Babu Lal & Ors. vs Mahavir Singh @ Mahvir Prashad & ...
2011 Latest Caselaw 2304 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI


%                              Date of judgment: 29.4.2011


+                        R.S.A.No.164/2007

BABU LAL & ORS.                      ...........Appellant
                         Through:    Mr.Rohit Kumar,
                                     Advocate.

                   Versus

MAHAVIR SINGH @ MAHVIR PRASHAD & ORS.
                               ..........Respondent
                 Through: Mr.O.P.Malviya       &
                          Ms.Gitanjali   Malviya,
                          Advocates.

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 05.3.2007 which had endorsed the finding of the trial

judge dated 20.7.2005 whereby the suit filed by the plaintiff

Babu Lal seeking a declaration and permanent injunction to

the effect that the plaintiff is the owner of the property i.e.

DDA Flat No.109, Sunlight Colony (hereinafter referred to as

„the suit property‟) and the defendant be restrained from

interfering in the peaceful possession of the plaintiff had been

dismissed.

2. The case of the plaintiff as is evident is that she is in

possession of the aforenoted suit property; she is an illiterate

lady; she was a labour contractor at Tuglakabad Railway

Station. Plaintiff had married Nek Ram; out of the said

wedlock seven children had been born. Nek Ram‟s

whereabouts were not known for the last 16 years i.e. since

1967. Defendant no.1 in contact with the plaintiff about 15

years ago i.e. the year 1968; he being a railway employee

influenced the plaintiff and the parties thereafter got married.

At that time defendant no.1 did not disclose that he was

already a married man; he had been married to one Satyawati

and had children from the said marriage. This fact came to

the knowledge of the plaintiff only in the year 1981.

Defendant no.1 had played a fraud upon her with an ulterior

motive to grab her property. Plaintiff had given her cash and

ornaments worth `15000/- to the defendant no.1. Plaintiff

had paid `5000/- to defendant no.1 in the year 1971-72 for the

purchase of this property and thereafter and `9000/- at the

time when possession was given i.e. in the year 1974; she has

since then been residing in that property and paying monthly

installments of `157.55. Defendant no.1 had played a fraud

upon the plaintiff and purchased the aforenoted plot in the

name of Hme Lata i.e. her sister-in-law and later on it was

transferred in the name of Kaliash Chand, his brother-in-law;

defendant no.1 even refused to pay back the sum of

Rs.15,000/- to the plaintiff as also her ornaments. He has

also refused to look after the children which had been born

out of their marriage. On 11.7.1983 defendant called the

plaintiff for an amicable settlement; on reaching there she

was beaten by the defendant and his first wife. Under threat

and coercion the defendant no.1 obtained the thumb

impression of the plaintiff; pursuant to which a complaint was

lodged with the police. By way of the present suit plaintiff

had sought decree of declaration that the plaintiff is the

owner of the suit property; permanent injunction had also

been sought restraining the defendant from interfering in her

peaceful possession.

3. Defendants had denied this version of the plaintiff. It

was stated that the plaintiff was a tenant of defendant no.1;

she had paid `5000/- towards rent as she was a tenant since

06.3.1967 and the sum had been paid as rent @ `300/- per

month. Defendant no.1 was collecting rent on behalf of the

defendant no.2; plaintiff was a tenant of the defendant no.2.

Since 1980 she had stopped paying rent. On repeated

demands this false and frivolous suit had been filed against

the defendant. It is pointed out that in all records including

the ration card of the plaintiff the name of Nek Ram has been

shown as her husband.

4. From the pleadings of the parties, the following six

issues were framed:

"1. Whether the suit is bad for non joinder and mis joinder of necessary parties.

