Sunil Kumar Rajput & Anr. vs Smt. Bhagwan Devi & Anr.
2011 Latest Caselaw 152 Del

S-4B
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment Reserved on: 07.01.2011
                                   Judgment Delivered on: 12.01.2011


+          RSA No.267-68/2006 & CM APPL. No.10919/2006



SUNIL KUMAR RAJPUT & ANR.
                                                   ...........Appellants
                       Through:     Mr.G.K. Sharma & Mr.Amit Chawla,
                                    Advocate.
                       Versus

SMT. BHAGWAN DEVI & ANR.       ..........Respondents
           Through: Mr.R.K. Shukla, 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 appeal has been directed against the impugned

judgment and decree dated 20.04.2006 which had allowed the

appeal and set aside the order of the executing court dated

30.8.2005. Vide judgment dated 30.8.2005, the objections of Smt.

Bhagwan Devi filed in the course of the execution proceedings had

been dismissed. The impugned judgment dated 20.04.2006 had

allowed the objections of the objector Bhagwan Devi thereby

dismissing the execution petition. This judgment is now in appeal

before this Court.

2. Briefly stated the factual matrix is as follows:-

(i) Plaintiff Faqir Chand had purchased the suit property

being No.33/27, Vishwas Nagar, Shahdara, Delhi as an

evacuee property on 23.12.1958. Allegation was that

in 1971 Devi Sahai (husband of objector Bhagwan Devi)

took illegal possession of the suit property. Suit for

possession was filed on 17.02.1972.

   (ii)      Suit was decreed on 27.11.1975.

   (iii)     First appeal under Section 96 of the Code of Civil

Procedure (hereinafter referred to as the Code) was

dismissed on 16.2.1976.

(iv) Second appeal was dismissed on 27.5.1976.

(v) In the course of these proceedings, the original plaintiff

Faqir chand died on 6.10.1985 leaving behind 3

daughters. They in turn transferred their share in the

said property to Virender Singh, Mahesh Chand and

Anil Kumar on 5.2.1988, who on 19.9.1994 sold the

property to Sunil Kumar Rajput who is now the

appellant before this Court.

(vi) Execution petition had been filed by Faqir Chand in his

lifetime. The objector was Bhagwan Devi. The

objections raised by Bhagwan Devi were that she is in

independent possession of the suit property and not

through her husband Devi Sahai. On the pleadings of

the parties in the execution petition the following issue

was framed:-

(1) Whether the objector is in possession of the plot

in suit in her own independent right? If so, its

effect? OPO

(a) The objector examined 4 witnesses in evidence.

The House Tax Inspector from the Municipal

Corporation of Delhi (MCD) was examined as OW1 who

had proved OW1/1 to OW1/4. OW1/1 is a demand

notice of the MCD dated 6.1.1970 issued in the name of

Bhagwan Devi. OW1/2 is a house tax bill for the year

1971-72 in the name of the objector. OW1/3 is a notice

dated 8.12.1969 issued by the MCD in the name of the

objector. OW1/4 dated 1.11.1976 is the bill evidencing

payment of property tax by Bhagwan Devi qua the suit

property.

(b) Second witness examined was OW2. He had

produced the postal cards OW2/1 - OW2/2 dt.

11.1.1960 and 22.1.1960 purportedly sent by him to

Bhagwan Devi. OW2/3 is a receipt dated 4.2.60 for

Rs.400/- evidencing the sale of buffalo in favour of the

objector.

(c) The objector was examined as OW3.

(d) OW4 had proved Ex. OW4/1 which is a complaint

dated 13.4.1951 bearing thumb impression of the

objector addressed to the Managing Officer, Custodian

of Evacuee Property, Jam Nagar, New Delhi.

(e) OW5/4, OW5/5 and OW5/6 were documents

produced by the objector purporting to evidence that

Devi Sahai, her husband was not residing with her in

the suit premises; Devi Sahai living at House No. V-49,

Village Ghonda, Silampur, Shahdara, Delhi.

