Delhi High Court
Ranjeet Singh vs Nanki Devi And Ors on 12 July, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 12th July, 2018
+ RSA 48/2017 & CM No.4859/2017 (for stay)
RANJEET SINGH ..... Appellant
Through: Mr. Abhinav Bajaj, Adv.
Versus
NANKI DEVI AND ORS ..... Respondents
Through: Mr. Rajendra Sahu, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Regular Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 (CPC) impugns the judgment and decree [dated 19 th
September, 2016 in RCA No.08/2016 (new RCA No.661445/2016) of the
Court of Additional District Judge (ADJ)-16, District Central, Tis Hazari
Courts, Delhi] of dismissal of the First Appeal under Section 96 of the CPC
filed by the appellant / defendant against the judgment and decree [dated 4th
October, 2013 in Suit No.438/2007 of the Court of Civil Judge, District
West, Tis Hazari Courts, Delhi] in favour of the predecessor of the
respondents / plaintiffs and against the appellants / defendants, declaring the
predecessor of the respondent / plaintiff to be having equal share as the
appellant in property No. N-52, Andha Mughal, Pratap Nagar, Delhi and
further declaring that the sale transaction by the appellant / defendant in
favour of the respondent no.2 / defendant Rajpal @ Pappu, on the basis of
mutation carried out by the respondent no.3 / defendant Land and
Development Office (L&DO) in respect of the property was illegal and null
and void and further holding the predecessor of the respondent no.1/plaintiff
RSA No.48/2017 Page 1 of 13
to be entitled to get physical possession of the property to the same extent as
the other heirs of Ganga Ram.
2. The appeal came up first before this Court on 7th February, 2017
when, without indicating the substantial question of law, if any arising,
notice thereof was ordered to be issued and the Trial Court record
requisitioned. Though the respondents / plaintiffs were served but the
respondent no.1 / plaintiff has not appeared and today only the counsel for
the respondent / defendant no.3 L&DO appears.
3. The counsel for the appellant / defendant has been heard on admission
of the Second Appeal, which can be entertained only on a substantial
question of law. The Trial Court record requisitioned has also been perused.
4. The deceased respondent no.1/ plaintiff Faquir Singh instituted the suit
from which this present appeal arises, pleading (i) that Ganga Ram who was
the owner in possession of the property aforesaid, lease of land whereunder
had been granted by the respondent / defendant no.3 L&DO; (ii) that the said
Ganga Ram died intestate leaving behind the respondent no.1 Faquir Singh,
Harbans Lal and Jai Ram as his sons and two daughters viz. Kaki Kaur and
Prem Kaur; wife of Ganga Ram had pre-deceased him; (iii) that Jai Ram
applied to the respondent / defendant no.3 L&DO for mutation of the
leasehold rights in the land underneath the property in his sole name and
which was objected to by the other legal heirs of Ganga Ram including the
respondent no.1 / plaintiff; (iv) that the respondent / defendant no.3 L&DO
advised the respondent no.1 / plaintiff and other legal heirs to approach the
Court for getting Succession Certificate or to enter into a Family Settlement;
however nobody proceeded with the same and the property remained
recorded in the name of Ganga Ram; (v) that later, it came to the knowledge
RSA No.48/2017 Page 2 of 13
of the respondent no.1 / plaintiff, that the appellant / defendant Ranjeet
Singh, being the son of Jai Ram, had sold the property to respondent no.2 /
defendant Rajpal, in connivance with the respondent / defendant no.3
L&DO; and, (vi) that the appellant / defendant was not the exclusive owner
of the property, to convey exclusive title to the property, to respondent no.2
/ defendant Rajpal and the transfer of the property in the sole name of
appellant / defendant was illegal and arbitrary. Reliefs, of (a) declaration that
the sale transaction by the appellant / defendant in favour of the respondent
no.2 / defendant Rajpal was illegal; and, (b) declaration that the respondent
no.1 / plaintiff had a right, title and share in the property, with direction to
handover physical possession of the property/share claimed in the suit.
