Delhi District Court
Rightly Relied Upon The Case Of Suraj ... vs . State Of Haryana: 183 on 5 June, 2015
IN THE COURT OF SH. SUMEDH KUMAR SETHI,ACJ/CCJ/ARC(WEST)
TIS HAZARI, DELHI
EX No. 73/14
Date of Institution of application: 12.09.14
Date of disposal of application : 05.06.15
Sh. Gauri Shankar Gupta (Since deceased)
Through Legal Heirs ....... Decree Holder
Sh. Har Narain (Since deceased)
Through Legal Heirs ....Judgment Debtor
ORDER ON THE OBJECTIONS
1. The present objections have been moved by the objectors Sh.
Kewal Kishan Gupta, Sh. Sanjeev Aggarwal and Sh. Prem Chand. The
present objections have been moved against the execution petition filed
for the purpose of executing the appellate decree dated 08.08.2014 which
merged with the trial Court decree of 09.11.2009 in suit No.
1062/2002/1970 and the other appellate Court decision dated
17.08.2010. In the objections, the objectors have alleged:-
1.1 That the objector no. 1 and 2 purchased a portion of property
bearing no. 535/XVIII situated in Nai Basti, Kishan Ganj, New
Delhi-110007 measuring 22 square yards consisting of ground floor with
roof rights vide agreement to sell, GPA, SPA, receipt etc. dated
24.03.2001 from the judgment debtor for a sale consideration of Rs.
3,25,000/-.
1.2 That the judgment debtor also handed over the photocopies of
ownership documents which contained a registered document of
purchase in favour of the father of the judgment debtor i.e. GPA/Receipt
which is registered as document no. 319 in Addl. Book No. 4, Volume No.
723 on page 136 on 15.01.1980.
1.3 That on 24.03.2001, the objectors no. 1 and 2, Sh. Kewal Kishan
Gupta and Sh. Sanjeev Aggarwal were put in possession of 22 sq. yards
of the land by the judgment debtor and after taking possession the
objectors no. 1 and 2 have been using the property themselves. The said
property is being used for commercial as well as for residential purpose.
EX NO.73/14 Page 1 of 26
1.4 That after purchase of the property, the objectors no. 1 and 2
raised the construction on the first and second floors in the year 2008 and
the upper floors are in joint possession of the objector no.1 and 2 and
they are being used for residential purposes.
1.5 That the JD also sold the other portion measuring 22 sq. yards to
the objector no.3, Sh. Prem Chand vide registered GPA dated 14.03.2008
and the objector, Shri Prem Chand was put into possession of the said
portion.
1.6 That on 26.08.14 the judgment debtor alongwith other two three
unknown persons came to the property of the objectors no. 1 and 2 at
about 5.00 p.m. in the evening and started threatening the objectors that
they have to vacate the premises and the premises are not vacated upto
30.08.14 then the judgment debtor shall forcibly dispossess the objectors
no. 1 and 2 from the suit property.
1.7 That the objectors filed a suit for injunction against the JD seeking
relief of injunction. The aforesaid JD appeared before the Court of Ms.
Shama Gupta, ld. CJ, Delhi on 09.09.14 and made the statement that the
JD shall not dispossess the objectors Sh. Kewal Kishan Gupta and Sh.
Sanjeev Aggarwal from the said property and he further deposed before
the Hon'ble Court that he has sold the property to said objectors no. 1
and 2. The said JD further disclosed about the decree passed by Court of
Sh. V.K. Rai, CJ, Delhi dated 09.11.2009 and further disclosed that he
had challenged the said decree in the Court of Sh. Paramjeet Singh, ld.
ADJ, Delhi and the same has also been dismissed.
1.8. That it was also disclosed by the JD that he has also filed the
objections to the execution petition which is pending before this Court
and the next date of hearing is 12.09.2014.
1.9 That the objectors no. 1 and 2 have been in continuous, open,
undisturbed, legal, uninterrupted possession of property measuring 22 sq.
yards comprising of ground floor, first floor and second floor in property
bearing no. 535, Nai Basti, Kishan Ganj, Delhi as owners thereof since
the year 2001. The possession of the objectors is hostile to whole world
and even hostile to the DH as well as the JD herein.
1.10 That the DH and JD have colluded with each other and a collusive
EX NO.73/14 Page 2 of 26
decree has been obtained by the DH and the JD by paying fraud upon the
Court with respect to property no. 535, Nai Basti, Kishan Ganj, Delhi.
Both DH and JD have concealed and suppressed the facts from this
Court and from the other Courts that the objectors no. 1 and 2 are in
possession of the property in question for the last more than 12 months
as owners. Even otherwise the possession of the objectors no. 1 and 2
being continuous, undisturbed, undisputed, uninterrupted and hostile to
whole world as well as to the actual owners since the year 2001, has
perfected into title by way of adverse possession and description.
1.11 That the DH as well as the JD have remained mute spectators and
allowed the objectors to occupy the property in question as owners not
only amounts to waiver and relinquishment of their legal rights with
respect to portion of properties in possession of the objectors no. 1, 2 and
3 but it will also amount to acquiescence on the part of the DH and the
JD.
1.12 That the decree dated 09.11.2009 passed by Sh. V.K. Rai, CJ,
Delhi is not at all binding against the objectors as the objectors were
neither the parties to the suit nor they were ever called by the Court.
1.13 That they prayed that the Court may kindly stay the execution
proceedings and adjudicate the objections of the objectors as per law and
consequently set aside the decree dated 09.11.2009 passed by Sh. V.K.
Rai, CJ, Delhi.
2. In reply to the objections filed by the objectors, the DH has
alleged:-
2.1 That the objectors, even on the face of what they propound in the
text of their objection petition, are transferees pendente lite from the
judgment debtor(s). As such, the objection petition in hand is apparently
misconceived, untenable and/or mischievous.
2.2 That the judgment and decree both dated 09.11.2009 passed by
this Court against the judgment debtors and in particular against Shri
Dalbir Singh son of Shri Madan Lal (one of the judgment debtors herein)
has attained finality on 08.08.14 (when the ld. first Appellate Court had
dismissed the first appeal of the judgment debtors directed against the
the original judgment and decree both dated 09.11.2009 (passed by this
EX NO.73/14 Page 3 of 26
Court)).
