separate house and as such at the time of Smt. Bharavan Devi (mother-in-law) of plaintiff No.1 and grandmother-in-law of plaintiffs No.2 & 3, as the defendant was carrying his business in his portion of the property so the possession of the property was left with the defendant who is 'dever' (brother-in-law) of plaintiff No.1 and uncle of plaintiffs No.2 & 3 at the time of the death of Smt. Bharavan Devi. As intention of the defendant became malafide and filed a fraudulent suit against the plaintiff for permanent injunction and the said suit was pending in the court of Sub-Judge, First Class, Delhi. For these reasons, the plaintiffs therefore did not want that the defendant should continue to remain in possession of the suit property any more nor the defendant has any right or interest to retain the suit property any further. Therefore, suit has been filed with a prayer to handover the peaceful and vacant possession of the suit property.
7. Written statement filed by the defendant before the Ld. Trial Court wherein it is objected that the plaintiff has no locus standi to file the Prem Sarup Vs. Savitri Devi & Ors.
RCA 09/2010 3present suit. It is further objected that no final decree of partition was passed in suit No.492/70 (original suit No.405/69) and as such the present suit is not maintainable. The objection for limitation was also taken. It is further stated that the defendant is the exclusive owner of the whole property bearing No.XVI/3516, Gali No.6, Rehgarpura, Karol Bagh, New Delhi and is exclusive owner of the same in his own independent right as well as by adverse possession. It is further stated that no final decree was passed in suit No.492/70 and as such the pleadings in the said suit as well as the preliminary order passed in the suit is of no consequence. It is further denied that the plaintiffs were ever in possession of the suit property. It is further denied that the mother in law of plaintiff No.1 was occupying the portion of the house being a member of the family till her death. It is further stated that the mother of the defendant and mother-in-law of the plaintiff was staying at House No.670, Paschim Puri, Delhi since 1975 and she died also at the said place. As such, the plaintiffs claiming the possession through mother-in-law is a misnomer and the averments made by the plaintiffs are denied. It is further stated that Smt. Bharavan Devi was never in possession of property No.XVI/3516, Gali No.6, Rehgarpura, Karol Bagh, New Delhi either on behalf of the plaintiffs or otherwise. The defendant is carrying his business from the suit premises since beginning and the plaintiffs were never in possession of the suit property. The defendant is in exclusive possession of the suit property in his own right. The rest of the contents of the plaint are denied in the written statement.
8. Replication to the written station was also filed wherein the averments in the written statement were denied and the contents of the plaint were reiterated and reaffirmed.
9. The Ld. Trial Court vide order dated 12.02.1990 framed the following Prem Sarup Vs. Savitri Devi & Ors.
RCA 09/2010 4issues:
(i) "Whether the plaintiff is entitled to recover the possession of the suit property? OPP
(ii) Whether the suit has not been properly valued for the purposes of jurisdiction and court fees? OPD
(iii) Whether the plaintiff has no locus standi to file the present suit? OPD
(iv) Whether the suit is time barred? OPD
(v) Whether the suit is not maintainable in view of previous suit No.492/70? OPD
(vi) Whether this court has pecuniary jurisdiction to try this suit? OPD
(vii) Whether the plaintiff is the exclusive owner of the suit property? OPP
(viii) Relief."
10. I have heard the arguments as advanced by Sh. Y. P. Ahuja, ld counsel for the appellant and Sh. Dipanker Sabharwal, counsel for the respondents.
Ld counsel for the appellant relied upon Surender Vs. Gadda Blaiah 2011 Rajdhani Law Reporter. 30 (NSC); Shankar Balwant Lokhande (dead) by L. Rs. Appellant v. Chandrakant Shankar Lokhande and another, Respondents. AIR 1995 Supreme Court 1211; Dr. Chiranji Lal (D) by LRs versus Hari Das (D) by LRs. 120 (2005) Delhi Law Times 83 (SC); ; Vasudeva Murthy (deceased) by LRs Vs. Mariyappa (Deceased) By LRs & Anr. 2004(1) Civil Court Cases 440 (Karnataka); Annasaheb Rajaram Nagane and another Applicants v. Rajaram Maruti Nagane and other, Opposite Parties AIR 2001 Bombay 303 and Heir of Barot Dansang Hirji and others, Appellants v. Barot Kanji Hirji and others, Respondents AIR 1998 Gujarat 27.
Ld counsel for the respondent relied upon Venkata Reddy and others Appellants v. Pethi Reddy, Respondent AIR 1963 Supreme Court 992 (V 50 C 148) and Prem Chand Garg and another, Prem Sarup Vs. Savitri Devi & Ors.
RCA 09/2010 5Petitioners v. Excise Commissioner, U.P. and others, Respondents AIR 1963 Supreme Court 996 (V 50 C 149).
