Shri. Krishan Lal Nagpal vs Shri Desh Raj
2010 Latest Caselaw 4736 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment : 07.10.2010

+                          RSA No.117/2007


SHRI. KRISHAN LAL NAGPAL          ...........Appellant
              Through: Mr.Alok Kumar and Ms.Manisha
                       Narain, Advocate.

                      Versus

SHRI DESH RAJ                              ..........Respondent
                      Through:   Mr.G.K.Sharma, 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. (Oral)

1. This appeal has impugned the judgment and decree dated

20.01.2007 which had endorsed the judgment and decree of the

trial judge dated 08.11.2005 decreeing the suit of the plaintiff for

possession, declaration and mandatory injunction.

2. The factual matrix is as follows:-

i. Plaintiff/respondent, Sh. Desh Raj, had filed a suit for

possession, declaration and mandatory injunction against the

appellant/defendant, Sh. Krishan Lal Nagpal. The property in

dispute was premises bearing no. 128, Ram Nagar, Village

Khureji Khas, Krishna Nagar (hereinafter referred to as the

suit premises). Possession of one room, kitchen and latrine

on the ground floor of the said property with a prayer for a

declaration that the sale deed dated 29.04.1997 executed by

Smt. Kesar Devi in favour of the defendant qua half undivided

portion in the suit premises be declared null and void; further

the defendant be directed to remove his locks from the said

property of which possession has been sought by the plaintiff.

ii. Plaintiff claimed himself to be the absolute owner of

this suit premises in terms of a registered sale deed dated

28.04.1962. Defendant being his real brother, in 1962, was

permitted to occupy one room with the toilet and kitchen.

License was on a temporary basis; it was settled that the

defendant would handover peaceful possession of the suit

premises back to the plaintiff as and when required by the

plaintiff. Plaintiff had also permitted his mother, Smt. Kesar

Devi, to live in another portion i.e. in one room and a kitchen.

His mother expired on 23.03.1999. Plaintiff put his lock on

this portion which was in the occupancy of his mother.

iii. Plaintiff had gone to perform the last rites of his

mother to Haridwar. In his absence, the defendant put his

locks in the said portion.

iv. Plaintiff had let out another portion (as depicted in

green colour in the site plan) to his tenant, Sh. Ram Pyara.

Sh. Ram Pyara was evicted by the order of the Additional

Rent Controller. Defendant had illegally put his locks on this

portion also. Proceedings under Section 145 of the CrPC had

been initiated and were pending.

v. Legal notice dated 14/03/2000 was served upon the

plaintiff but he had failed to vacate the suit property. He

gave a false reply dated 28/03/2000 claiming himself to be

the owner of half portion of this property in terms of sale

deed executed by their mother, Smt. Kesar Devi, in his

favour. Defendant had also relied upon a power of attorney

executed by the plaintiff in favour of his mother. These

documents were denied by the plaintiff.

vi. Plaintiff revoked the license of the defendant vide the

legal notice dated 11.03.2002. Defendant having failed to

vacate the said property, the present suit was filed.

vii. Defendant contested the suit. He claimed ownership

over one half of the suit property in terms of a sale deed

which had been executed in his favour by their mother, Smt.

Kesar Devi. Smt. Kesar Devi had been accorded the general

power of attorney by the plaintiff dated 17.01.1997 pursuant

to which the sale deed dated 29.04.1997 had been executed

by Smt. Kesar Devi in favour of the defendant. The

contention of the defendant was that this property had been

purchased by his mother in the name of the plaintiff who was

a minor at that time. Plaintiff was asked to transfer half of

this property in favour of the defendant; he did not agree;

thereafter with the intervention of the family members, the

aforenoted arrangement had been arrived at.

viii. Trial Judge framed seven issues. They inter alia read

as follows:

"1.Whether the pltf is the exclusive owner of the property in dispute? OPP

2. Whether the plaintiff has valued the suit property for the purpose of court fee and jurisdiction? OPP

3. Whether the suit is barred by limitation? OPD

4. Whether the plaintiff is entitled for the relief of declaration as prayed for? OPP

5. Whether the plaintiff is entitled for the relief of possession as prayed for? OPP

6. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for? OPP

7. Relief ?"

ix. Trial Judge held that vide sale deed Ex.PW-1/1 dated

28.4.1962 plaintiff was the owner of the suit property.

Defendant has failed to discharge the onus that this property

had been purchased in the name of the plaintiff by their

mother from her funds. Reliance by the defendant on the

power of attorney dated 17.1.1997 purported to have been

executed by the plaintiff in favour of his mother was not

proved; she not being the owner of the property could not

have sold it. This finding was arrived at after examining the

oral and documentary evidence led before the said Court.