2.3 That the objectors, on their own showings, claim their purported
title to a portion of the immoveable property subject matter of this action
through the said Shri Dalbir Singh , judgment debtor herein. It goes
without saying that, on the face of what is alleged by the objectors herein,
jointly and/ or severally, they are the stooges of the judgment debtors
herein, and are, therefore, bound by the decree dated 09.11.2009 (as
affirmed on 08.08.2014 in appeal) more so as they claim their purported
title through the judgment debtors (and not through anybody else).
2.4 That the objectors are in league and collusion with judgment
debtor Shri Dalbir son of Shri Madan Lal. They have been prompted by
the said judgment debtor Shri Dalbir son of Shri Madan Lal so as to try
and thwart the present execution proceedings.
2.5 That the fact that the objectors (on their own showings and
allegations) have preferred objections petition in hand overnight goes to
show that they are always aware of all relevant facts and that they were
ready with the text of the objection petition so as to institute the same as
soon as this Court was likely to issue warrants of possession and, and
thus attempt to thwart the execution proceedings at the behest of
judgment debtor Shri Dalbir (the judgment debtor) son of Shri Madan Lal
for as long as possible.
2.6 That the alleged sale/purchase never fructified (in the eyes of law).
It is well settled today that an agreement to sell, GPA, SPA, receipt, Will
etc. are not 'documents of conveyance' of title qua immoveable property.
2.7 That it is also far-fetched to say that the father of judgment debtor
herein had purchased the premises, referred to in para 2 of the objection
petition in hand, in terms of a GPA/receipt which was registered, as
alleged, way back on 15.01.1980(as alleged). The said alleged
document , allegedly registered on 15.01.1980 was not (in the eyes of
law) a Deed of Conveyance in respect of the 'premises in suit'. The
alleged receipt did not and does not confer and title upon the alleged
transferee, namely, the father (since deceased) of the judgment debtor.
2.8. That Shri Hari Narain (since deceased), who had allegedly
executed that purported document allegedly registered on 15.01.1980 in
EX NO.73/14 Page 4 of 26
favour of Sh. Madan Lal (since deceased; father of the judgment debtor
herein) being one of the defendants/judgment debtors herein in this
action (in which the decree in hand was ultimately passed after 39 years
of trial)did not possess any right, title or interest in the 'premises in suit' or
in any part thereof much less in the immoveable property which is the
subject matter of para 2 of the objection petition in hand. He was held to
be an illegal occupant of the same.
2.9 That the issue/cause was admittedly subjudice even prior to
15.01.1980. This Court has already ascertained and held that Said Shri
Har Narain (since deceased), Shri Madan Lal (since deceased;father of
judgment debtor herein) and/or Shri Dalbir (the judgment herein) had no
right, title or interest in the immovable property (land) subject matter of
these execution proceedings (bearing Municipal No.535/XVIII, Nai Basti,
Kishan Ganj, Delhi-110007. This finding of this Court has attained finality
with the dismissal of the first appeal on 08.08.2014.
2.10 That Shri Har Narain on the face of the present record, had merely
claimed, initially, to be a tenant qua open land underneath this house.
Later on, he and/or his heirs, abandoned his claim(s) of being a tenant
and sought to be propound adverse possession. The pleas are negatived
not only in the judgment dated 09.11.2009 but also in the appellate
judgment dated 08.08.2014.
2.11 That the objectors, even on their own showings, are bound by the
same. They do not possess any independent title whatsoever to the
property in reference in these execution proceedings or in any part
thereof.
2.12 That these objections (i.e. the objection petition) are specifically
barred under Order XXI Rule 102 CPC).
2.13 That Shri Prem Chand never acquired any title to the aforesaid 22
square yards, referred to in para under reply, for the judgment debtor Shri
Dalbir himself had no right, title or interest (as held by this Court) in the
said premises/land in reference and, therefore, could not create in favour
of anybody much less Shri Prem Chand a title better than his own. He
has been held to be an illegal occupant occupant (trespasser) in the
premises/land subject matter of these execution proceedings.
EX NO.73/14 Page 5 of 26
2.14 The appellate judgment was pronounced by the ld. appellate Court
on 08.08.14. The present execution petition was instituted by the decree
holders on 25.08.14. Manifestly, judgment debtor (Shri Dalbir son of Shri
Madan Lal) and his counsel were closely watching the proceedings. This
is apparent on the face of the appearance lodged before this Court by
counsel for judgment debtors on 29.08.14. As soon as the execution
petition was presented to this Court on 25.08.14 the judgment debtors
instigated the objectors herein, jointly as well as severally, to try and
thwart the execution proceedings.
2.15 That it is specifically denied that the objectors learnt of the decree
dated 09.11.2009 (as affirmed in appeal on 08.08.14) only on 09.09.14,
as alleged. The objector no.2, as also judgment debtors herein, were
constantly approaching the decree holder no.1 (a) requesting for an
amicable settlement.
2.16 That on one hand the objectors, jointly as well as severally, claim
to be the owners of 22 sq. yards of land with super structure built thereon
till the second floor. In the same breath they claim to be in hostile
possession of the land/immoveable property of which they themselves
claim to be the owners.
2.17 That it is specifically denied that objectors were in hostile
possession of the property which is the subject matter of these execution
proceedings or any part thereof.
2.18 That it is also denied that these execution proceedings are barred
by acquiescence, as alleged.
2.19 That it is incorrect to say that there is collusion between the decree
holders, on one hand, and the judgment debtors, on the other hand, as
alleged. Had it been so, the parties would not have resorted to such
extensive litigation lasting more than 44 years.
2.20 That the alleged construction was raised by the
defendants/judgment debtors. It was always illegal construction. As such,
the defendants/judgment debtors and/or the objectors can not seek to
take any advantage of their own wrongs.
3. Arguments on objections have been heard. Material on record
perused. Submissions considered.