5. The appellant / defendant contested the suit by filing a written
statement taking the technical pleas of limitation and non-joinder and
pleading, (i) that the leasehold rights in the land underneath the property
were recorded in the name of Ganga Ram; (ii) that after the death of Ganga
Ram, the said leasehold rights were substituted in the name of Jai Ram; (iii)
that all the other heirs of Ganga Ram knew from the very first day that vide
memo dated 1st November, 1988 of Assistant Settlement Commissioner,
Government of India, Ministry of Urban Development, L&DO, the property
was transferred in the name of Jai Ram; (iv) that after the death of Jai Ram,
the property was transferred in the name of appellant / defendant vide
Memorandum dated 24th June, 2005 / 13th July, 2005 of L&DO; (v) that the
property having been so mutated in the sole name of appellant / defendant,
no other person had any right, title, claim, interest or share in the property;
(vi) that none of the other heirs of Ganga Ram objected to the application of
Jai Ram to respondent / defendant no.3 L&DO for mutation of the property
RSA No.48/2017 Page 3 of 13
in his exclusive name and the respondent no.1 / plaintiff had no rights in the
property; and, (vii) that the appellant / defendant, being the exclusive owner
of the property, had sold the same to the respondent no.2 / defendant Rajpal.
6. No written statement by respondent no.2 / defendant Rajpal is found
on the Trial Court record and the counsel for the appellant / defendant
confirms that no written statement was filed by the respondent no.2 /
defendant Rajpal and states that the respondent no.2 / defendant Rajpal was
proceeded against ex parte in the suit, though is present in the Court today.
7. Respondent / defendant no.3 L&DO filed a written statement, pleading
(a) that land underneath the property was leased out to Ganga Ram; (b) after
the death of Ganga Ram, one of his sons i.e. Jai Ram applied for substitution
on the basis of Death Certificate and unregistered Will executed by Ganga
Ram in favour of Jai Ram; (c) that while application of Jai Ram for mutation
in his name was pending, a letter dated 3rd November, 1976 from respondent
no.1 / plaintiff, Prem Kaur, Kaki Devi and Harbans Lal was received
intimating that Ganga Ram had not left any Will in exclusive favour of Jai
Ram; (d) that Jai Ram was accordingly informed that mutation in his
exclusive favour could not be carried out till the order of a Court was
obtained by him; (e) that thereafter Jai Ram again applied for substitution on
6th July, 1988, on the basis of No Objection Affidavits of respondent no.1 /
plaintiff, Prem Kaur, Harbans Lal and Kaki Devi and stated that he had
settled with his brothers and sisters and further submitted No Objection
Affidavits of his brothers and sisters and on the basis whereof mutation in
exclusive favour of Jai Ram was carried out; (f) that after the death of Jai
Ram, the appellant / defendant as his son applied for substitution along with
Relinquishment Deed of other natural heirs of Jai Ram in favour of appellant
RSA No.48/2017 Page 4 of 13
/ defendant and accordingly mutation in favour of appellant / defendant was
carried out; and, (g) that the property thus stood in the records of respondent
/defendant no.3 L&DO in the name of appellant / defendant.
8. In the aforesaid state of pleadings, the following issues were framed in
the suit on 31st August, 2010:
"1. Whether the plaintiff is entitled to declaration that the sale transaction is
illegal and void ab initio as prayed for? OPP.
2. Whether the plaintiff is entitled to declaration with respect to right and
title in share of plaintiff in joint ancestral property bearing no.N-52,
Andha Mugal, Pratap Nagar, Delhi as prayed for? OPP.
3. Whether the plaintiff is entitled to possession of the share, if any falls in
his favour in accordance with issue no.2? OPP.
4. Whether the suit is within limitation? OPP.
5. Whether suit of the plaintiff is bad for non-joinder and of necessary
parties? OPD1.