11. Now in the light of the arguments advanced by the parties before this court and as per the material available on the record, the court has to look into whether the findings given by the ld trial court is liable to be set aside or to be affirmed. Defendant in his pleadings i.e. written statement filed before the court stated in para 1 on merits that he is the exclusive and absolute owner and in possession of the whole of the property bearing no. XVI/3516, Gali No. 6, Regarpura, Karol Bagh, New Delhi. He has further stated that he is the owner in his own independent right as well as owner by adverse possession. Further in para 2, he has agitated that no final decree was passed in suit no. 492/1970 and as such the pleadings in the said suit as well as the preliminary order passed in the said suit is of no consequences. In his evidence, he has also stated that he is the owner of the suit property and he is in possession of the suit property since 1964 from the date of purchase of the property and his possession is uninterrupted. In his further evidence, it is stated by him that the suit property was purchased by his father late Sh. Kashi Ram in the name of his deceased elder brother and himself in the year 1956-57. In cross- examination, he has stated that he did not know if any decree for partition was passed on 31/03/71. He has further stated that he could not say if half of the suit property fell to the share of Sh. Amir Chand and Sh. Bal Mukund as he was not aware about any partition decree as no partition took place, the adjacent portion measuring 30feetx7 and half portion fell to the share of the plaintiff/respondent. A suggestion was given that the partition took place between the parties and the portion shown in the site plan Ex. PW1/3 was divided and the suggestion was denied. He has further admitted that his mother expired on 07/02/1986. in further cross-examination, it is admitted that Prem Sarup Vs. Savitri Devi & Ors.
RCA 09/2010 6the property ad-measuring 100 sq. yds was purchased in the joint name of himself, plaintiff, Sh. Amir Chand and Sh. Bal Mukund. Here this court observes that in cross-examination DW1 has stated totally on the reverse side i.e. earlier he was claiming himself to be the exclusive owner and now he has admitted that the suit property was purchased in the name of the defendant, plaintiff and others. He has further admitted that there are two shops in the suit premises in the portion of the plaintiff and himself and both the shops are in his occupation. On 05/08/1998, cross-examination of DW1 was deferred with the direction to produce the original ration card. On 08/07/99, DW1 brought ration card, copy of which is Ex. PW1/14. It was also noted that the original ration card did not contain ration card number. The original ration card is on the record and the same is perused. First page of this ration card is only part of the page available as the complete page is not available and whereas name of family members even address of the premises have also not been available. No step has been taken by the defendant to call a witness from the concerned department to prove that the ration card was having the address of Paschim Puri. Thus, he did not have any document to show that his mother shifted to Paschim Puri prior to 1985 as deposed by DW1 in his evidence. During cross- examination, it was stated by PW1 that she used to visit the suit property and used to stay with her mother in law i.e. the mother of the defendant. She has further stated that she took the possession of the suit property as per decree Ex. PW1/1 at the time of passing of the decree. It was suggested to her that no possession of the suit property was taken after passing of the decree and the suggestion was denied. Upon a question, it was replied by PW1 that she did not have any document to show that she had permitted her mother in law to reside in the suit premises. This court observes here that if a daughter in law lives in a family then for every petty or major things, there is no written communication among the family members. Such a situation atleast in Prem Sarup Vs. Savitri Devi & Ors.
RCA 09/2010 7this country never arises when family members would communicate through letters only and keeps the proof regarding any such communication. When it was stated by DW1 that she permitted her mother in law to reside in the suit premises then for such a consent the court can presume that chances are nil that such a permission would have been given through letter only. This court has to presume that probabilities were there for oral permission as it is not the case of the parties that the relatives of the plaintiff and her deceased mother-in-law were not cordial. Definitely, being a daughter in law the plaintiff i.e. respondent no. 1 himself have respect for her mother in law and when mother in law was going to reside in the suit property then there was no such question that she would dared to ask her mother in law to give a proof in writing and in the shape of a document. She has clarified further that she had stated so that her mother in law was not residing since 1975 in Paschim Puri house of the defendant on the basis because she was residing in the suit premises. She has further stated that she cannot show any document that her mother in law was residing in the suit premises after 1975. Admittedly, respondent no. 1 was residing at Patel Nagar house and the appellant was residing in Karol Bagh house as admittedly out of 100 sq. yds, the respondents are having shop as per site plan and annexed to that shop there is shop of the appellant. So in those circumstances, the court expects the probability that mother in law of respondent no. 1 is mother of the appellant and the appellant must have access to the documents to the mother in law of respondent no. 1 whereas there are less chances to access any document for respondent no. 1. In those circumstances, the court can accept the contention of respondent no. 1 that she cannot produce any document as she did not have any access to those documents. In such circumstances, the possession of the suit premises with the respondents/plaintiff through mother-in-law of plaintiff no. 1/respondent no. 1.