EX NO.73/14 Page 6 of 26
4. The first objection raised by the objectors pertains to allegedly
acquiring the portion of the suit land vide documents dated 24.03.2001
and 14.03.2008 respectively. At the very outset, ld. Counsel for DH has
rightly relied upon the case of Suraj Lamps vs. State of Haryana: 183
(2011) DLT 1(SC) wherein it has been clearly held that the documents
such agreement to sell, GPA etc. are not deeds of conveyance and do
not convey title upon the alleged transferee. Even if it is assumed for the
sake of arguments that the said documents have conveyed certain rights
upon the objectors, then such conveyance is clearly hit by doctrine of lis
pendens. In this regard, it has been held in the case of Usha Sinha Vs.
Dina Ram & Ors.: 2007 (7) SCC 144, wherein the Hon'ble Apex Court
has held that :-
"23. It is thus settled law that a purchaser of suit property during the pendency of
litigation has no right to resist or obstruct execution of decree passed by a competent court.
The doctrine of "lis pendens" prohibits a party from dealing with the property which is the
subject matter or suit, "Lis pendens" itself is treated as constructive notice to a purchaser
that he is bound by a decree to be entered in the pending suit. Rule 102, therefore, clarifies
that there should not be resistance or obstruction by a transferee pendente lite.
24. In Silverline Forum (P) Ltd. v. Rajiv Trust this Court held that where the resistance
is caused or obstruction is confined to a question whether he was a transferee passed.
Once the finding is on the affirmative, the executing court must hold that he had no
right to resist or obstruct and such person can not seek protection from the execution court.
........
26. For invoking Rule 102, it is enough fro the decree-holder to show that the person resisting the possession or offering obstruction is claiming his title to the property after the institution of the suit in which decree was passed and sought to be executed against the judgment debtor. If the said condition is fulfilled, the case falls within the mischief of Rule 102 and such applicant can not place reliance either on Rule 98 or Rule 100 of Order 21.
29. The High Court, in our opinion, rightly held that the appellant could not be said to be a "stranger" to the suit inasmuch as she was claiming right, title and interest through Defendants no.4 and 5 against whom the suit was pending. She must, therefore, presumed to be aware of the litigation which was before a competent court in the form of Title Suit No. 149 of 1999 instituted by the present respondent against the predecessor of the appellant."
30. As held in Bellamy, the fact that the purchaser of the property during the pendency of the proceedings had no knowledge about the suit, appeal or other proceeding is holly immaterial and he/she can not resist execution of decree on that ground."
5. Thus, it is clear from the law laid down above that the objectors are nothing but mere transferees pendentelite as in the present case, the suit has been going on for decades before the property was allegedly EX NO.73/14 Page 7 of 26 conveyed to the objectors. Even otherwise, the objectors have obtained right if any, in the suit land from the JD Dalbir. Thus, as the JD Dalbir himself has been held to be an unauthorized occupant in the suit property, the objectors can not claim any right in the same as no person can pass on a better title in any property than which he himself has. Therefore, this objection stands decided in favour of the DH and against the objectors.
6. The next objection that has been taken by the objector is with regard to alleged collusion between the DH and JD. In this regard, the DH has rightly relied upon the case of Nand Lal Patel vs. Shiv Saran Lal & Ors.: 1984(1) ILR (Delhi) 913, wherein it has been held that :-
"42. In the present case, there is no suggestion even that the suit between Nand Lal Patel and Shiv Saran Lal was a collusive one. In any case, there is no evidence on the record to suggest any collusion between them. An examination of the file, on the other hand, shows that the suit was hotly contested. According to the averments contained in the written statement filed by the judgment- debtor, the plaintiff had no right in the property in dispute. One of the issues was, whether the plaintiff was the co- owner of the property in dispute as alleged. The parties agreed to have the respective shares only after the filing of the report by the Local Commissioner on which objections had been filed and arguments had been heard. It cannot be said that the suit was collusive. The right to immoveable property, i.e., the property in dispute, was directly and specifically in question in the suit. Therefore, any transfer during the pendency of the suit till satisfaction or discharge of the decree would be hit by s. 52 of the Transfer of Property Act and would not effect the rights of the decree holder. It can not be disputed that a transfer, includes the grant of a lease. Therefore, a lease of any portion of the property in suit during the pendency of the suit would be hit by the rule contained in s. 52 of the Transfer of Property Act."
7. In the present case, litigation went on for about 40 years before the matter was finally decided in 2009 only to be challenged in first appeal which was also hotly contested but ultimately dismissed. Thus, any collusion between DH and JD stands negated in view of the prolonged and hotly contested battle fought between the parties to this case. Moreover, collusion between the objectors and JD seems manifestly apparent in view of the fact that it is the JD who told the objectors about the appellate decree and within a few days of the same these objections were filed. It is interesting as well as amusing that the objectors have alleged that the JD tried to dispossess them and when they filed a civil suit against him he very quaintly gave a statement before the concerned EX NO.73/14 Page 8 of 26 Court that he would not dispossess the objectors and to their benefit, also very conveniently informed them about the appellate decree in this case. Thus, the very submissions made by the objectors smack of collusion between them and the JD. Hence, the objection is held to be highly untenable and stands decided in favour of DH and against the objectors.
8. The objectors have next contended that they have gained title to the portion of the suit land in question by way of adverse possession and by way of acquiescence. In this regard, it is noteworthy that on one hand the objectors have claimed to have purchased the portion of the suit property and in the same breath on the other hand they claimed title to the portion in question by way of adverse possession without deliberating over the fact that one can not gain title by way of adverse possession over property which he proclaims to have purchased. These are mutually destructive and contradictory objections and the objectors can not claim benefit of the same. Therefore the objections stand decided in favour of the DH and against the objectors.
9. As far as the defence of acquiescence is concerned, the DH has rightly relied upon the case of Kanshi Ram v. Kesho Ram: AIR 1961 Punjab 299 wherein it was held that :-
"(8) ... There is, however, authority for the proposition that the principle of estoppel must yield to the doctrine of lis pendens under which no title in property could be validly transferred during the pendency of litigation in respect of it. In Shafiq-Ullah Khan v.
