Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of decision:10 September, 2018
+ RSA No.323/2015 & CMs No.18444/2015 (for stay) & 18096/2015
(u/O XLI R-27 CPC)
MANJULA & ORS ..... Appellants
Through: Mr. S.N. Sharma and Mr. Sharvan
Dev, Advs.
versus
KISHORE KUMAR & ANR ..... Respondents
Through: Mr. R.S. Kela, Mr. Bharat Gupta and
Mr.Sanjeev Bindal, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Regular Second Appeal under Section 100 of the Code of Civil
th
Procedure, 1908 (CPC) impugns the judgment and decree [dated 15 April,
2015 in RCA No.32/08 of the Court of the Additional District Judge-01
(North-East)] allowing the First Appeal under Section 96 of the CPC
preferred by the respondents/plaintiffs against the judgment and decree
nd
[dated 22 March, 2007 in Suit No.414/2006 of the Court of Civil Judge,
Karkardooma] of dismissal of the suit filed by the two
th
respondents/plaintiffs. Vide the same judgment dated 15 April, 2015, the
learned Additional District Judge also dismissed the First Appeal under
Section 96 of the CPC preferred by the appellants/defendants impugning
the findings of the Suit Court to the extent against the appellants though the
suit was dismissed. Consequently, the learned Additional District Judge has
passed a decree, in favour of the respondents/plaintiffs and against the
appellants/defendants, of recovery of possession of immovable property.
th
2. This appeal came up first before this Court on 4 September, 2015,
RSA No.323/2015 Page 1 of 13
when albeit without expressing any satisfaction that the appeal raises any
substantial question of law and without framing any substantial question of
law, notice thereof was ordered to be issued and the operation of the
impugned judgment and decree stayed. The respondent no.1/plaintiff
appeared in pursuance to the notice issued of the appeal. Though the
respondent no.1/plaintiff had also instituted the suit as attorney of the
respondent/plaintiff no.2 Moti Lal, but since in the memo of parties in this
appeal the respondent/plaintiff no.2 Moti Lal was not shown as to be served
through respondent no.1, the respondent no.1/plaintiff did not enter
appearance on behalf of the respondent/plaintiff no.2 Moti Lal. The parties
rd
were vide order dated 23 August, 2016 referred to mediation but which
remained unsuccessful. The appeal has thereafter been adjourned from time
to time. The appellants have also filed an application under Order XLI Rule
27 of the CPC. In none of the subsequent orders also, no satisfaction with
respect to the appeal entailing any substantial question of law has been
expressed and no substantial question of law has been framed till now.
Supreme Court in Vijay Arjun Bhagat Vs. Nana Laxman Tapkire 2018
SCC OnLine SC 518 and Surat Singh Vs. Siri Bhagwan (2018) 4 SCC 562
held that the procedure in respect of Second Appeal is that the Court, before
issuing notice thereof is required to frame substantial question of law and
without that the appeal cannot be entertained.
3. As such though the appeal is pending for the last three years, but
today the counsels have been heard to determine whether any substantial
question of law arises and in the course of the hearing, the Suit Court record
and the First Appellate Court record requisitioned in this Court have been
RSA No.323/2015 Page 2 of 13
examined.
4. The two respondents/plaintiffs instituted the suit, from which this
appeal arises, pleading (i) that the respondent/plaintiff no.1 Kishore Kumar,
th
on 17 July, 1984, has purchased property no.B-2/391, Nand Nagari, Delhi
– 110 093 from the respondent/plaintiff no.2 Moti Lal by way of
irrevocable General Power of Attorney (GPA), Agreement to Sell,
Affidavit, Receipt etc. and the respondent/plaintiff no.2 Moti Lal put the
respondent/plaintiff no.1 into vacant peaceful physical possession of the
property; (ii) that at the time of purchase the property comprised of two
room with store on the ground floor and a room, kitchen and bath and open
terrace on the first floor; (iii) that Shri Natha Lal, brother of the
respondent/plaintiff no.1, in or about December, 1985 came to Delhi from
Gujarat and expressed desire to settle down in Delhi and requested the
respondent/plaintiff no.1 to allow him to temporarily take shelter in the
aforesaid property; (iv) that since the respondent/plaintiff no.1 at that time
was residing in a rented accommodation, the respondent/plaintiff no.1
allowed his brother Natha Lal to temporarily occupy the property; (v) that
Natha Lal thereafter got his wife and children i.e. the appellants/defendants
also to Delhi and along with them started residing in the property; (vi) that
the respondent/plaintiff no.1, in or around March, 1987, shifted along with
his family to the subject property and Natha Lal and his family were still
permitted to continue residing on the ground floor of the property; (vii) the
appellants/defendants continued to reside in the ground floor of the property
even after the demise of Natha Lal; (viii) that the appellants/defendants,
inspite of repeated requests, failed to vacate the property; and, (ix) that the
RSA No.323/2015 Page 3 of 13
th
appellants/defendants, on 5 November, 1993 filed complaint under Section
145 of the Code of Criminal Procedure, 1973 (Cr.PC). Hence, the suit for
recovery of possession of the portion of the property in occupation of
appellants/defendants and for recovery of arrears of/and future mesne
profits/damages for use and occupation of the property.
