K.L. Anand vs Rehmatullah And Ors.
1991 Latest Caselaw 626 Del

JUDGMENT

Mital, C.J.

(1) Plots bearing Khasra Sakni Nos 13 and 14 In village Kalu Sarai, New Delhi was sold by the Rehabilitation Department in favor of Dr. K.L. Anand vide sale certificates Exhibits Public Witness . 1/1 and Public Witness . 1/2, wherein the boundaries were not correctly mentioned and corrected sale certificates were issued on 25th October, 1969, copies of which are Annexures Exhibits P.W. 1/3 and Public Witness . 1/4. The sale certificates were issued pursuant to an open auction held by the Rehabilitation Department on 14th April, 1967, in which Dr. K.L. Anand was found to be the highest bidder.

(2) Rehmatullah and his brother filed Civil Writ Petition No. 960 of 1969 in this Court on 9th September, 1969 challenging the sale certificates issued to Dr. K L. Anand and the writ petition was dismissed by a Single Judge of this Court on 15th September, 1978 and their Letters Patent Appeal No. 95 of 1978 was dismissed on 14th September, 1982. The judgment of the Letters Patent Bench is Exhibit Public Witness . 1/7. The crucial finding relevant for consideration, recorded by the Letters Patent Bench is as follows : "Here the contention is that their property has been sold in the garb of selling evacuee property. In order to find out whether in fact the appellants Property has been sold, one has merely to look at the three lots which were allocated and accepted in the proceedings under the Evacuee Interest (Separation) Act. The document on the record shows that the lot which fell to the share of the appellants had only agricultural land and superstructures. What has been sold to respondent No. 4 is a house with possibly land apartment thereto. There is nothing on the record to show that any encroachment has been made by the impugned sale on the property allocated to the appellants in the separation of interest proceedings. Both the petition and the appeal records are singularly void of particulars and details. Learned Counsel for the appellants contends that land more than what was declared to be evacuee property could not be sold, and therefore, obviously the appellants land has also been sold. First of all the sale certificate does not give any area of the land sold. Secondly even if land more than what was held to be evacuee share was sold, what the appellants have to show is that any land belonging to them has been sold before they can succeed in this Court. This, they have failed to do before us. In our opinion this litigation has been, to say the least, vexatious. The appellants have failed to show how they or any part of their property has been adversely affected. They have been litigating against respondent No. 4 for no rhyme or reason. Respondent No. 4 was Dr. KL. Anand in the proceedings before the Letters Patent Bench.

(3) While the writ petition wag pending in this Court, on 9th September, 1970 Dr. K.L. Anand filed a civil suit In the Court of Sub-Judge 1st Class, Delhi against Rehmatullah and his brother's legal representatives, as brother had died in the meantime, to seek possession of Khasra Sakni Nos. 13 and 14, referred to above, on the ground that the possession of the defendants was unauthorised and the plaintiff was owner on the basis of sale certificates granted to him by the Rehabilitation Department. He also claimed damages for the months of April and May, 1970 at the rate of Rs. 200.00 per mensem and 640 future damages till possession of the property is restored to him. In the plaint the corrected boundaries of the property were mentioned.

(4) In the written statement, the defendants took the stand that regarding the properties in dispute, their writ petition was pending in the High Court and since the finding recorded in the writ petition was likely to operate as rejsudicata, the proceedings in the suit deserve to be stayed. It was also highlighted that the legality of the sale in favor of the plaintiff has been challenged in the writ petition.

(5) In paragraphs 11 and 12 of the written statement, it was also mentioned that on the basis of original sale certificates, the boundaries were different as per the boundaries mentioned in the plaint. As regards the change of boundaries, it was stated that it was done without notice to them. Otherwise, if the averments made in the preliminary objections and the first four paragraphs of the written statement are read together, it is clearly established that it was admitted that the defendants were in possession of the properties covered by Khasra Sakni Nos-13 and 14, Moreover no clear stand was taken whether properties covered by Exhibits Public Witness . 1/1 and Public Witness . 1/2 were different from properties covered by Exhibits Public Witness . 1/3 and Public Witness . 1/4.