Sami-ullah Khan, ILR 52 All 139; (AIR 1929 All 943) it was ruled by Sir Muhammad Sulaiman and Pullan JJ., that "the estoppel arising under S. 41 cannot be such as to override the imperative provisions of S. 52". In the words of Pullan J.,"Sections 41 and 52 are mutually exclusive . In the case of a transfer in the circumstances mentioned above, S. 41 does not arise". It was held that where the transfer was made during pendency of litigation, no question of estoppel under section 41 could arise. A similar view was enunciated in Gendmal v. Laxman, ILR 1944 Nag 852: (AIR 1945 Nag 86) by a Division Bench of Nagpur High Court (Nivogi and Digby JJ.) It was ruled that an estoppel under S. 41 can not override the imperative provisions of S. 52 of the Act."
10. This observation relied upon by the DH hits the nail on its head as it has been clearly propounded that any defence raised on the ground of alleged estoppel or acquiescence is subsurvient to the doctrine of mis pendence as shrined in section 82 of transfer of property act 1882. In view of the aforesaid, the objection is found to be highly untenable and is decided in favour of DH and against the objectors.
EX NO.73/14 Page 9 of 2611. Lastly, the objectors have submitted that they have raised construction over the first and second floors of the portion of the suit land in question. In these circumstances, it is hereby held that if at all any such construction has been raised then the same amounts to unauthorized/illegal construction over another man's land. It has already been discussed in foregoing paragraphs that the objectors could not have been unaware of the pending litigation between the parties to this case. Thus, the objectors do not deserve any relief for the construction raised by them at their own peril being aware of pending litigation. For the record, no such relief in respect of construction has even been claimed.
12. It is settled law that it is not incumbent upon the executing court that it must put to trial every objections which are filed in any execution proceedings, even if prima facie they appear to be frivolous , vexatious and are only intended to delay the execution and frustrate the procedure of law or where it amounts to an abuse of the process of the Court. It is already apparent that the objection petition has been filed in collusion with the JD merely to delay the execution and keep the DH away from the fruits of his prolonged litigation. Thus, it is hereby held that no useful purpose could be served by allowing the objectors to lead evidence in favour of their objections as even if their own submissions are believed to be true then also they are not entitled to resist the execution petition filed by the DH in view of applicable law of the land.
13. In view of the facts and circumstances stated above, the application filed by the JD stands dismissed.
Announced in the Open Court (S. K. SETHI)
on 05th June 2015 ACJ/CCJ/ARC(W)/05.06.2015
EX NO.73/14 Page 10 of 26
IN THE COURT OF SH. SUMEDH KUMAR SETHI,ACJ/CCJ/ARC(WEST) TIS HAZARI, DELHI EX No. 73/14 Date of Institution of application: 08.12.2014 Date of disposal of application: 05.06.2015 Sh. Gauri Shankar Gupta (Since deceased) Through Legal Heirs ....... Decree Holder Sh. Har Narain (Since deceased) Through Legal Heirs ....Judgment Debtor ORDER ON THE APPLICATION U/S 340 Cr.P.C FILED BY THE JD
1. The present application u/s 340 Cr.P.C has been filed by the JD and appears to be a last ditch effort on his part to stall the execution proceeding in this case. In the application, the JD has alleged that the DH relied upon a compromise decree purportedly passed by the Agra Civil Court in partition suit no.74/47 which was Exhibited on record as Ex.GL1/14. It has been pointed out by the JD that during the present suit no title deed has been exhibited by DH. It has further been alleged that the DH stated that his predecessors in interest were the owners of the suit property. Whereas as per revenue records, the land was found to be Banjar Quideem.
2. It has also been alleged by the JD that the LR of the DH Mr. Deepak Gupta has filed his affidavit in evidence to the effect that Gauri Shankar Gupta was the owner of the suit property. It is also stated that in the cross examination of Mr. Deepak Gupta conducted on 19.11.2005, the witness has stated that the sale deed of the property has been destroyed and that he has not procured any certificate of destruction.
3. It is lastly alleged that contrary to what was stated by the witness during evidence, the JD has now managed to obtain a certified copy of the original plaint filed before the Agra Civil Court. Thus, it has been alleged that the LR of the DH has committed various offences such as those under Section 187, 191, 193, 196, 197, 198, 199, 120 A, 120, 200, 415 and 420 IPC.
EX NO.73/14 Page 11 of 264. In reply to the application, it has been stated by the DH that this application is an abuse of process of the court and has been filed merely to delay the proceedings. The DH has also informed the court that the JD has already filed a second appeal against the Appellate Court judgment dated 08.08.2014 but the same has not come up for hearing yet. Hence, the JD wants to stall the execution of the Appellate Court Judgment.
5. He has also stated that the application at hand is without any merits as the production or otherwise of the records from the Agra Court are no more res-integra to the dispute in question as the DH as well as his predecessor in interest have already been held to be the owners of the suit property.
6. All concerned have been heard. Material on record perused. Submissions considered.
7. The present application does not require detailed deliberation as a number of aspects raised herein have already been dealt with by the Ld. Trial Court, the Ld. Appellate Court as well as this court itself while deciding the objections filed by the JD as well as the subsequent purchasers.
8. It is manifestly apparent that the DH has claimed ownership on the basis of compromise deed Ex.GL1/14. The title of the DH has been affirmed by the Ld. Trial Court as well as the Ld. Appellate Court. The objection made before this court in this regard has already been rejected. The compromise decree remains unchallenged till date. Moreover, the records of the Agra Court were already produced before the Ld. Trial Court during the suit on 05.03.1981. A similar application for calling records from the Agra Civil Court was declined by the first Appellate Court on 22.07.2014. Thus, it is clear that the records of the Agra Civil Court are no more pertinent to deciding the dispute which already stand decided by the Ld. Civil Court, Ld. Appellate Court as well as this court being the executing court.
9. The JD has enumerated various provisions of the IPC for the purpose of highlighting various offences allegedly committed by the DH. Chapter XI of the IPC which refers to offences relating to Contempt of Lawful Authority of Public Service runs from Section 172 IPC to Section EX NO.73/14 Page 12 of 26 190 IPC. Chapter XI which pertains to offences relating to False Evidence and offences against the Public Justice runs from Section 191 IPC to Section 229 IPC. Most of the provisions cited by the JD fall within two chapters. However, it is a necessary ingredient for taking action under Section 340 Cr.P.C regarding the commission of said offences that administration of justice should have been adversely effected. As has already been pointed out above, as the record of the Civil Court at Agra is not pertinent to the dispute raised in this case, justice has not been effected adversely by the non production of these records. Further, even as per the JD himself, the DH during his cross examination on 19.11.2005 has stated that the sale deed has been destroyed 'as per his knowledge'. This shows that there was no intentional default on part of the DH and he stated what he bonafide believed to be true. This further draws support from the fact that the DH has also stated that he has not procured any certificate of destruction. Thus, he has come clean before the court and has not made any effort to conceal anything. Therefore, any malafide intention as alleged by the JD is not even prima facie apparent from the evidence adduced by the DH during the course of trial.