(f) Per Contra the decree holder had produced the

the electoral rolls for the years 1971; 1975 and 1980

(Exhbits DHW3/1 to DHW3/3) evidencing the same

address of the objector Bhagwan Devi and her husband

Devi Sahai, i.e. in the suit property.

             (g)   Judgment     dated     30.8.2005         dismissed    the

             objections of Bhagwan Devi.

             (h)   The    impugned      judgment      had    reversed    this

finding holding that the executing court had not

appreciated the evidence produced by the objector in

its correct perspective. The objections of the objector

having been allowed the execution petition was

dismissed.

(vii) In another round of litigation, Bhagwan Devi had filed a

suit for injunction claiming herself to be in adverse

possession of the suit property which was also the

defence set up by her husband Devi Sahai in the

written statement which had filed in the present suit

proceedings. On 21.8.2002 this suit was dismissed

permitting the parties to raise these objections before

the executing court.

(viii) The present suit property is suit property bearing No.

27/33 Vishwas Nagar, Shahdara, Delhi which had

admittedly been purchased in the name of Faqir Chand;

his brother Amir Chand was the owner of adjoining

property i.e. property bearing No. 27/34 Vishwas

Nagar, Shahdara. Bhagwan Devi had also claimed

adverse possession of this property in proceedings

before the SDM, which plea had been dismissed on

27.7.1989. Her criminal revision filed against the order

of the S.D.M. had been dismissed on 28.8.1989.

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

impugned judgment is clearly an illegality and calls for

interference; Appellant/Plaintiff (claiming through Faqir Chand)

had got a decree in his favour for possession which had been

upheld not only by the first appellate court but also by the second

appellate court. The objections filed in the executing court by

Bhagwan Devi had been rightly dismissed as the documents which

had been filed by her were held to be manipulative; the court had

appreciated the fact that it is difficult to believe that Bhagwan Devi

did not know of the case which has been filed against her husband

Devi Sahai and, which he has been contesting continuously.

4. Arguments have been countered. It is submitted that the

impugned judgment had correctly appreciated the documentary

evidence led by the objector Bhagwan Devi and which findings call

for no interference.

5. This is a second appeal. After its admission, the following substantial question of law had arisen:

"Whether the finding in the impugned judgment dated 20.4.2006 reversing the finding of the Executing Court dated 30.8.2005 are perverse? If so, its effect?"

6. Record has been perused. The plaintiff through his

predecessor had filed a suit for possession against Devi Sahai who

is the husband of Bhagwan Devi. There is no dispute to this

relationship. In the written statement which had been filed by the

defendant, i.e. Bhagwan Sahai, he had set up the plea of adverse

possession claiming to be in possession of the suit property openly

and in hostility to its true owner twelve years prior to the date of

filing of the suit. Six issues had been framed by the Trial Court.

The title in the suit property qua plaintiff was proved through the

sale certificate Ex. PW2/1 dated 30.01.1961. The mutation was

proved through the testimony of PW-1 Hari Singh who had deposed

that on the strength of this sale certificate the mutation had been

effected in favour of the plaintiff Faqir Chand (predecessor of the

appellant). PW-2, the official from the Regional Settlement

Commissioner had corroborated the version of PW-1 endorsing the

sale certificate Ex. PW2/1 in favour of the plaintiff. So also was

the testimony of PW-4. Ex. PW2/1 dated 23.01.1959 was a letter

issued by the Settlement Commissioner to Faqir Chand confirming

his sale. PW-6, the Patwari had produced the summoned record

wherein he had deposed that upto 20.07.1962 the plot was entered

as a vacant plot in their record. In defence the defendant Devi

Sahai had produced the document Ex. D-1 evidencing purchase of

bricks on 2812.1959 through the version of DW-1 which version

the Court found dissatisfactory and was rejected. Suit of the

plaintiff was decreed.