2. Whether the plaintiff is tenant in suit property as alleged? If so whether she is barred from claiming declaration as claimed in Pre.Objection no.3? OPD

3. Whether plaintiff is owner in possession of suit property since 1974? OPP

4. Whether plaintiff invested money in the property? OPP

5. Whether plaintiff is entitled for relief of declaration and permanent injunction? OPP

6. Relief."

5. Oral and documentary evidence was led between the

parties which included the statement of the plaintiff who had

examined herself as PW-1; seven witnesses were examined on

behalf of the defendant. The court had disbelieved the

version set up by the plaintiff; no details has been given. She

was held not entitled for any relief; suit was dismissed. This

was endorsed in first appeal.

6. This is a second appeal. It has been admitted and on

01.12.2010 the following substantial question of law was

formulated:

"Whether the findings in the impugned judgment dated 05.03.2007

are perverse? If so, its effect?"

7. On behalf of the appellant it has been urged that the

impugned judgment suffers from a perversity as the appellant

had clearly set up a case of a benami transaction; the court

had failed to take into account that the plaintiff had made

specific averments to the effect that she had made a payment

of `5000/- in the year 1971-72 to defendant no.1 which he had

paid as earnest money for the suit property; another sum of

`9000/- was paid by her to defendant no.1 in 1974 at the time

of allotment of the disputed property. These facts have not

been considered in the correct perspective. It is pointed out

that the defendants had failed to adduce evidence to show as

to who had made the payment for allotment of the suit

property; the plot although allotted in the name of defendant

no.2 yet it was out of cash proceeds made by the plaintiff to

defendant no.1. The impugned judgment suffers from a

perversity. It is liable to be set aside.

8. Arguments have been rebutted. It is pointed out that on

no account does the judgment calls for any interference. The

impugned judgment had re-appreciated the oral and

documentary evidence and had endorsed the finding of the

trial judge.

9. The case of the plaintiff is that she was married to

defendant no.1; her contention was that two children namely

Suresh and Meena were born from her wedlock from

defendant no.1; however, in the cross-examination she

admitted that the name of the father of Suresh and Meena as

per school record is Nek Ram (her first husband); she further

admitted that even in the voter list the name of her husband

was mentioned as Nek Ram; even in the complaint filed by

her before the Magistrate she had given her husband‟s name

as Nek Ram. The suit property was admittedly allotted in the

name of defendant no.2 whereafter it was transferred to

defendant no.3. Before the first appellate court the purported

installments of `157.51 that were being paid by the plaintiff

and receipt of the same had been produced which again

evidenced that these payments had been made on behalf of

defendant no.2; admittedly the house tax was also assessed in

the name of the defendant no.3. Testimony of DW-6 and

DW-7 was adverted to who had both deposed to the fact that

the plaintiff was a tenant in the suit premises. The court had

noted that the recitals of the plaintiff in her pleadings as also

the testimony on oath were vague; she did not have any idea

about the total cost of the suit property; how many

installments were paid and in what manner installments were

paid; she was totally ignorant of all dates; she had failed to

prove her submission that it was out of her funds that

defendant no.1 had purchased this property in the name of

defendant no.2. Apart from a bald statement on which no

credence was given there was no other evidence with the

plaintiff. The court had also noted that a complaint had been

made by the plaintiff against Mahavir Singh which had led to

the registration of an FIR under the provisions of Section

323/342 IPC; in this complaint also although the

plaintiff/complainant had averred that she had paid a sum of

`5000/- to Mahavir Singh (defendant no.1) yet it was not

mentioned that this sum of `5000/- had been paid for the

purchase or allotment of the suit property. All this was duly

considered by the first appeal court to arrive at the finding

that the plaintiff having been failed to prove her case; it was

rightly dismissed by the trial Judge. The claim of benami

nowhere stood proved by the plaintiff. In no manner can it be

said that this finding in the impugned judgment is perverse.

Concurrent findings of fact can be interfered in a second

appeal only if there is a perversity. No such perversity has

been pointed out. Substantial question of law is answered

accordingly in favour of the respondent and against the

appellant. Appeal has no merit. Dismissed.

INDERMEET KAUR, J.

APRIL 29, 2011 A