10. For the reasons given above, the application at hand is found to be without any merit and the same is hereby dismissed.
Announced in the Open Court (S. K. SETHI)
on 5th June 2015 ACJ/CCJ/ARC(W)/05.06.2015
EX NO.73/14 Page 13 of 26
IN THE COURT OF SH. SUMEDH KUMAR SETHI,ACJ/CCJ/ARC(WEST) TIS HAZARI, DELHI EX No. 73/14 Date of Institution of application: 12.09.2014 Date of disposal of application: 05.06.2015 Sh. Gauri Shankar Gupta (Since deceased) Through Legal Heirs ....... Decree Holder Sh. Har Narain (Since deceased) Through Legal Heirs ....Judgment Debtor ORDER ON THE OBJECTIONS
1. The present objections have been moved by the JD against the execution petition filed for the purpose of executing the appellate decree dated 08.08.2014 which merged with the trial Court decree of 09.11.2009 in suit No. 1062/2002/1970 and the other appellate Court decision dated 17.08.2010. In the objections, the JD has alleged that:-
1.1 That the decree holder has asserted his right of ownership on the basis of the partition decree in Civil Suit No. 74/1947 before Agra Court.
The Agra Court has never determined the title of the suit property. This was a compromise decree between members of family. Subsequently the objector came to know that by playing fraud upon the Municipal Authority and without submitting any title document the decree holder has got mutated the property in his name which too does not confirmed the title. It is important to point out that the property in Khasra no. 466 and 805/407 vide jamabandi for the year 1960-61 does not belong to the decree holder as alleged in the plaint. The decree holder is trying to possess the property of which he is not owner.
1.2 That the suit property i.e. land in dispute is recorded as Gai Mumkin and banjar quadeem. Neither the plaintiff is owner nor the Civil Court had jurisdiction and entertain the suit. There being complete bar against the jurisdiction of the Civil Court the decree is nullity and not enforceable.
1.3 That the decree in suit no. 74/1947 is without jurisdiction regarding EX NO.73/14 Page 14 of 26 the subject matter; moreover the said decree is in personam and not in rem not binding upon the objectors. Again the plaintiff relied upon the partition decree in suit no. 317/1959 before Sh. Dalip Singh, the then ld. Sub Judge, 1st Class, Delhi. The said suit was also before the Court of inferior jurisdiction firstly (i) value of the suit for purposes of jurisdiction Rs. 2,80,000/-. It is submitted that in the year 1959 there was no jurisdiction of the ld. Sub Judge so high even the jurisdiction value of the District Court was so low. In this suit also a consent decree obtained which is also a decree in personam and not in rem. (ii) in view of the above said discussion i.e. Land is banjar qudim the Civil Court jurisdiction is completely barred.
1.4 That by concealing the important fact from the Court the decree holder has taken the decree and also he deposed false during cross examination dated 19.11.2005 "As per my knowledge property of Bagh Baraf Khana (earlier known as Patti Jahannuma) was purchased in 1906. The sale deed of the same has been destroyed within the original judicial file of Civil Suit No. 74/47 in the court of ld. Civil Judge, Agra." Neither there is any whisper vig registration No., Addl. Book No. Vol No. Page No. mentioned in the plaint filed before Agra Court in the year 1947 nor such record weeded out.
1.5 That the objectors craves leave to lead evidence and called for the record of this case, and from Agra Court also. The decree is a nullity when the property found a Government land without determining this point the Court can not execute the decree.
1.6 That the decree holder has not paid adveloram court fees even after granting time by the trial court. The decree is nullity and the suit was liable to be dismissed.
1.7 That the ld. Trial Court was pleased to frame a preliminary issue "Whether the suit is not properly valued for the purposes of court and jurisdiction" This issue involves three things, valuation, jurisdiction and court fees which are not decided by the trial court thus the decree is erroneous and not executable.
1.8. That even if the decree is to be executed it can not be executed without making of proper provision of execution because EX NO.73/14 Page 15 of 26
(a) The decree is of open land over which structure is constructed which is within knowledge of the decree holder.
(b) Of which extent the decree is and which extent is mentioned in the execution and attached site plan.
(c) Which portion is pressed for possession and in which the judgment debtors are in possession if there are difference what does its effect.
(d) That in the array of parties there are 1 to 5 judgment debtors. Only the JD no. 1 and 2 Dalbir and Ram Pyari had filed RCA No. 18/10 which is dismissed on 08.08.14 by Sh. Paramjeet Singh, ADJ, Delhi. Therefore, rest of JD No. 3 (a)(b) (i)(3)(i)(ii)(iii), (4) (5) and 4 (a) (i)(ii)(iii) (b) (ii)(iii) (iv)
(c) are entitled to be served with notice of execution under Order XXI Rule 22 CPC.
(e) That in the suit the prayer clause relates to about property 48x39 ft. of land but in the judgment and decree of the trial court such measurement are not mentioned which is defective decree can not be executed.
(f) That the decree of the open land and for compensation of Rs. 4 Lacs, the trial court has directed to pay for super structure which is not paid by the plaintiff/DH so far.
2. In reply to the objections filed by the JD, the DH has alleged that :-
2.1 That it is manifest that the objection petition is bereft of merit, more so as it is settled law that this Court being the ld. executing court can not go behind the decree even if the same be erroneous ( as has been repeatedly propounded by the defendants/JD's/objectors herein, in the text of the objection petition) on facts and/or in law. In this regard reference may kindly be made to the judgment of the Hon'ble Supreme Court of India enunciating law on the subject and in particular Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman reported as AIR 1970 Supreme Court 1475 where the Apex Court has held as follows:-
"6. A Court executing a decree cannot go behind the decree between the parties or their representatives' it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it to be erroneous is still binding between the parties.