(6) In view of the preliminary points raised in the written statement for staying the suit, and in view of the pendency of the writ petition which was likely to operate as res judicata, the trial Court stayed suit vide order dated 29th January, 1972 by observing that the findings in the writ petition may operate as res judicata in the suit. As already noticed above, the writ petition was finally dismissed and the appeal was also dismissed by the Letters patent Bench on 14th September, 1982 while giving clear finding that the defendants in the suit, who are the petitioners In the writ petition and appellants before the Letters Patent Beach had failed to show that anything belonging to them has been sold to Dr. K.L Anand. The learned Judges concluded with the observation that the litigation has been, to say the least, vexatious and the appellants have failed to show how they or any part of their property has been adversely affected. It was also observed that they have been litigating against Dr. K.L. Anand for no rhyme or reason.

(7) Soon thereafter the plaintiff, Dr K.L. Anand got the suit revived in view of the decision of the Letters Patent Bench and took the stand that the points raised in the written statement stood concluded by the decision of the Letters Patent Bench in his favor, with the result his suit for possession and mesne profit be decreed.

(8) The trial Court dismissed the suit on 23rd May, 1986 on totally extraneous reasons, which were neither raised in the written statement nor could be raised as the proceedings undertaken by the Rehabilitation Department could not be challenged in a civil Court. The learned Sub-Judge held that the plaintiff had failed to prove if be was a displaced person or an associate of a displaced person and by virtue of Section 20 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954, the transfer in favor of the plaintiff was bad. It also came to the conclusion that the conveyance deeds Exhibits Public Witness . 1/1 and Public Witness . 1/2 became final and could not be changed by the Managing Officer unless he was empowered to do so and moreover the Managing Officer made the corrections without notice to the occupants of the property i e. in violation of the principle of natural justice.

(9) As regards res judicata the learned Sub-Judge only took notice of the judgment of the learned Single judge of the High Court and not of the 641 Letters Patent Bench, although it was on record. Not only this, the trial Sub- Judge came to the conclusion that the plaintiff has failed to prove his ownership right on the property in dispute and property has been incorrectly described. As a result, it was held that the plaintiff has failed to prove that the possession of the defendants was illegal. On the point of valuation for purposes of Court- fee and jurisdiction, the trial Court came to the conclusion that the value of the suit is Rs. 10.300.00 for claiming relief of possession as against the value of Rs. 1000.00 shown by the plaintiff. As regards relief of damages for use and occupation, the valuation made by the plaintiff was not disturbed.

(10) This Is the plaintiff's first appeal against the judgment and decree of the trial Court dismissing the suit.

(11) After hearing Counsel for the parties and on persual of the entire record, we are of the opinion that this appeal deserves to be succeeded both on the ground of res judicata and merits of the case.

(12) First dealing with the point of res judicata the Letters Patent Bench clearly found that the property in dispute has been sold to Dr. K.L. Anand. It was also clearly held that the appellants had failed to prove their plea that anything belonging to them had been sold to the respondent as evacuee property. The trial Court erred in law in not referring to the decision of the Letters Patent Bench. It is true that if the Letters Patent Bench's decision had not been rendered, on the basis of the learned Single Judge's judgment, the finding arrived at by the trial Court would have been correct. Accordingly, we reverse the finding of the trial Court on the point of res judicata and hold that the earlier decision between the parties to the effect that the property in dispute was a part of the land sold by the Rehabilitation Department to Dr. K.L, Anand operates as res judicata between the parties.

