Delhi High Court

Sh. Ram Sunder Bhatia Through His ... vs Smt. Sharbati Devi Through Her Lrs on 15 July, 2010

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment Reserved on: 12.07.2010
%                             Judgment Delivered on: 15.07.2010

+                         R.S.A. No.219/1982

SH. RAM SUNDER BHATIA
Through his LRs                                 ...........Appellant
                Through:             Mr.Swastik Singh Solanki with
                                     Mr.Rajanish Mishra, Advocates.

                    Versus

SMT. SHARBATI DEVI
Through her LRs                                ..........Respondent
                 Through:            Mr.Jeevan Prakash, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                    Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

1. This is a second appeal.

2. Factual matrix reads as follows:

(i) Raghbar Dayal was the owner of land measuring 2

bighas and 10 biswas (approximately 2520 sq.yds) in Khasra

no.77, Abadi Raghbarpura, Gandhi Nagar, Shahdara, Delhi.

(ii) He vide registered lease deed dated 3.11.1943 had

leased out 1281 sq.yds to one Afzal Hussain for 99 years

describing them as plots nos.1 to 7 in the lay out plan in

Khasra no.77.

(iii) Vide subsequent registered lease deed dated 16.5.1949

Afzal Hussain has assigned lease hold rights of 1012 sq. yds.

land to the plaintiff Ram Sunder Bhatia for 93 years

describing them as plots nos. 3 to 7.

(iv) Suit no.474/1956 was filed by the plaintiff against Bal

Kishan (defendant no.1) and Raghbar Dayal (defendant no.2).

This was a suit of possession of land which had allegedly

been encroached upon by the said defendants and formed a

part of plot no.7.

(v) On 24.12.1962 Raghbar Dayal sold some portion of his

owned land in Khasra no.77 to Laxmi Devi. In 1963

Smt.Laxmi Devi sold this land to Indira Devi who in turn in

1964 sold it to Sharbati Devi, the present defendant.

(vi) Plaintiff filed the second suit i.e. the present suit

bearing no.350/1967 against Sharbati Devi seeking

possession of 54 sq.yds. of land which she had allegedly

encroached. This suit was dismissed by the sub-judge, 1st

Class on 8.6.1973. The trial court had framed 8 issues. Issue

no.6 was whether the earlier suit filed by the plaintiff i.e. suit

no.474/1956 creates the bar of res judicata to the filing of the

second suit. The judgment of the first court had been proved

as Ex.PW-8/1 and the plan therein had been proved as

Ex.PW-8/8. The plaint in that suit Ex.PW-8/7 had been

instituted by the present plaintiff Ram Sunder Bhatia against

Bal Kishan and Raghbar Dayal. It was held that the present

defendant Sharbati Devi had derived her title from erstwhile

owners i.e. from Indira Devi who in turn had derived her title

from Laxmi Devi who had in turn purchased it from Raghbar

Dayal; thus the defendant became a successor in interest of

Raghbar Dayal. The present suit also being a suit between

the same parties, the findings given in judgment Ex.PW-8/1

are binding inter se between the parties and they cannot now

be re-agitated before this court. The trial court had further

examined the two site plans which had been placed on record

by the plaintiff i.e. Ex.P-1 and Ex.PW-8/8 which were both

site plans filed in the earlier suit i.e. suit no.474/1956. On

scrutiny of the aforenoted documents, the trial court had held

that the plaintiff had failed to establish on record that the

defendant or her predecessor in interest had made any

encroachment on the land owned by the plaintiff. Trial court

had relied upon the sale deed Ex.DW-4/1 filed by the

defendant evidencing her ownership in the disputed

house/area. Further that the documentary evidence placed on

record which included the two site plans aforenoted as also

the Jamabandis for the relevant years i.e. Ex.DW-3/2,

Ex.PW3/9 and Ex.PW-8/6 evidenced that the area in question

in fact was land which was owned by the defendant herself

and plaintiff had failed to show that this aforestated land

comprising of 54 sq.yds was in the name of the plaintiff and

which had been encroached upon by the defendant. The

submission of the plaintiff that his site plan Ex.P-1 had

demarcated the portion of the plaintiff and was sufficient

proof that the defendants had encroached upon this area had

been repelled. Suit had accordingly been dismissed.