7. When a decree which is a nullity, for instance, where it is passed bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a EX NO.73/14 Page 16 of 26 ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the execution appears on the face of record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. In Jnanendra Mohan Bhaduri v. Rabindra Nath Chakravarti, 60 Ind App 71= (AIR 1933 PC 61) the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction."
2.2 That the objectors/judgment debtors (hereinafter for the sake of convenience called and referred to as 'the judgment debtors') had assailed the decree dated 09.11.2009 by way of an appeal under Section 96 CPC before the ld. District Judge (District:West), Delhi and that appeal (after several ups and downs) has been finally adjudicated upon on merits by Sh. Paramjeet Singh, ld. ADJ (District:West), Delhi by judgment and decree dated 08.08.14 (copy of which is already on the judicial file of these execution proceedings). The judgment debtors have not assailed the aforesaid decree dated 08.08.14 any further in vertical judicial review and therefore the same (as on date) has attained finality. 2.3 That the question of title of the plaintiffs/decree holders has already been gone into by this Court (before the decree) as also by the ld. first appellate court on 08.08.14 while affirming the judgment and decree dated 09.11.09 passed by this court. Even otherwise, the title of the decree holders to these premises has already been upheld by a ld. Single Judge of Hon'ble Delhi High Court in the other three connected causes which were originally consolidated for purposes of trial and adjudication with this cause but were separated at the stage of first appeal (due to diverse reasons that need not be spelt out herein) in RSA No. 151/12 titled as Shri Giri Lal & Ors. Vs. Shri Deepak Gupta & Ors. 2.4 That it is specifically denied that there was any fraud at any stage committed by the plaintiff(s)/decree holders with a view to establish their title to the premises/land in reference in this action. The judgment debtors have had this issue urged before the ld. appellate court through their EX NO.73/14 Page 17 of 26 current legal advisor Shri Shravan Dev Advocate and therefore they are not entitled to re-agitate this issue all over again. 2.5 That the Ld. Court as well as first appellate court after examining the pleas set out by defendants/judgment debtors in their written statement (original as well as amended) concluded that the defendants/judgment debtors had on the face of their own averments admitted that the original plaintiff (since deceased) was one of the co- owners of the land that was/is the subject matter of the decree(s) in hand. More important is the fact that in the amended written statement of 1997 on the records of ld. trial court the defendants/judgment debtors had themselves propounded that they were "tenants under the plaintiff". Having said so (which plea was subsequently found to be incorrect and untenable inasmuch as the defendants/judgment debtors had opted to propound adverse possession against the original plaintiff), the suit for recovery of possession of the present property/land was decreed against the defendants/judgment debtors as far back as on 09.11.2009. 2.6 That the purported jamabandi for the year 1905-06, a copy of which has been annexed to the objection petition in hand is of no consequence, particularly in view of the various adjudications on record, including the final decree for partition between the (admitted) co-owners (including the original plaintiff;since deceased). 2.7 That the judgment debtors can not be permitted to blow hot and cold. They having admitted that the plaintiff was their 'landlord', more particularly in their amended written statement, and thereafter having chosen to propound adverse possession against the plaintiff (since deceased), the defendants/judgment debtors (in the eyes of law) categorically admitted the title of the plaintiff(s)/decree holders. The judgment debtors having admitted that the subject matter of the suit (i.e. immoveable property/land) was located within an urban area to which the Slum Areas (Improvement and Clearance) Act 1956 as also the Delhi Rent Control Act 1958 were applicable (which was negatived on the ground that the defendants/judgment debtors subsequently chose to propound their title by prescription), are precluded from propounding that the ld. Civil Court had no jurisdiction to entertain the suit.
EX NO.73/14 Page 18 of 262.8. That it is denied that the final decree dated 23.09.1961 in suit No. 74/1947 (Ex. PW-1/GL-19) was without jurisdiction. The judgments dated 09.11.2009 and 08.08.14 have dealt with the issue in hand in great detail and concurrently concluded that the documents propounded by the defendants/judgment debtors themselves went to establish the (exclusive) title of the plaintiff(s)/decree holders in view of the said final decree passed in Suit No. 74/1947. Even otherwise, in the amended written statement in this action, the judgment debtors had propounded that they were tenants under the plaintiffs (since deceased). Therefore, the defendants/judgment debtors cannot be permitted to blow hot and cold and dispute the title of the plaintiffs (since deceased) by virtue of the embargoes set out in Section 116 of the Evidence Act.
2.9 That it is specifically denied that the suit for partition instituted way back in 1959 was not maintainable, be it for the reason alleged in para under reply or for any other reason whatsoever. It can not be lost sight of that the Legislature by Act No. 26 of 1966 had set up the Hon'ble High Court of Delhi (only w.e.f. 01.11.1966) and that prior to that day the jurisdiction to entertain any action of whatever nature and pecuniary value lay with the ld. Senior Subordinate Judge, at Delhi.
2.10 That it is also denied that a consent decree is not executable, as alleged in the para under reply, or even that the land subject matter of the decree dated 09.11.2009 being 'banjar quadim' the ld. civil court has no jurisdiction to try the present suit. The plea to this effect in the para under reply is manifestly contrary to the contents of the amended written statement filed on the present record by the present judgment debtors who had inter alia pleaded (at that stage) that the suit was barred [not only under the Slum Area (Improvement and Clearance) Act, but also by the Delhi Rent Control Act 1958]. Manifestly, the land (subject matter of this action/decree dated 09.11.09) even on the showings of the defendants/judgment debtors way back in 1970 (in fact in 1943) ceased to be agricultural land and in fact the documents produced on the present record (today) by the judgment debtors themselves show that this locality had ceased to be a rural locality since prior to 1947 inasmuch as the same had been included within the limits of a Notified Area/Municipality EX NO.73/14 Page 19 of 26 namely the "Notified Area Committee of Delhi Kishanganj". As such, the plea enumerated in the para under reply has merely to be stated to be rejected outright.