Prem Sarup Vs. Savitri Devi & Ors.
RCA 09/2010 812. Here this court observes that the appellant who has deposed contrary to the pleadings as in pleadings, he has claimed himself as exclusive owner whereas in evidence, he has admitted that the suit property was purchased not by him but by his father. It is not the case of the appellant that his father had left any Will in his favour or the Will was probated and according to the said Will he is the exclusive owner of the suit property. He has further admitted that the suit property was purchased in the joint name of appellant, respondent no. 1, Sh. Amir Chand and Sh. Bal Mukund. Thus, the appellant has told lies during evidence. This court further observes that appellant has also concealed a material fact i.e. the fact of final decree passed by the court of Sh. M. S. Saini, in March, 1971. Appellant was the party to the said proceedings and in presence of his counsels, the said final decree was passed wherein it was observed :
"this application coming on this day for final disposal before me in the presence of Sh. Dharam Pal Bhatia, counsel for the plaintiff and Sh. Narain Dass and Ram Sarup Uppal, Advocates for the defendants. It is ordered that the preliminary decree dated 07.11.68 is made final. It is further ordered that the plot in dispute is divided so as making the measurement as 7 ½' x30' and 7 ½' x30' for each side. Smt, Savitri Devi and her minor sons will get the share adjoining to Amir Chand and Bal Mukand while Prem Sarup will get adjoining to that of Faqir Chand."
This material fact has been concealed by the appellant in this court and this court is of the considered opinion that the court has to rely upon the settled principle of law wherein it is observed that whenever a party comes before this court with concealment of material facts then the said party is not entitled for any relief from this court. It is not explained by the appellant that why he has concealed such a material fact from this court or the ld trial court. There is another document Ex. PW2/1 which is the copy of sale deed executed on 30/06/1995 by Sh. Bal Mukund. Sh. Om Prakash and Sh. Jagdish Chander who are all Prem Sarup Vs. Savitri Devi & Ors.
RCA 09/2010 9sons of Late Sh. Amir Chand whereby through said sale deed they have disposed of their share. Thus, when the suit was filed before the ld trial court then all persons who executed Ex. PW2/1 were very well living in property bearing no. XVI/3516, Gali No. 6, Regarpura, Karol Bagh, New Delhi and the appellant was very well aware of this fact but still again he concealed such a fact. If executant of Ex. PW2/1 have disclosed the part of the property and there was no obstruction or objection on the part of the appellant then definitely the appellant was very well aware about the fact that he was not the exclusive owner of the property bearing no. XVI/3516, Gali No. 6, Regarpura, Karol Bagh, New Delhi. Thus, the appellant made a false pleadings before the ld trial court and he is also guilty of concealment of material fact which is very crucial fact for disposal of the case. The ld trial court also took the similar view where it was observed that the parties placed on the record sale deed Ex. DW1/P1 and also made observation that the parties have no doubt regarding the recitance in the said sale deed. The ld trial court further observed that the defendant is not the lone owner of the property bearing no. XVI/3516, Gali No. 6, Regarpura, Karol Bagh, New Delhi. Here this court further observes that the plaintiff was very well aware about the existence of Ex. DW1/P1. But he did not disclose about the existence of this document in his pleadings. Therefore, again the appellant/defendant is guilty of false evidence as in his pleadings, he has made false averments and also even in evidence. Only in cross-examination, he has admitted about the right of other parties. In M/s. S. J. S. Business Enterprises (P) Ltd. v. State of Bihar and others AIR 2004 Supreme Court 2421, it was held by the Hon'ble Supreme Court :
"13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would Prem Sarup Vs. Savitri Devi & Ors.
RCA 09/2010 10have had an effect on the merits of the case. It must be a matter which was material for the consideration of the Court, whatever view the Court may have taken. Thus when the liability to Income- tax was questioned by an applicant on the ground of her non-residence, the fact that she had purchased and was maintaining a house in the country was held to be a material fact the suppression of which disentitled her from the relief claimed. Again when in earlier proceedings before this Court, the appellant had undertaken that it would not carry on the manufacture of liquor at its distillery and the proceedings before this Court were concluded on that basis, a subsequent writ petition for renewal of the licence to manufacture liquor at the same distillery before the High Court was held to have been initiated for oblique and ulterior purposes and the interim order passed by the High Court in such subsequent application was set aside by this Court. Similarly, a challenge to an order fixing the price was rejected because the petitioners had suppressed the fact that an agreement had been entered into between the petitioners and the Government relating to the fixation of price and that the impugned order had been replaced by another order."