(vii) The Additional District Judge had decided first appeal

filed by the defendant/Ram Sunder Bhatia on 19.5.1982. The

findings of the trial court were endorsed. The appeal was

dismissed. While dealing with the issue no.6 which related to

the applicability of the principle of res judicata the appellate

court was of the view that the judgment Ex.PW-8/1 in the

said suit was an ex-parte judgment meaning thereby that the

matter had not been heard and finally decided; further the

subject matter of the suit property in the present suit was not

the same as the subject matter of the suit property in the

earlier suit. It had further been that in the earlier suit i.e.

suit no. 474/1956 plot no.7 was in dispute whereas in the

present suit plot no.4, plot no.5 as also plot no.7 were in

dispute; further that the defendant no.2 was only a proforma

party in the earlier suit which had been decreed against

defendant no.1 alone. For all the aforesaid reasons, the

appellate court while endorsing and confirming the order of

the trial judge and dismissing the suit, had however held that

the principle of res judicata was not applicable to the instant

situation. The first appellate court had further examined the

evidentiary value of the site plan Ex.P-1 relied upon by the

plaintiff; it was held that Ex.P-1 had been prepared by a

private individual and not under the directions of a town

planner; this document which had been prepared on

19.12.1943 had been exhibited in the court proceedings on

3.5.1968; 30 years not having elapsed since the date of its

birth; the said site plan could not be read; it was accordingly

discarded by the first appellate court.

(viii) This is the second appeal which has been preferred by

the plaintiff Ram Sunder Bhatia.

(ix) On 5.7.2010, two substantial questions of law were

formulated by this court which read as under:

1. Whether the judgment Ex.PW-8/1 passed in the earlier suit i.e. Suit no.474/1956 dated 28.11.1957 will operate as a resjudicata?

2. Whether the evidentiary value of the plans Ex.P-1 and Ex.PW-8/8 relied upon by the appellant/plaintiff in the earlier suit i.e. Suit no.474/1956 although legally admissible have been ignored?

3. The counsel for the plaintiff/appellant has submitted that the

approach of the trial court is erroneous. The first appellate court

reversing the finding of the trial judge holding that the principle of

res judicata is not applicable is not a correct appreciation on the

question of law. Attention has been drawn to para no.3 of the

written statement. It is submitted that it is undisputed that the

defendant Sharbati Devi had purchased this property from Indira

Devi who had in turn purchased it from Laxmi Devi who had

purchased it from Raghbar Dayal. The finding of the trial court

that the present defendant was in fact a successor in interest of

Raghbar Dayal was passed on the correct appreciation of facts.

The earlier suit i.e. suit no.474/1956 was instituted by the present

plaintiff against Bal Kishan and Raghbar Dayal; the present suit

had been instituted by the plaintiff against Chameli Devi who had

derived her title from Raghbar Dayal. In the first suit decree for

possession had been sought against both the defendants jointly and

the judgment Ex.PW-8/1 has decreed the suit of the plaintiff

against both the said defendants; defendant no.2 did not qualify as

a proforma defendant. This submission of the appellant is in fact

borne out from the record. Counsel for the appellant has also

placed reliance upon a judgment reported in 2007 8 SCC 329

Saroja vs. Chinnusamy (dead) by LRs & Anr. to support his

submission that an ex-parte decree would also in the facts and

circumstances of a particular case operate as resjudicata where the

conditions as contained in Section 11 of the Code are fulfilled. It is

submitted that all the aforenoted ingredients stand fulfilled and

since the issue in the earlier suit i.e. in suit no.474/1956 and the

present suit was the same, the parties being the same, the first suit

although ex-parte yet having been decided by a court of competent

jurisdiction in view of the aforenoted judgment the principle of

resjudicata squarely applied to the second suit and as such the

reversal of this finding was clearly erroneous, contrary and in

conflict with the principles enshrined in Section 11 of the Code.