6. Whether plaintiff has not come to court with clean hands? OPD1.
7. Relief."
9. The Suit Court decreed the suit as aforesaid, in favour of the
respondent no.1 / plaintiff and against the appellant / defendant and the
respondent no.2 / defendant, finding / holding / reasoning, (a) that the
appellant / defendant alone appeared in his evidence and filed an affidavit by
way of examination-in-chief but in cross-examination stated that he was not
aware of the contents of the affidavit of examination-in-chief; (b) that the
respondent / defendant no.3 L&DO examined one witness to prove the
Conveyance Deed of freehold rights in land in favour of Ganga Ram, the
letter of Jai Ram requesting for mutation in his name on the basis of no
objection of other heirs, the affidavit submitted by Jai Ram and the letter
dated 27th August, 1976 of Jai Ram to respondent / defendant no.3 L&DO
RSA No.48/2017 Page 5 of 13
requesting for mutation in his name on the basis of Will; (c) that the witness
of the respondent / defendant no.3 L&DO, in his cross-examination, stated
that no Relinquishment Deeds of other heirs of Ganga Ram were called for,
for mutating the property in the exclusive name of Jai Ram, since the No
Objection Certificates were attested by Magistrate of First Class; (d) that it
was not in dispute that the property was owned by Ganga Ram and that the
respondent no.1 / plaintiff was one of the heirs of Ganga Ram; (e) that it was
not in dispute that when Jai Ram applied to respondent / defendant no.3
L&DO for mutation in his exclusive favour on the basis of Will of Ganga
Ram, other heirs had objected thereto; (f) that admittedly Jai Ram
subsequently applied for mutation in his exclusive favour on the basis of No
Objection Certificates; (g) that the No Objection Certificates of other heirs of
Ganga Ram had not been produced in the Court, least proved; (h) that the
appellant / defendant also had avoided mentioning in his evidence about the
No Objection Affidavits allegedly executed by other heirs of Ganga Ram; (i)
that there was thus nothing to justify the mutation of the property in the
records of respondent / defendant no.3 L&DO from the name of Ganga Ram
to the exclusive name of Jai Ram; (j) that since the appellant / defendant was
not the exclusive owner of the property, he had no right to transfer the
property in the exclusive name of respondent no.2 / defendant Rajpal and the
sale transaction by appellant / defendant in favour of respondent no.2 /
defendant Rajpal was null and void; (k) that the respondent no.1 / plaintiff,
as one of the owners of the property, was entitled to get physical possession
thereof; (l) that the respondent no.1 / plaintiff had proved that he came to
know of the mutation, only upon sale by the appellant / defendant in favour
of respondent no.2 / defendant Rajpal and the suit was thus within time; and,
RSA No.48/2017 Page 6 of 13
(m) that the appellant / defendant was unable to prove that the suit was bad
for non-joinder or that the respondent no.1 / plaintiff had not approached the
Court with clean hands.
10. The First Appellate Court in its judgment has noted the factum of
respondent no.2 / defendant Rajpal having been proceeded ex parte in the
suit on 27th May, 2009 and that the only contention of the appellant /
defendant in the First Appeal was, that the Suit Court had not correctly
appreciated the facts and the evidence.
11. The First Appellate Court, with respect to the issue of limitation, held
that the respondent no.1 / plaintiff had shown that the suit was filed within
the period prescribed in Article 58 of the Schedule to the Limitation Act,
1963 and the appellant / defendant had not led any evidence to show that the
respondent no.1 / plaintiff knew about the mutation by respondent /
defendant no.3 L&DO in favour of Jai Ram at any earlier point of time.
12. The First Appellate Court, with respect to the contention of the
counsel for the appellant / defendant, that the respondent no.1 / plaintiff had
not sought declaration qua mutation in the name of Jai Ram and that without
seeking such declaration, declaration qua sale by appellant / defendant in
favour of respondent no.2 Rajpal could not be claimed, held that the same
was without any merits because the appellant / defendant had failed to prove
any knowledge by the respondent no.1 / plaintiff of mutation in favour of Jai
Ram; rather, the appellant / defendant in the written statement had admitted
that the respondent no.1 / plaintiff and other heirs of Ganga Ram had
opposed the mutation claimed by Jai Ram on the basis of Will of Ganga Ram
and which application was not allowed. The First Appellate Court further
held that the appellant / defendant, in cross-examination of the respondent
RSA No.48/2017 Page 7 of 13
no.1 / plaintiff, had been unable to shake the case of the respondent no.1 /
plaintiff in the plaint.
13. The counsel for the appellant / defendant has argued, (i) that the two
Courts did not consider that the suit for declaration simpliciter, without
seeking cancellation of mutation in favour of Jai Ram of the year 1988, was
bad; and, (ii) that the two Courts have not considered the documents on the
basis of which mutation in favour of Jai Ram was carried out. It is argued
that the said mutation is on the basis of Will of Ganga Ram in favour of Jai
Ram.
14. I however asked the counsel for the appellant / defendant, whether the
Will was proved.
15. The counsel for the appellant / defendant replied, that since mutation
had already been carried out in favour of Jai Ram, Will was not required to
be proved.
16. However, the falsity of the aforesaid argument is borne out on perusal
of the Trial Court record, which discloses as aforesaid that it was not the case
of the appellant / defendant in the written statement that mutation in his
favour was on the basis of the Will. Rather, it was admitted in the written
statement that the mutation applied for on the basis of the Will was given up.