(13) Even if it is assumed for the sake of argument, the Letters Patent Bench's decision did not operate as res judicata, still on the material on record we are of the opinion that Dr. K.L. Anand has been able to prove that the property in dispute has been transferred to him by the Rehabilitation Department. In defense to the suit, the stand taken by the defendants in the written statement is that the sale of the property in dispute made by the Rehabilitation Department in favor of the plaintiff is illegal, without jurisdiction and void and is not binding on them. The other material point raised in the written statement for consideration would be that at places they admitted the property in dispute to be the same which was covered by the writ petition, filed by them in this Court and raised the plea on that ground, that the hearing of the suit should he stayed till the decision of the writ petition. At other places, it is pleaded that the details given in the plaint regarding Khasra Sakni Nos. 13 and 14 do not tally with the description of the conveyance deeds given by the Rehabilitation Department to the plaintiff. In nutshell, it may be observed that the defendants have not been able to locate as to where Khasra Sakni Nos. 13 and 14 are situated. All they want to say Is that the property in dispute belongs to them and either the sale in regard to it by the Rehabilitation Department to the plaintiff is illegal, without jurisdiction and void or In the alternative they want to say that that property is not the one which was in their possession. We have to keep this inconsistent, vague and indefinite plea raised by the defendants in view, while appreciating the evidence on record.

(14) On a consideration of the pleadings of the parties and the evidence brought on record, we are of the view that the property in dispute is the one which was transferred by the Rehabilitation Department in favor of the 642 plaintiff. Firstly, there is a clear admission by the defendants in the written statement, in para 2 of the preliminary objections, which is to the following effect. "2. That the suit is liable to be stayed in view of the provisions of Section 10 Cpc, as the matter in issue in the present suit is already directly and substantially in issue between the parties in Civil Writ No 960 of 1969 pending in the High Court of Delhi, wherein the above named defendants have already challenged the legality of the transfer of the property involved in the present suit in favor of the above named plaintiff." We lay emphasis on the words "the property involved in the present suit". The statement contained in para 2 of the preliminary objections of the written statement was accepted by the trial Court and in view of the pendency of the writ petition, the suit was stayed originally when the writ petition was pending before a learned Single Judge and thereafter when it was pending before the Letters Patent Bench and the proceedings in the suit were got revived by the plaintiff after the decision of the Letters Patent Bench. Moreover, the conveyance deeds Exhibits Public Witness . 1/1 and Public Witness . 1/2 clearly show that the Rehabilitation Department granted sale certificates to the plaintiff in respect of two Khasra Sakni Nos. 13 and 14 respectively. There was some clerical mistake in mentioning the boundaries on two sides aforesaid two documents and that was corrected and the corrected sale certificates are Exhibits Public Witness . 1/3 and Public Witness . 1/4.

(15) The proceedings taken under the Displaced Persons (Compensation and Rehabilittaion) Act, 1954 cannot be challenged in Civil Court. Reference may be made to Section 36 of the Act. Accordingly, the defendants cannot challenge the legality or validity of the sale certificates granted by the Rehabilitation Department to the plaintiff As such, his ownership about Khasra Sakni Nos. 13 and 14 stands clearly established.

(16) The only point remains for consideration is whether the property in possession of the defendants is covered by Khasra Sakni Nos. 13 and 14. As already observed, in this behalf there is a clear admission on behalf of the defendants in para 2 of the preliminary objections of (he written statement, which has been reproduced above. The defendants are bound by the same and they have failed to show that their admission in this behalf is wrong. The matter would have been different, if they had been able to identify the location of the land covered by Khasra Sakni Nos. 13 and 14 and establish that the land in their possession is different from the land covered by Khasra Sakni Nos. 13 and 14. They cannot raise vague plea. in view of the clear admission, that the land in their possession is not covered by Khasra Sakni Nos. 13 and 14. We believe the statement of the plaintiff, Public Witness . I, about the boundaries of the property in dispute as also to the effect that the land in possession of the defendants is the same, which was transferred to the plaintiff by the Rehabilitation Department. We have also gone through the statements of D.W. 1, who is one of the legal representatives of defendant No 2, D.W. 2 son of defendant No. 1 and D.W. 3, another legal representative of defendant No. 2. Their statements do not inspire confidence. They have not been able to establish their ownership of any part of the land in dispute. Accordingly, we disbelieve their statements.

(17) Another point, on which the trial Court decided against the plaintiff was the change in some boundaries made by the Rehabilitation Department without Issue of notice to the defendants. Firstly, the defendants are trespassers and as such were not entitled to hearing and secondly the Rehabilitation 643 Department was the owner and by auction the property was transferred to Dr. K.L. Anand on the basis of sale cerlificates. Since a mistake crept in those sale certificates about two boundaries, on verification the correction was made and the corrected sale certificates were issued.