4. It is further argued that the evidentiary value of Ex.PW8/8

and Ex.P-1 which were site plans of suit property filed in first suit

i.e. Suit no.474/1956 had already been considered by the said court

on the basis of which the claim of the petitioner had been decreed

in his favour; its evidentiary value again questioned by another

court is erroneous; this could not be reconsidered by the second

court; the courts below while rejecting this piece of evidence have

committed a grave error.

5. These arguments have been countered by the learned

counsel for the respondent. It is stated that the principle of

resjudicata is clearly not applicable and has right been held so by

the first appellate court. This is for the reason that the disputed

property in suit no.474/1956 is distinct and different from the suit

property in the present suit and this is borne out from the

averments made in the plaint. Attention has been drawn to para 5

of the plaint Ex.PW-8/7 filed in the first suit i.e. in suit no.474/1956

wherein it had specifically been averred that defendant no.2 had

taken unlawful possession of 2500 sq.yds in plot no.7; the prayer

also specifically makes a reference to the restoration of the

possession of land which is contained in plot no.7 in Khasra no.77,

Regharpura, Seelampur, Delhi. The present suit is a suit for

possession of 54 sq. yds of land contained in khasra no.77 and

forming a part of plot nos.4 & 5 and this is also the prayer;

reference being made to plot nos.4 & 5 only. Further the courts

below had rightly rejected the documentary evidence i.e. the site

plans Ex.P-1 and Ex.PW-8/8 as an advancement of the case of the

plaintiff.

6. The perusal of the record shows that both the courts below,

who are fact finding courts had correctly appreciated the factual

position. The first suit pursuant to which the judgment Ex.PW-8/1

was rendered related to suit property comprising of 200 sq. yds of

which 180 sq.yds had been decreed in plot no.7 of Khasra no.77 of

Raghubarpura, Shahdara. Second suit related to a suit for

possession although between the same parties but yet the subject

matter of the suit not being the same as this suit related to

possession of 54 sq.yds (480 sq.ft.) of land falling in plot nos.4 & 5

of Khasra no.77, Raghubarpura, Shahdara, Delhi.

7. In the judgment of Saroja (supra) the Supreme Court has laid

down the conditions which must be satisfied before the principle of

resjudicata as contained in Section 11 of the Code can be applied.

They inter alia read as follows:

(i) There must be two suits- one former suit and the other subsequent suit;

(ii) The court which decided the former suit must be competent to try the subsequent suit;

(iii) The matter directly and substantially in issue must be the same either actually or constructively in both the suits;

(iv) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit;

(v) The parties to the suits or the parties under whom they or any of them claim must be the same in both the suits;

(vi) The parties in both the suits must have litigated under the same title.

Condition no.3 has clearly not been fulfilled. The subject

matter of the suit property in the former suit and the subject

matter of the suit property in the latter suit are different and

distinct. First appellate court had rightly held that Section 11 of

the Code is not applicable.

8. The disputed documents i.e. the site plans Ex.PW-8/8 and

Ex.P-1 could not fix the identity of the land in dispute. Further, the

site plan Ex.P-1 prepared on 19.12.1943 by a private architect and

exhibited in court on 3.5.1968 i.e. within a span of less than 30

years could not raise a presumption in favour of the plaintiff. This

is amply clear from a reading of Section 90 read with Section 83 of

the Indian Evidence Act which read as under:

90. Presumption as to documents thirty years old- where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

Explanation- Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such as origin probable.

This explanation applies also to section 81.

83. Presumption as to maps or plans made by authority of Government- The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or by any State Government were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate.

9. The plea of the plaintiff that the demarcation of the land

could be effected from the property of Bal Kishan had also rightly

been rejected. The earlier suit of the plaintiff had been decreed for

180 sq. yds only; 20 sq. yds in plot no.7 had fallen to the share of

Bal Kishan; Bal Kishan's property could not be considered as a

fixed or pacca point and as such demarcation in terms thereof as

depicted in Ex.P-1 was not sufficient proof of the claim of the

plaintiff. The jamabandis and mutation record i.e. Ex.PW-3/2,

Ex.PW-3/9, Ex.PW-8/6 as also the sale deed Ex.DW-4/1 relied upon

by the defendant were correctly taken into account by the trial

court to draw the conclusion that the land in dispute did not

feature into the ownership of the plaintiff which the plaintiff was