It is not understandable as to on what basis the counsel for the appellant /
defendant is today arguing that the mutation was on the basis of Will. The
appellant / defendant, in the second application for mutation in his exclusive
name and in pursuance to which mutation in his name was carried out, relied
only on the No Objection Affidavits of the other heirs and not on the Will.
17. The counsel for the appellant / defendant has also argued that the
mutation in the exclusive name of Jai Ram in the records of the respondent /
RSA No.48/2017 Page 8 of 13
defendant no.3 L&DO made Jai Ram the sole and absolute owner of the
property after the demise of Ganga Ram. I have however asked the counsel
for the appellant / defendant, whether mutation entries can vest title.
18. Though the counsel for the appellant / defendant has not ventured a
reply, but I may mention that the consistent view of the Courts in Mohinder
Singh Verma Vs. J.P.S. Verma (2014) AIR DLT 432, Sehdev Singh Verma
Vs. J.P.S. Verma AIR 2016 Del 1 (DB), Hari Ram Gupta Vs. Madan Lal
Gupta (2008) 155 DLT 155 (DB) and Municipal Corporation, Gwalior Vs.
Puran Singh (2015) 5 SCC 725 holds that mutation entries of L&DO and /
or municipality do not create title. Thus, the appellant / defendant, on the
basis of the said mutation entries, did not acquire any exclusive ownership
rights in the property and the property remained the property of Ganga Ram
and in which the respondent no.1 / plaintiff, as an heir of Ganga Ram,
inherited a share on the demise of Ganga Ram.
19. There is another aspect of the matter. The appellant / defendant, after
admitted sale of the property in favour of the respondent no.2 / defendant
Rajpal, was not left with any right, title or interest in the property and the
property vested in respondent no.2 / defendant Rajpal. The respondent no.2 /
defendant Rajpal however chose not to contest the suit and was proceeded
against ex parte. The respondent no.2 / defendant Rajpal is not aggrieved of
the judgment of the Suit Court divesting him from the title which he had
acquired from the appellant / defendant. I have thus asked the counsel for
the appellant / defendant as to what is the interest of the appellant /
defendant, in the property for the appellant / defendant alone to have
preferred the First Appeal and having preferred this Second Appeal.
RSA No.48/2017 Page 9 of 13
20. The counsel for the appellant / defendant states that the appellant /
defendant preferred the appeals because the judgment is against him.
21. Even though the judgment of the Suit Court is against the appellant /
defendant but since the judgment pertains to title in immovable property and
which the appellant now no longer possesses or holds, the locus of the
appellant / defendant to pursue this appeal is not understandable. Rather, the
consistent conduct of the appellant / defendant is found to be of fraud and of
taking false stand in the legal proceedings. The plea of sale in favour of
respondent no.2 / defendant Rajpal appears to be a part of the said fraud
practiced by the appellant / defendant in conduct of the legal proceedings
from which this appeal arises.
22. The counsel for the appellant / defendant, during dictation interrupts
me to also contend that the finding of the Suit Court, of the affidavits of no
objection of other heirs of Ganga Ram having not been placed on record, is
wrong. Moreover, upon being asked to point out the said affidavits of no
objection in the trial court record, attention is drawn to page 325 thereof
bearing Ex.DW1/4 but which is a photocopy of the affidavit of Jai Ram. On
further enquiry, it is stated that affidavit of respondent no.1 / plaintiff is at
page 327 of the Trial Court record. However, the said affidavit does not bear
any exhibit mark. The counsel for the appellant / defendant however states
that Ex.DW1/4 is with respect to the affidavit of Jai Ram as well as affidavit
of the other legal heirs of Ganga Ram and attention in this regard is drawn to
the affidavit by way of examination-in-chief of the witnesses of the
respondent / defendant no.3 L&DO at page 123 of the Trial Court record,
para no.7 of which affidavit is as under:
RSA No.48/2017 Page 10 of 13
"7. That the property was substituted in favour of Shri Jai Ram after he
submitted no objection affidavits of all the legal heirs of the late Shri Ganga
Ram is Ex.DW1/4."
and to the examination-in-chief recorded of the said witness on 5th February,
2013 as under:
"Suit No.438/2007
D3W1 Sh. V.K. Rajan S/o Sh. V.K. Kuttappan, Deputy Land and
Development Officer, L&DO, Nirman Bhawan, New Delhi.