(18) Moreover the defendants should have raised this point firstly in the writ petition and then in the Letters Patent appeal filed by them, which was decided against them on 14th September, 1982. If the defendants had raised this matter before the Letters Patent Bench, the determination could have been made and having failed to do so, they cannot be allowed to raise this point at such a belated stage. The plaintiff had filed the suit on 9th September, 1970, In which clear mention was made about the corrected sale certificates and the defendants had filed their written statement on 21st January, 1971 and the issues on the basis of the pleadings of the parties were framed on 13th May, 1971, wherein one of the issues was, whether the suit is liable to be stayed under Section 10, C P.C. Inspite of becoming aware of corrected sale certificates by January, 1971, the defendants did not raise this point in the writ petition by seeking amendment thereof or otherwise or in the Letters Patent appeal. Hence on the principle of constructive res judicata and on account of laches, they could not be allowed to raise this point. Accordingly, this matter decided by the trial Court in favor of the defendants is reversed and it is held that the defendants were not entitled to a hearing before correction of the sale certificates.

(19) From the analysis of the evidence and on their preponderance, we are of the opinion that the plaintiff has been able to establish the ownership of the land in possession of the defendants, on the basis of the sale certificates granted to him by the Rehabilitation Department. Since the defendants have failed to establish their ownership of the land in dispute, they have to be held to be unauthorised occupants. Accordingly, we set aside the findings of the trial Court to the contrary and hold that the plaintiff has established his ownership and right to possession of the land in dispute and since the defendants are in unauthorised possession, he is entitled to & decree of possession.

(20) Once the defendants are found to be unauthorised occupants, the next question for consideration would be, how much damages for mesne profit the plaintiff is entitled to? The plaintiff has claimed damages of Rs. 400.00 from 1st April. 1970 to 31st May, 1970 at the rate of Rs 200.00 per month. The plaintiff has failed to produce any evidence on record in this behalf, barring his statement. The witnesses of the defendants, appearing as D.W. 1 and D.W. 2 had admitted that the letting value of the similar property is Rs.4.00 or Rs. 5.00 per month. Relying on the statements of D.W. 1 and D.W. 2, which can be called as admission, we fix the damages for the period 1st April, 1970 to 31st May, 1970 at Rs. 10.00 i.e. at the rate of Rs. 51- per month.

(21) During the course of arguments, the Counsel for the plaint iff also argued that in case suit for damages is to be decreed, the plaintiff be also granted a decree under Order Xx rule 12 (1) (e) (i) of the Code of Civil Procedure for future damages till delivery of possession. This claim made on behalf of the plaintiff is also well founded as admittedly the defendants have continued to be in possession illegally even after the filing of the suit till date.

(22) The trial Court in its judgment, came to the conclusion that the value of the suit for purposes of Court-fee and jurisdiction regarding possession 644 was Rs. 10,300.00 as against Rs. 10,000.00 as stated by the plaintiff in his suit As regards damages, the trial Court did not dispute the plea of the plaintiff that the value for purposes of Court-fee was Rs. 400.00 . Basing our decision on the finding recorded by the trial Court, we hold that the value of the suit for purposes of Court-fee and jurisdiction for the two reliefs is Rs. 10.700.00

(23) Accordingly, we set aside the judgment and decree of the trial Court and allow the appeal with costs throughout and decree the plaintiff's suit for possession against the defendants. We also grant the plaintiff a decree for recovery of Rs. 10.00 as damages for unlawful occupants from 1st April, 1970 to 31st May, 1970. We also grant a decree for recovery of mense profit against the defendants in terms of Order Xx rule 12 (1) (e) (i) of the Code of Civil Procedure. In this behalf, the inquiry to be conducted under Clause (e) is to be completed, which shall be done by the trial Court. The trial Court will take steps to pass a final decree in respect of mesne profit.

(24) The plaintiff is given three months time to make good the Court- fees on the plaint and in the memorandum of appeal, if on any of the two, the same is deficient, on the basis of the finding recorded on the point of value of the suit for the purposes of Court-fee and jurisdiction.