2.11 That the pleadings of the Suit No. 317 of 1959 produced as evidence (collectively) on this record by the judgment debtors are inconsequential inasmuch as the said pleadings had finally culminated in a decree for partition/declaration (as the case may be) being passed by a Division Bench of the Hon'ble Delhi High Court as far as back in 1967 (to be precise 09.03.1967) in RFA No. 93-D of 1960 titled as Shri Gauri Shankar Gupta Vs. Shri Hari Shankar Gupta & Another, copy of which is already on the file of the Ld. trial court as Ex. PW-1/GL-20. 2.12 This Court now exercising jurisdiction to execute the decree dated 09.11.2009 (as affirmed in appeal on 08.08.14) cannot go behind that decree passed way back in 1967 by a Division Bench of the Hon'ble High Court of Delhi in RFA No. 93-D of 1960.
2.13 That it is far-fetched to say that the judgment debtors have now learnt that the original file in Suit No. 47/1947 is lying in the record rooms of Hon'ble High Court of Allahabad. The pleas are irrelevant. The same are once again an attempt by the judgment debtors to over reach this Court. The records of Ld. trial court go to show and establish that the said records from the civil court at Agra were produced before this Court during the course of the trial on 05-06.03.1981. As such, it is too late in the day for the judgment debtors to propound that they now wish to call for that record and reopen the issue, as alleged. It cannot be lost sight of that the defendants/judgment debtors had made a similar prayer before the ld. first appellate court (before proceeding to dismiss the appeal on 08.08.14).
2.14 That it is far fetched to say that the decree dated 09.11.09 is a nullity in as much as the land subject matter of the decree dated 09.11.09 is government land, as alleged. This purported question [urged at this belated stage (of execution)] is beyond the permissible inquiry contemplated at this stage by this Court (being the Ld. executing court). It is therefore futile to propound what is alleged in the para under reply. The decree in hand, even if the same is erroneous on facts (as alleged) has EX NO.73/14 Page 20 of 26 necessarily to be executed against the judgment debtors. In case the subject matter of this decree is government land, the government would be too happy to protect its interest in the land in reference and the judgment debtors herein are not entitled to set up a new case at the stage of execution.
2.15 That it is denied that the Ld. civil court that has passed the decree in hand was not seized of the jurisdiction to do so by virtue of Section 185 of the Delhi Land Reforms Act, 1954. This issue was raised by the defendants/judgment debtors before the Ld. first appellate court and has already been negatived. Even otherwise, on the showings of the objectors themselves, the locality in which the land in reference in this decree is situated was urbanized even prior to 1947 (as is evident on the face of the documents propounded on this record by judgment debtors themselves). Therefore, by virtue of Section 1 of Delhi Land Reforms Act 1954, the said Act did not apply to any stage, at any point of time, to the property/land subject matter of this action. Even otherwise, the judgment debtors themselves having propounded before the Ld. trial court as well as ld. appellate court that the suit was barred by the Slum Areas Act, 1956 and/or the Delhi Rent Control Act, 1958, can not be permitted to propound what is NOW alleged [for the first time on this record (at the stage of execution)].
2.16 That the court fee payable on the final decree dated 08.08.14 has already been deposited with the office of this court. The objection enumerated in the para under reply is bereft of merit. 2.17 That it cannot be said by the judgment debtors that inasmuch as the suit is not properly valued for purposes of court fee and jurisdiction, the decree was erroneous and is not executable, as alleged. This issue has been raised earlier by the judgment debtors. This issue stands decided by the Ld. first appellate court in para 11 of the judgment dated 08.08.2014.
2.18 That it is patently fraudulent for the judgment debtors to propound that the property/land subject matter of these execution proceedings does not belong to the decree holders, as alleged. The plea to this effect has already been negatived in the decree in hand.
EX NO.73/14 Page 21 of 262.19 That the alleged construction existing at site was (illegally) carried out by the defendants/judgment debtors without the knowledge and consent of the plaintiff (since deceased). The same was carried out without municipal sanctions. It was all, always, illegal. As such the judgment debtors cannot be permitted to take any advantage of their own wrong(s).
2.20 That the site in reference has been clearly demarcated in the site plan, Ex. PW-1/HN-2. The dimensions of the site have been correctly given in the said plan (when read with original plaint). There is no dispute whatsoever on the identity of the land which is the subject matter of the decree under execution.
2.21 The order of the Hon'ble High Court passed in this cause as late as on 03.04.2014 clinches the issue in hand. Notice to all these judgment debtors who were performa respondents in the appeal was dispensed with by the Ld. Single Judge in RSA No. 206 of 2010 (decided by judgment dated 03.04.2014). Even otherwise, neither the judgment debtors nor their counsel is competent to raise this issue in hand. This Court on 29.08.14 has declined any notice being issued by the office of this Court to the judgment debtors, jointly as well as severally. 2.22 That the content of para 2 (vii)(f) of the objection petition are apparently contempt of the judgment dated 17.08.10 rendered by Ld. first appellate court in this cause, when the Ld. first appellate court had reversed the findings of the Ld. trial court on the issue of compensation (as awarded in the decree dated 09.11.09) and rejected the plea of the defendants/judgment debtors for the grant of compensation payable to them (as alleged) for the super structures (illegally) raised by them at site.
3. Arguments on objections have been heard. Material on record perused. Submissions considered.
4. The first objection taken by the JD is that the DH is not the owner of the suit property. It is alleged that the Agra Civil Court never determined the title but merely issued a compromised decree. In reply to the same it has been submitted by the DH that the title of the DH already stands established by the findings of the Ld. Trial Court, Ld. Appellate Court as well as three other connected cases which were filed by the EX NO.73/14 Page 22 of 26 DH. Moreover, in the amended W/S filed in 1997, as the plea of being a tenant was setup, the ownership of the plaintiff can not be denied. In this regard, the Ld. Trial Court in the judgment dated 9th November, 2009 has already stated at page no. 25 that the plaintiff is one of the co-owners of the suit property. At page 30, the plaintiff is held to be the owner. At page 36 the defendant was held to be an unauthorized occupant. At page 44 the plea of adverse possession raised by the defendant has also been rejected. Likewise, the Appellate Court in the judgment dated 08th August 2014 has held in para 15 at page 34 that Gauri Shankar Gupta was the owner of the property. The question of title has been again raised and decided in favour of the DH at page 39. As the question stands already decided by the Ld. Trial Court and also by the Ld. Appellate Court, this court being the court of execution does not find any reason to interfere with the findings given before or to re-agitate the question. Therefore, the objection stands decided against JD and in favour of the DH.