The suit of the plaintiff for possession was decreed; further a

decree of mandatory injunction was passed in favour of the

plaintiff and against the defendant directing him to vacate

the suit property as also a declaration that the sale deed

dated 24.9.1997 Ex.DW-6/A executed by their mother Kesar

Devi in favour of the defendant qua 1/2 of the suit property

was null and void.

x. The impugned judgment endorsed this finding. It held

that the terms of the document i.e. the sale deed Ex.PW-1/2

had established title of the plaintiff in the suit property; the

oral arrangement pleaded by the defendant was disbelieved;

reliance was also made on the provision of Section 91 of the

Indian Evidence Act.

3. This is a second appeal. After its admission on 7.5.2007 the

following substantial question of law was formulated:

"Whether an oral family settlement binds the parties even against a registered sale deed executed in favour of the respondent?"

4. On behalf of the appellant, it has vehemently been urged that

the judgments of both the Courts below had misinterpreted the

oral and the documentary evidence; Ex.DW-6/A sale deed of 1/2 of

this property executed by Smt.Kesar Devi, their mother in favour of

the defendant, had proved the title of the defendant. Smt.Kesar

Devi had entered into this sale transaction in terms of a valid, legal

and subsisting general power of attorney dated 17.01.1997 which

had been executed in her favour by the plaintiff. The concept of a

family arrangement had been illegally ignored by the both Courts

below. Testimonies of the witnesses of the defendant i.e. DW-1 to

DW-5 all family members had not been appreciated in the correct

perspective. Learned counsel for the appellant has placed reliance

upon a judgment reported in AIR 1976 SC 807 Kale Ors. Vs. Deputy

Director of Consolidation & Ors. to support his submission that an

oral family arrangement does not require registration; terms of

such a family arrangement are not required to be recited in a

document. This important aspect has been ignored by the both

Courts below which amounts to a perversity.

5. Arguments have been countered by the learned counsel for

the respondent. It is pointed out that this Court is sitting in second

appeal and cannot become a third fact finding court. The

contentions raised before this Court had adequately been dealt

with by both the Courts below. No interference is called for by this

Court as no substantial question of law has arisen. For this

proposition reliance has been placed upon the judgments reported

in 1998 RLR (NSC) 49 Sheel Chand Vs. Prakash Chand and 1986

RLR NSC 67 Dudhnath Vs. Suresh Chand as also a judgment of

the Apex Court reported in AIR 1991 SC 2216 Arumugham & Ors.

Vs. Sundarambal & Anr. It is submitted that the appellant is taking

contrary pleas; on the one hand he is relying upon a family

settlement and on the other hand he has produced a document i.e.

the sale deed Ex.DW-6/A to substantiate his averments that he had

purchased 1/2 of this property vide a sale deed executed by his

mother Kesar Devi in his favour; both are contrary and conflicting

stands. It is pointed out that the stamp paper for this document

had also been purchased on the same day i.e. on 29.4.1997;

demand draft is also of the same date; the NOC had been granted

on 23.5.1997 i.e. after a much later date; all these factors also

created a doubt on the authenticity of this document which had

rightly been disbelieved by the Courts below. The judgment of Kale

(supra) relied upon heavily by counsel for the appellant would not

apply to the facts of the instant case; that was a dispute about the

family settlement with the government; question involved was

about the registration of the said document. Ratio would be

inapplicable.

6. In rebuttal, learned counsel for the appellant has pointed out

that the findings in the impugned judgment are a perversity which

call for an interference and to support his submission he has

highlighted para no.9 of the impugned judgment. It is pointed out

that the finding in the impugned judgment that a family

arrangement applies only to inherited property is clearly perverse;

it is against the ratio of the Kale's judgment (supra); further the

provisions of Section 91 of the Indian Evidence Act 1972 have also

been misapplied.