Further, in Bhaurao Dagdu Paralkar v. State of Maharashtra and others AIR 2005 Supreme Court 3330(1), it was held by the Hon'ble Supreme Court :
"16. Suppression of a material document would also amount to a fraud on the Court. (See Gowrishankar v. Joshi Amba Shankar Family Trust, (1996 (3) SCC 310) and S. P. Chengalvaraya Naidu's case (supra)"
Here, the court observes that the appellant has played fraud with the court as he is guilty of concealment of Ex. PW2/1 and Ex. DW1/P1. If the appellant would have disclosed about the fact of these documents in his evidence then the litigation would not have been dragged for decades.
Further, in Ramesh Chandra Vs. University of Delhi Writ Petition (Civil) 4436 of 2008 & CM Appl. 8566 of 2008, 9382 of 2008, 11390 of 2008 & 731 of 2009, decided on 21/05/2009, it was observed by Hon'ble High Court :
"24. Even otherwise, the petitioner is not entitled to any relief under writ jurisdiction for having Prem Sarup Vs. Savitri Devi & Ors.RCA 09/2010 11
suppressed the fact that in an earlier proceeding being Writ Petition No.2796/2007, which had been dismissed as withdrawn on 24th September, 2007 by this Court, the Petitioner had sought a similar prayer to quash the resolution dated 21st March, 2007 and the Memorandum dated the 22nd March, 2007. The effect of suppression of a relevant fact was considered by a Division Bench of this Court in M/s. Hilcrest Realty Sdn. Bhd. vs. Hotel Queen Road Pvt. Ltd., MNNU/DE/0023/2009 decided on 14th January, 2009 wherein it was observed in paragraph 34 of the decision that a litigant approaching a Court must disclose all relevant facts, for the failure to do so amounts to playing a fraud on the Court and the opposing party. It is of no consequence which way the facts may impact - they are required to be disclosed if they are likely to affect the decision of the Court one way of the other. Under the circumstances, we also decline to entertain this writ petition on the ground of suppression of a material and relevant fact."
13. In such circumstances, this court does not find any reason to set aside the findings of the ld trial court. The ld trial court has also dealt in detail the plea of adverse possession taken by the defendant i.e. the appellant. This court is agreed with such findings passed by the ld trial court. This court further adds that the plea of the adverse possession taken by the appellant is itself vitiated in view of the fact that in the entire pleadings or evidence no hostile possession has been claimed by the appellant. Moreover, the appellant has claimed his ownership for the entire property bearing no. XVI/3516, Gali No. 6, Regarpura, Karol Bagh, New Delhi but admittedly Ex. PW2/1 was executed and the appellant was very well aware about this document in the year 1995. Further this court observes that the possession of co-owner at the joint property is the possession on behalf of other co-owner unless hostile possession would have been claimed by the claimant.
14. Regarding the possession of the respondents, it is already observed by this court in this judgment that mother in law of respondent no. 1 was living at her portion at property bearing no. XVI/3516, Gali No. 6, Regarpura, Karol Bagh, New Delhi and there is no challenge to this Prem Sarup Vs. Savitri Devi & Ors.
RCA 09/2010 12right by the appellant during cross-examination. It is not challenged by the appellant that mother in law had lived at the portion of the respondents not with the permission of the respondents but at the instance of the appellant.
15. Another plea taken by the appellant that the final decree was not prepared. This plea does not hold water as the respondent has successfully proved Ex. PW1/1 which is final decree passed by the court of Sh. M. S. Saini in March, 1971 through such fact was concealed by the appellant before the ld trial court.
16. In view of the observations made herein above this court does not find any merit in the appeal filed by the appellant and, therefore, the appeal is dismissed. Since this court has already made observations that the appellant has made false pleadings before the ld trial court and also made evidence contrary to such pleadings, therefore, the appeal is dismissed with a cost of Rs. 50,000/- payable to the respondents. Another added fact to impose this cost upon the appellant that the appellant by making false pleadings deprived the respondents including respondent who is widow of late brother of the appellant and she along with her children contested this litigation for decades. All interim orders stand vacated. Trial court record be sent back along with copy of this judgment. Appeal file be consigned to record room.
Announced in the open Court (Jitendra Kumar Mishra) Dated: 20/07/2013. ADJ-09, Central, Tis Hazari Courts, Delhi Prem Sarup Vs. Savitri Devi & Ors.
RCA 09/2010 13 RCA 09/201020/07/2013 (At 5:00 pm) Present : None.
Vide separate judgment announced in the open court today, the appeal filed by the appellant is dismissed with a cost of Rs. 50,000/- payable to the respondents. All interim orders stand vacated. Trial court record be sent back along with copy of this judgment. Appeal file be consigned to record room.
(Jitendra Kumar Mishra) ADJ-09, Central, Tis Hazari Courts, Delhi 20.07.2013 Prem Sarup Vs. Savitri Devi & Ors.
RCA 09/2010 14