5. The appellants/defendants contested the suit by filing a written
statement inter alia controverting the valuation of the suit for the purposes
of court fees and jurisdiction and pleading (i) that Natha Lal had purchased
the “flat” for consideration of Rs.22,000/- from the respondent/plaintiff
rd
no.2 Moti Lal vide Sale Certificate/Agreement and Receipt dated 3
rd
January, 1980 and since 3 January, 1980 Natha Lal with his family
members i.e. the appellants/defendants remained in possession of the said
flat; (ii) on demise of Natha Lal, the appellants/defendants as his heirs
became the owners of the property; (iii) that the respondent/plaintiff no.1
th
took possession of one room illegally and forcibly on 8 July, 1993; (iv)
that the respondent/plaintiff no.1 is a bad element of the locality; (v)
th
denying that the respondent/plaintiff no.2 Moti Lal on 17 July, 1984 had
sold the property to the respondent/plaintiff no.1; and, (vi) that all
constructions in the property had been carried out by Natha Lal.
6. Thought the respondents/plaintiffs are found to have filed a
replication, but need to refer thereto is not felt.
7. On the pleadings aforesaid of the parties, the following issues were
nd th
framed in the suit on 2 June, 1999 and 27 September, 2005:-
“1. Whether the suit is valued properly for the
purpose of Court Fees and jurisdiction as the
RSA No.323/2015 Page 4 of 13
market value of the suit property? OPD
2. Whether the defendant had purchased the flat in
question from Sh. Moti Lal for a valuable
consideration? OPD
3. Whether the plaintiff is entitled for the decree of
injunction as prayed for? OPP
4. Whether the plaintiff is entitled for the relief of
possession as prayed for? OPP
5. Relief.”
8. The Suit Court, on the basis of evidence led,
found/observed/reasoned/held (i) that no evidence was adduced on issue
no.1 and no error was found in the valuation of the suit for the purpose of
court fees and jurisdiction; (ii) that the appellants/defendants had failed to
prove the documents of purchase of property by their predecessor Natha Lal
and it thus could not be held that Natha Lal had purchased the property;
accordingly issue no.2 was decided in favour of the respondents/plaintiffs
and against the appellants/defendants; (iii) that it was within the knowledge
of the respondents/plaintiffs prior to the institution of the suit that the
appellants/defendants were also having some documents through which
they were claiming ownership right over the property; however the
respondents/plaintiffs did not take any steps to seek declaration of their
ownership right over the property or for cancellation of the documents
claimed by the appellants/defendants; (iv) that neither party had examined
the respondent/plaintiff no.2 Moti Lal; and, (v) because the
respondents/plaintiffs had not asked for declaration of their ownership over
the property inspite of a shadow being cast over the title of the
respondents/plaintiffs, the respondents/plaintiffs were not entitled to any
RSA No.323/2015 Page 5 of 13
relief.
9. As aforesaid, both preferred First Appeals against the judgment of
the Suit Court.
10. The First Appellate Court has allowed the appeal of the
respondents/plaintiffs and dismissed the appeal of the
appellants/defendants, finding/reasoning (i) that during the pendency of the
First Appeals, the application of the respondents/plaintiffs under Order XLI
Rule 27 of the CPC to examine the respondent/plaintiff no.2 Moti Lal was
th
allowed vide order dated 12 March, 2013 and in pursuance thereto, the
respondent/plaintiff no.2 Moti Lal was examined by the First Appellate
th
Court on 19 December, 2014; (ii) that the respondent/plaintiff no.2 Moti
Lal deposed that he had sold the property to the respondent/plaintiff no.1 by
th
way of GPA, Agreement to Sell etc. on 17 July, 1984 and denied having
rd
sold the property to Natha Lal on 3 January, 1980 through Sale Certificate
and Receipt; (iii) that specimen thumb impressions of Moti Lal were
obtained and the same along with the documents claimed by the respective
parties were sent to the Finger Print Bureau; (iv) inconsistencies pointed out
by the appellants/defendants in the deposition of the respondent/plaintiff
no.2 Moti Lal were minor in nature and it could not be lost sight of that he
was appearing as a witness after more than thirty years of execution of the
documents in favour of the respondent/plaintiff no.1; (v) that the
respondent/plaintiff no.2 Moti Lal denied his thumb impressions on the
st
documents in favour of Natha Lal; (vi) that notice to show cause dated 1
January, 1993 of Municipal Corporation of Delhi (MCD) claiming licence
th
fee from Natha Lal was of no avail; (vii) that the certificate dated 19
RSA No.323/2015 Page 6 of 13
January, 1993 giving no objection to Natha Lal to obtain electricity