7. This evidence was re-appreciated and confirmed in appeal.

8. The objector Bhagwan Devi had filed her affidavit in the High

Court in Civil Revision dated 13.09.1985 wherein she had averred

that she is aged 88 years , R/o House No.27/33-34, Vishwas Nagar,

Shahdara and the wife of Devi Sahai. Contention before the Court

today is that Bhagwan Sahai is living separately from her husband

and her husband resides in a separate property, i.e., in Village

Ghonda, Seelampur. On a specific query put to learned counsel for

the parties as to since when the parties are living separately and

not in the company of one another, there is no answer. The courts

below had correctly noted that it was a contentious litigation which

was being perused by Devi Sahai, the husband of Bhagwan Devi for

the last more than two decades. There being no evidence on

record to show that Bhagwan Devi in this intervening period was

living away from her husband, it is difficult to believe that

Bhagwan Devi was not aware of these proceedings. In fact, in the

facts noted supra even in the year 1985, objector had reiterated

the averment that she is the wife of Devi Sahai and living at the

suit property. If she was an estranged wife, she would not have

described herself as the wife of Devi Sahai. The objections filed

before the Executing Court in the year 1977 setting up the same

plea, i.e. of adverse possession which was the plea taken by her

husband in the written statement is merely an attempt to over-

reach the orders of the Court and to prolong the litigation. These

objections had been filed by her before the Executing Court on

29.01.1977. Bhagwan Devi overlooked the fact that even in the

year 1985 when she filed her affidavit she described herself as the

wife of Devi Sahai. The summon sent to Devi Sahai at the suit

property i.e. to Plot No.33, Block-27. Vishwas Nagar, Shahdara had

been returned unserved. The report of the process server is

relevant; it states that on 22.4.1972 Devi Sahai was not available

but his wife met him at the address and stated that her husband

had gone to village; it was not contended by the wife that her

husband was not a resident of this house. This was in the year

1972 (page 329 of the paper book). These documents clearly

establish that Bhagwan Devi and Devi Sahai up to year 1972 were

living together. In the proceedings before the trial court also the

defendant Devi Sahai had never taken the plea that he was not

living at this suit property; his defence being that he was in

adverse possession of the suit property.

9. This Court has examined the documents which had been set

up by Bhagwan Devi in the objections filed by her in the Executing

Court. OW-1 was Aman Singh, the House Tax Inspector from the

MCD. He has proved four documents all from the house tax

department of the MCD; demand notice is dated 06.1.1970, house

tax bill is for the year 1971-72; another notice of demand is dated

08.12.1969 and the bill dated 01.11.1976 is the payment of

property tax by Bhagwan Devi qua the suit property. These

documents are Ex.OW-1/1 to Ex.OW-1/4. In his cross-examination

OW-1 has stated that as per the record the notice for demand of

house tax was being issued in the name of objector since the year

1968; he admitted that the documents produced by him are not

pagenated; he denied the suggestion that these documents had

been manipulated or that they are forged.

10. This version of OW-1 has to be examined in the light of the

evidence which had been led before the trial court. Before the trial

judge the husband of the objector Devi Sahai had produced DW-3

in defence who was also a witness from the house tax department

of the MCD. He had produced notice Ex.DW-3/2 dated

31.3.1972 and the receipt Ex.DW3-/1 dated 29.6.1972 evidencing

payment of house tax by Devi Sahai of this suit property. The suit

property has been described by him as property having Municipal

No.500/18A, Vishwas Nagar, Shahdara and on oath he stated that

the record produced by him (Ex.DW-3/1 and Ex.DW-3/2) pertains to

this suit property. For the same property and for the same period

i.e. from 1969-72, both the objectors Bhagwan Devi and her

husband Devi Sahai had paid house tax. Obviously one or the other

or both were lying. In this bargain both had played a fraud upon

the court.

11. PW-1 had proved the mutation of this plot in favour of Faqir

Chand. PW-6 had deposed that this plot up to 20.7.1972 was lying

vacant. The versions of these witnesses show that up to 1972 the

plot was lying vacant. How could property tax be paid for a vacant

plot is also not explained.