5. The JD has next alleged bar on jurisdiction of the Court as he has stated that in the khatouni of the land, same has been referred as gair mumkin and banjar quideem. It is been submitted that the jurisdiction of the court is barred by virtue of Delhi Land Reforms Act 1954 in view of the decision of the Hon'ble Supreme Court of India dated 23 rd March 2014 in Gaun Sabha Vs. Nathi as the land in question is Agricultural land. It is also stated that the decrees in suit no. 74 of 1947 and 317 of 1959 are compromise decrees without pecuniary jurisdiction. In reply, the DH has stated that the question of jurisdiction has already been raised and decided in the Trial Court. Moreover, the JD had taken a defence before the Trial Court that the land in question is covered in the Slum Area Act of 1956 and the Delhi Rent Control Act of 1958. These Acts are applicable to urbanised areas and not to agricultural land. DH also sbumitted that the land in question was covered in the notified area committee of Kishanganj Delhi and therefore, the Delhi Land Reforms Act 1954 was not applicable. The Ld. Trial Court has referred to the fact that the land bears municipal no. 535 Nai Basti. The Ld. Appellate Court has decided in para 14 at page 32 of the judgment that the Delhi Land EX NO.73/14 Page 23 of 26 Reforms Act is not applicable as the land was having municipal no. before 1st November, 1956. The DH has rightly relied upon various cases such as R.L. Kapoor vs. Dr. J.R. Chawla 1986 RLR 432, Nilima Gupta Vs. Yogesh Saroha 1956 (2009) DLT 129 and Harpal Singh Vs. Ashok Kumar 2015(1) AD (Delhi) 164 wherein it has been held that agricultural land has to be determined by the 'purpose' for which land is used such as agriculture, horticulture and animal husbandry. Land which is occupied by buildings, covered by unauthorized colonies or referred to as gair mumkin ceased to be land within the amending of Delhi Reforms Act 1954. As issue has already been decided by the Ld. Appellate Court and it is manifestly apparent from the record that the land is being used for residential purpose/buildings the Delhi Land Reforms Act cannot be held to be applicable to the suit land. Thus, the objection is decided in favour of the DH and against the JD.
6. The JD has alleged that the DH only stated in his cross examination that title deeds to the suit land were destroyed. It was als alleged that land is government land. DH has replied that the record of the Agra Civil Court was produced before the Ld. Trial Court on 5th March 1981. Moreover, the prayer for calling the record again was declined by the Ld. Appellate Court on 22.07.2014. The contentions were discussed at page 17 of judgment of the Ld. Appellate Court. Both the Trial Court as well as the Appellate Court have already held the DH to be the owner of the property and the existence or otherwise of the Civil Court record at Agra is no more rec integra/relevant to this case. Moreover, it is apparent from the bare perusal of the cross examination dated 19.11.2005 that the DH has stated about the destruction of record merely 'as per his knowledge' and not with any malafide intention. Therefore, the objection is decided against the JD and in favour of the DH.
7. JD alleged that the DH has not paid appropriate court fee. The issue of valuation and court fees has already been determined by the Ld. Appellate Court in para 11 at page 26 of its judgment and this court does not have any reason to differ in opinion. Moreover, the DH has already stated that court fees has been deposited. Therefore, the objection stands decided agaisnt the JD and in favour of the DH.
EX NO.73/14 Page 24 of 268. JD stated that structure was constructed by the JD upon the suit land. The DH countered that the same is illegal structure and JD cannot take benifit of his own wrong. JD also submitted that DH has not paid compensation of Rs. 4 lacs as directed by the Ld. Trial Court. The DH has countered that the direction for payment of compensation has been set aside in the Appellate Court judgment dated 17.08.2010. It is note worthy that the Hon'ble High Court of Delhi vide order dated 3rd April 2014 had set aside the judgment in first appeal dated 05.07.2010. However, the order dated 17.08.2010 pronounced in the appeal filed by the DH has attained finality and the directions for compensation have already been set aside. The JD has been held to be unauthorized occupant by the Ld. Trial Court and for the said reason the super structure is of no consequence. Therefore, the objection stand decided against JD and in favour of DH.
9. JD contended that the site plan filed by the DH is not correct and the suit land has not been clearly demarcated. DH has replied that the suit land comprised of area marked D in Ex. PW1/HN2. The site plan has been affirmed by the Ld. Trial Court at page 7 of its judgment wherein the dimensions of the suit property have been stated and also finds reference in the judgment of the Ld. Appellate Court at page 38. The site plan clearly shows the dimensions as well as demarcation of the suit land. Therefore, the objection stand decided in favour of the DH and against the JD.
10. JD has stated that other JDs are also be served with notice of this execution. DH has refuted the same. It is noteworthy that vide order dated 03.04.2004 the Hon'ble High Court of Delhi had dispensed with issuance of notice to the other parties who were proforma parties. Moreover, decree of the Ld. Appellate Court has merged with that of the Trial Court and as two years had not lapsed, no notice was required to be issued to the JDs. Hence, vide order dated 29.08.2014 this court itself had directed that the notice to the other JDs is dispensed with. Therefore, the objection stands decided in favour of the DH and against the JD.
11. Lastly, this court deems it appropriate to make reference to the case of Vasudev Dhanji Bhai Modi Vs. Raja Bhai Abdul Rehman AIR EX NO.73/14 Page 25 of 26 1970, Supreme Court 1475 wherein it has been categorically stated that the court executing the decree should not go behind the findings given by the Trial court by sitting in appeal or revision above it.
12. Therefore, for the reasons given above this court does not find any reason to interfere with the findings of the Ld. Trial court as well as the Ld. Appellate Court. At the same time, this court finds the objections filed by the JD to be without any merit and the same are hereby dismissed.
Announced in the Open Court (S. K. SETHI)
on 5th June 2015 ACJ/CCJ/ARC(W)/05.06.2015
EX NO.73/14 Page 26 of 26