connection in the property was also of no avail; neither of the said
documents indicated any ownership or intent to sell but only confirmed
occupation of Natha Lal of the property; (viii) similarly, deposit by Natha
Lal of licence fee with respect to the property also did not confer any rights
in Natha Lal in the property; (ix) that the appellants/defendants, in cross-
examination of the respondent/plaintiff no.2 Moti Lal also did not suggest
that possession was delivered by the respondent/plaintiff no.2 Moti Lal to
rd
Natha Lal on 3 January, 1980; (x) once the respondent/plaintiff no.2 Moti
Lal had himself appeared in witness box and denied execution of any
documents in favour of Natha Lal, the statements of witnesses of the
appellants/defendants could not be relied upon; (xi) that the purported Sale
Certificate in favour of Natha Lal was prepared on a stamp paper purchased
for GPA; (xii) that the antecedents of the respondent/plaintiff no.1 as a bad
element were irrelevant for the purposes of the Civil Court; (xiii) finding of
the Suit Court that the respondents/plaintiffs were required to sue for
declaration of their title and/or for declaration of the document in favour of
the appellants/defendants/their predecessors as null and void, was not
correct; and, (xiv) in the absence of the same, the suit for recovery of
possession was maintainable and there was no need for the
respondents/plaintiffs to sue for declaration. Accordingly, though a decree
for possession was passed in favour of the respondents/plaintiffs but the
claim of the respondents/plaintiffs for mesne profits was declined.
11. As aforesaid, the appellant/defendants are enjoying stay of execution
granted, without imposing any condition on the appellants/defendants for
RSA No.323/2015 Page 7 of 13
the last three years.
12. Though the challenge in this appeal is to the judgment allowing the
First Appeal of the respondents/plaintiffs as well as to the judgment of
dismissal of First Appeal of the appellants/defendants, but composite appeal
has been filed. The counsel for the appellants/defendants however explains
that he had filed separate appeal but which was ordered to be dismissed as
withdrawn observing that the appellants/defendants can in this appeal
challenge the judgements in both the First Appeals.
13. The counsel for the appellants/defendants has contended, that while
Agreement to Sell/GPA etc. set up by the respondent/plaintiff no.2 Moti Lal
in favour of the respondent/plaintiff no.1 is of 1984, the Agreement to
Sell/Sale Certificate set up by the appellants/defendants in favour of their
predecessor, also executed by respondent/plaintiff no.2 Moti Lal, is of a
date prior thereto i.e. of the year 1980. On the basis thereof it is sought to
be contended that even if the documents in favour of the
respondents/plaintiffs no.1 are to be accepted, the documents in favour of
the predecessor of the appellants/defendants are of a date prior to the
documents in favour of respondent/plaintiff no.1. It is also contended that
the finger print expert has reported inconsistency in the thumb impressions
of the respondent/plaintiff no.2 Motil Lal and the thumb impression
purportedly of the respondent/plaintiff no.2 Moti Lal on the Agreement to
Sell/GPA etc. in favour of the respondent/plaintiff no.1.
14. I have however enquired from the counsel for the
appellants/defendants, that once the appellants/defendants admit the title of
RSA No.323/2015 Page 8 of 13
the respondent/plaintiff no.2 Moti Lal, and the respondent/plaintiff no.2
Moti Lal himself having sued for recovery of possession albeit through his
attorney respondent/plaintiff no.1 and the respondent/plaintiff no.2 Moti Lal
while deposing before the First Appellate Court having admitted
appointment of the respondent/plaintiff no.1 as his attorney and having
further admitted executing Agreement to Sell/GPA etc. in favour of the
respondent/plaintiff no.1, whether not the admitted title is better than the
claim of the appellants/defendants on the basis of Agreement to Sell etc.
and which in Suraj Lamp & Industries P. Ltd. Vs. State of Haryana
(2009) 7 SCC 363 and (2012) 1 SCC 656 has been held to be not
constituting documents of title to immovable property.
15. The counsel for the appellants/defendants, while not disputing that
the appellants/defendants are not challenging the title of
respondent/plaintiff no.2 Moti Lal, contends that the documents claimed by
the respondent/plaintiff no.1 to have been executed by the
respondent/plaintiff no.2 Moti Lal are not lawful owing to variance in the
thumb impressions.
16. However I reiterate, that when the admitted owner was suing for
possession even if through attorney, the appellants/defendants who are
claiming to be mere agreement purchaser from the respondent/plaintiff no.2
Moti Lal, cannot contend otherwise.