On S.A.
I hereby tender my evidence by way of affidavit Ex.D3W1/X bearing my
signature at point 'A & B'. I rely on documents exhibited as Ex.D3W1/1 to
D3W 1/5. The documents referred to in my affidavit as Ex DW1/1 to Ex DW
1/5 are now exhibited as Ex D3W1/1 to D3W1/5. All the documents original
seen and returned. The averments made in my affidavit are true and correct.
XXXXXX deferred at the request of Ld. Counsel for plaintiff.
RO&AC
Sd/-
(Richa Gusain Solanki)
Civil Judge (West)
THC, Delhi/05.02.2013"
The counsel for the appellant / defendant however admits that the affidavits
of no objection of none of the other heirs of Ganga Ram are on record.
23. Ordinarily, when a bunch of documents is collectively exhibited and /
or admitted into evidence in the Trial Courts, against the exhibit mark, word
"COLLY" in brackets is written. No such word is found to be written
against Ex.DW1/4 put on the affidavit of Jai Ram. From the fact that "No
Objection Affidavits" of the other heirs of Ganga Ram, though mentioned in
para no.7 reproduced above, are not on record, it is evident that Ex.DW1/4
was not put collectively on affidavit of Jai Ram and on affidavit of other
heirs of Ganga Ram or on affidavit of respondent no.1 / plaintiff.
RSA No.48/2017 Page 11 of 13
24. Moreover, there is no evidence, of signatures on the affidavit
purported to be of respondent no.1 / plaintiff, having been identified by any
person whatsoever. Admittedly, the counsel for the appellant / defendant, in
cross-examination of the respondent no.1 / plaintiff did not confront the
respondent no.1 / plaintiff with the purported affidavit of respondent no.1 /
plaintiff. Though the counsel for the appellant / defendant has argued, that
the affidavit was put by the counsel for the respondent / defendant no.3
L&DO in cross-examination of the respondent no.1 / plaintiff, but a perusal
of the cross-examination of respondent no.1 / plaintiff by respondent /
defendant no.3 L&DO also does not show so. By no canon of the law
relating to evidence, it can be said that No Objection Affidavit of respondent
no.1 / plaintiff has been proved.
25. Once it is found that the mutation got effected by Jai Ram in his
exclusive name was not in accordance with law and without the respondent /
defendant no.3 L&DO following the requisite procedure, and evidently in
collusion with Jai Ram, no error can be found in the consistent judgments of
the Courts below. The conduct of the appellant / defendant, of first seeking
mutation in his exclusive name on the basis of Will of Ganga Ram and upon
failing in the said endeavor, applying for mutation on the basis of No
Objection Certificates of other heirs of Ganga Ram and which No Objection
Certificates have not been proved and thereafter of sale of property to
respondent no.2 / defendant Rajpal who is not aggrieved from being divested
of exclusive title, is highly suspicious.
26. In fact, as the aforesaid would show, no substantial question of law
also arises for adjudication, for the Second Appeal to be entertained. Rather,
the appellant / defendant is found to be guilty as aforesaid, of making false
RSA No.48/2017 Page 12 of 13
pleadings, affirming false affidavit and practising fraud in the course of legal
proceedings. The appellant / defendant through counsel is also found to have
made arguments contrary to record before this Court.
27. I have toyed with the idea of directing prosecution of the appellant /
defendant in exercise of powers under Section 340 Cr.P.C., for the offences
of which he is prima facie found guilty.
28. The counsel for the appellant / defendant, under instructions from the
appellant / defendant present in Court states that the powers under Section
340 Cr.P.C. be not exercised and the appellant, in order to atone his sins, will
deposit costs of Rs.1,50,000/- in whosesoever favour it may be directed by
this Court.
29. The appellant / defendant, on enquiry states that he is willing to
furnish an undertaking in this regard to this Court.
30. The appellant / defendant undertakes to this Court to, on or before 28 th
July, 2018, deposit costs of Rs.1,50,000/- with the Delhi High Court
Advocates Welfare Trust.
31. The undertaking of the appellant / defendant is accepted and the
appellant / defendant is bound thereby and cautioned of the consequences of
breach of undertaking given to this Court.
32. The appeal is dismissed.
Decree sheet be drawn up.
28. List 9th August, 2018, only for the appellant / defendant to show proof
of deposit of cost of Rs.1,50,000/-.
RAJIV SAHAI ENDLAW, J.
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