7. This Court is sitting as a Second Appellate Court; it is not a

third fact finding Court. Before the Trial Judge as aforenoted

seven issues had been framed; the oral and documentary evidence

had been appreciated in detail. This is a dispute between two

brothers. The plaintiff is the elder brother. He has come into

witness box as PW-1 and the defendant is the younger brother; he

has come into witness box as DW-1. Their two sisters Pushpa Rani

Ahuja and Kamlesh Mittal had supported the version of the

defendant; they came into witness box as DW-5 and DW-4. DW-5

had deposed that a power of attorney had been executed by her

elder brother Desh Raj Nagpal in favour of their mother which

was witnessed by her; this was in April 1997; the second sister

Kamlesh Mittal examined as DW-4 had also deposed that a power

of attorney had been executed by her elder brother Desh Raj

Nagpal in favour of their mother in her presence; she has not given

the date. In fact the affidavit of both the sisters by way of evidence

is verbatim; so much so first in para no.3 the spelling mistake in

the word "flattery" finds mention in both the appellants. DW-4 in

her cross-examination has spoken of a Panchayat which had

allegedly taken place in the year 1996-97; she was a member

thereof. DW-2 is the niece of the parties and the daughter of

Pushpa Rani. She had also deposed that a power of attorney was

executed by plaintiff in favour of her Naani (maternal

grandmother) in her presence. As per her version she had reached

the Seelampur Court with her Naani for execution of the general

power of attorney on 17.1.1997; she had also been called in the

Panchayat. DW-3 Bansi Lal was the cousin maternal uncle of the

parties. As per his version his cousin Smt.Kesar Devi had executed

the GPA at the Seelam Pur Court in his presence and he had

attested this document; in his cross-examination he had stated that

the leave taken by him on that day to attend Seelam Pur Court had

not been recorded in any register. There is no doubt that the

aforenoted witnesses were all family members and they had

deposed in favour of the defendant; this had been taken into

account by the Trial Judge. The Trial Judge had weighed the

evidence adduced before it and had concluded that the balance

had, however, tilted in favour of the plaintiff and against the

defendant. This was endorsed in the impugned judgment.

8. The whole basis of the claim of the defendant in fact rests

upon his power of attorney which the plaintiff had purported to

have executed on 17.1.1997 in favour of his mother Kesar Devi.

Admittedly this power of attorney did not see the light of the day;

it was not adduced in evidence. Case of the defendant was that

this document had been lost by him; no application for permission

to lead secondary evidence under Section 65 or Section 66 of the

Evidence Act had been filed to prove this document by the said

mode. Section 91 of the Evidence Act also creates a bar; if there

is a document in writing the contents of the same can be proved by

primary evidence or by secondary evidence; this is either by

producing the said document or leading secondary evidence to

adduce its contents. The impugned judgment had correctly

appreciated the said principle. The GPA should have been proved

by primary evidence or secondary evidence in view of Section 91 of

the Evidence Act.

9. The defendant had then relied upon a sale document i.e. the

sale deed Ex.DW-6/A dated 29.4.1997 purported to have been

executed by Kesar Devi qua 1/2 of the suit property in his favour.

The basis of Ex.DW-6/A was the GPA dated 17.1.1997 as admittedly

Kesar Devi was not owner of this property; she had executed this

sale deed in favour of the defendant only on the strength of this

power of attorney dated 17.1.1997 which her elder son had

executed in her favour; this power of attorney was not proved;

obviously the sale deed which was based on this power of attorney

also had no strength; it had no legs to stand. This was held by both

the Courts below.

10. The plaintiff had purchased this property vide a registered

sale deed dated 28.4.1962 Ex.PW-1/1. This document is not in

dispute; it is not disputed by the defendant that such a sale deed

had been executed in favour of the plaintiff; contention of the

defendant being that subsequent thereto an oral family settlement

had been arrived at between the parties in the year 1996-97 and

since the money for the purchase of this property had been

invested by their mother, in terms of this family arrangement it had

been agreed that the half of the suit property would be given to the

defendant. To give a final effect to this family settlement

Ex.DW-6/A had been executed.

11. All these contentions now raised before this Court had been

gone into in an indepth and deep detail by both the Courts below;

both the oral and documentary evidence had been appreciated. It

is settled position at law that this Court while exercising powers

under Section 100 of the Code of Civil Procedure cannot interfere

with findings of fact. Unless there is a perverse finding the hands

of this Court are tied. What is perverse, has also been defined in

various pronouncements. The Supreme Court in (2001) 1 SCC 501

Gaya Din Vs. Hamuman Prasad has defined the expression

"perverse" to mean a finding not supported by the evidence

brought on record or against the law or suffering from the vice of

procedural irregularity.

12. It is apparent and evident from the record that the findings in

the impugned judgment can in no manner be termed as perverse.

It is also not the case of the appellant that the evidence has been

ignored. There is no dispute to the proposition that if two views are

possible on the evidence adduced before the Court and the view

taken by the first Appellate Court could be different from the view

which this Court would have taken, would nevertheless then be no

ground to interfere in a second appeal.

13. The judgment of Kale (supra) has no application to the facts

of the instant case. It is an undisputed proposition that an oral

settlement between members of a family is legal and if proved it is

binding upon the parties; yet the question before the Court [in the

judgment of Kale (supra)] was whether a family settlement is

compulsorily registerable or not; that judgment had proceeded on

the assumption that there was a valid oral family arrangement

between the parties. The ratio of the said judgment is inapplicable

in the instant situation.

14. The substantial question of law is accordingly answered as

follows. The oral family settlement had not been proved; sale deed

Ex.PW-1/1 was the binding document evidencing the ownership of

the suit property in favour of the plaintiff. There is no merit in the

appeal; it is dismissed.

INDERMEET KAUR, J.

OCTOBER 07, 2010 ss/nandan