17. Though the counsel for the appellants/defendants has not argued, but
since the Agreement to Sell in favour of the predecessor of the
appellants/defendants is of a date prior to the Agreement to Sell in favour of
RSA No.323/2015 Page 9 of 13
the respondent/plaintiff no.1 and in pursuance to the Agreement to Sell in
favour of the predecessor of the appellants/defendants, possession of the
property is claimed to have been delivered and which possession would be
protected by Section 53A of the Transfer of Property Act, 1882, I have
enquired from the counsel for the appellants/defendants, whether there is
any document to show possession of the appellants/defendants of the
rd th
property since 3 January, 1980 or any time prior to 17 July, 1984.
18. The counsel for the appellants/defendants states that delivery of
rd
possession is either recorded in the Agreement to Sell, Receipt etc. dated 3
January, 1980 in favour of predecessor of the appellants/defendants or there
are documents to the effect that the appellants/defendants have paid licence
fee to the MCD with respect to the subject property since the year 1976.
19. As far as the first of the aforesaid set of documents are concerned,
once the respondent/plaintiff no.2 Moti Lal has denied execution of the
rd
documents dated 3 January, 1980, no credence thereto can be given for
determining the possession of the predecessor of the appellants/defendants
with effect from the said date. The remedy if any of the
appellants/defendants, on denial by the respondent/plaintiff no.2 Moti Lal
of the transaction with the predecessor of the appellants/defendants, was to
sue for specific performance or for such other relief to which the
appellants/defendants may have been entitled to.
20. As far as the second set of documents aforesaid are concerned, what
transpires is that the payment w.e.f. 1976 have been made only in the year
rd
1993 and the same also thus does not prove possession since 3 January,
RSA No.323/2015 Page 10 of 13
1980 or of any time prior to the Agreement to Sell in favour of the
respondent/plaintiff no.1, affirmed by the respondent/plaintiff no.2 Moti
Lal.
21. In my opinion, the aforesaid is enough to sustain the order of the
First Appellate Court and no substantial question of law is found to arise in
this appeal.
22. The counsel for the appellants/defendants at this stage requires the
following to be recorded:-
(a) that the appellants/defendants, in the memorandum of appeal,
have proposed the substantial questions of law;
th
(b) that the Agreement to Sell dated 17 July, 1984 set up by the
respondent/plaintiff no.1 was only of malba and not of land;
(c) that the respondent/plaintiff no.2 Moti Lal cannot be permitted
to resile from the transaction with the predecessor of the
appellants/defendants and that is why the report of the finger
print expert becomes important; and,
(d) that the appellants/defendants in this appeal also have applied
under Order XLI Rule 27 of the CPC for fresh examination of
the respondent/plaintiff no.2 Moti Lal.
23. The substantial questions of law proposed in the memorandum of
appeal were perused before hearing the counsels and not finding the same
to be substantial questions of law and not finding the same to be arising
from this appeal, the hearing had proceeded. Merely because the
RSA No.323/2015 Page 11 of 13
appellants/defendants in the memorandum of Second Appeal has proposed
substantial questions of law, does not fulfil the requirement of law and it is
the Court which has to frame the substantial questions of law after hearing
the appellant.
24. The Agreement to Sell executed by the respondent/plaintiff no.2
Moti Lal in favour of the respondent/plaintiff no.1 has to be interpreted in
the light of the evidence recorded by the First Appellate Court of the
respondent/plaintiff no.2 Moti Lal and the First Appellate Court has
correctly concluded that the cross-examination by the appellants/defendants
of the respondent/plaintiff no.2 Moti Lal could not contradict his testimony
of sale in favour of the respondent/plaintiff no.1. It also cannot be lost sight
of, that in vernacular, a property with old construction or kachcha
construction was often referred to as malba. I may also mention that the
appellants/defendants did not cross-examine the respondent/plaintiff no.2
Moti Lal in this respect.
25. The need to again summon the respondent/plaintiff no.2 Moti Lal is
not felt as the appellants/defendants have had full opportunity to cross-
examine him.
26. No merit thus found in this Second Appeal. It is not found to entail
any substantial question of law.
27. Dismissed.
28. The appellants/defendants have enjoyed stay of execution for three
years and while finally deciding this appeal, it is required to balance the
equities.
RSA No.323/2015 Page 12 of 13
29. The respondents/plaintiffs had claimed mesne profits @ Rs.500/- per
month and which is found to be bare minimum which an immovable
property can fetch.
30. It is thus further ordered that the appellants/defendants shall
compensate the respondent/plaintiff no.1 for the interim stay enjoyed, @
Rs.500/- per month for the period for which the execution of the impugned
th
judgment and decree remained stayed i.e. from 4 September, 2015 till this
date and which amount shall also be recoverable as a decree.
31. However no costs.
Decree sheet be prepared.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 10, 2018
‘pp’..
RSA No.323/2015 Page 13 of 13