12. OW-2 Ram Singh had written postcards dated 11.1.1960

and 22.1.1960 to Bhagwan Devi; he had also sold a buffalo to her

vide Ex. OW-2/3 on 04.2.1960. This witness had come into the

witness box on 14.8.1981 i.e. after a lapse of 21 years of the

execution of the aforenoted documents. It is unimaginable that

such innocuous documents having no bearing whatsoever would be

retained by the parties for two decades only to be produced in the

court 21 years later to set up a case which is nothing but false. In

his cross-examination, OW2 admitted that he was not a summoned

witness. He denied the suggestion that he is deposing falsely at

the behest of the object Bhagwan Devi.

13. Bhagwan Devi, the objector, had come into witness box as

OW-3; she had stated that she is the owner of the house; she had

constructed it 22 years ago. This witness had come into witness

box on 22.1.1982; as per her deposition she had built this house 22

years ago i.e. sometime in the year 1960. This is contrary to the

record of the Patwari whereas upto 20.7.1962 the suit property i.e.

Plot No.33, Block 27, Viswash Nagar, Shahdara was entered as a

vacant plot. Version of OW-3 is again contradicted by the

document dated 13.5.1959 Ex. OW-4/1 purportedly written by

Bhagwan Devi to the Managing Officer of the Rehabilitation

Department wherein she had stated that she is residing here since

1957; in this letter she has described this property as her house

meaning thereby it already stood constructed in the year 1957.

This document again throws negative light on the credibility of

OW-3. Deposition of Bhagwan Devi that she had constructed the

house in 1960 was falsified. She had further deposed that her

husband was living with his son. In her cross-examination she had

admitted that she has one daughter and seven sons. Before this

Court two of the sons of the Bhagwan Devi had appeared; the

younger son admitted that he was born in the year 1970. To a

specific query put by the Court as to since when his parents i.e.

Bhagwan Devi and Devi Sahai were living separately in separate

residence, he had no answer; he was evasive and in fact did not

want to answer any query put to him by the Court. On oath OW-3

(Bhagwan Devi) had admitted that she has not brought her ration

card; she denied the suggestion that the ration card had

deliberately been withheld as it bore the name of Devi Sahai.

14. OW-4 had produced this document Ex.OW4/1. In his cross-

examination he had admitted that there is no paging in the file

which he has produced. There is no further note of the office on

this noting; he could not identify the writing and signature of the

official on this document.

15. OW-5 was again a false witness. He had produced

documents Ex. OW-5/A to Ex. OW-5/5 purporting to evidence that

he had given a loan to Devi Sahi who was living in Village Ghonda,

Seelampur and not at the present address. Ex.OW-5/2 is dated

12.8.1971; Ex.OW-5/4 is dated 07.4.1971 addressed to Devi Sahai

at Village Ghonda. Falsity of this witness is clear from the fact that

when Devi Sahai had filed his written statement in the suit

proceedings on 12.7.1972, he had been served in the suit on the

suit property address i.e. House No.33, Block 27, Viswash Nagar,

Shahadara; it was never his contention that he was not living in the

suit property. The decree holder i.e. the plaintiff had produced the

electoral roll for the year 1971, 1975 and 1980 through DHW-3 i.e.

Ex. DHW-3/1 to DHW-3/3 showing that the residence of Bhagwan

Devi and Devi Sahai was in the suit property in the aforenoted

years.

16. All contentions raised by the objector must necessarily fail.

The reliance by the learned counsel for the respondent on the

judgment reported in 1970 RCR 1977 Brij Mohan Vs. Krishna

Wanti and 1870 RCR 71 Revti Devi Vs. Kishan Lal are both

misplaced. Both these judgments were rendered under the Delhi

Rent Control Act; whereas in the first case in proceedings under

Section 14(1)(b) of the Delhi Rent Control Act (hereinafter referred

to as „the DRC Act‟) it was held that the husband may be entitled to

live with his wife but the property acquired by the wife cannot be

said to be property acquired by the husband as the legal entity of

the two were different. In the second judgment, the question

which had arisen for decision was whether the acquisition of a

separate residence by the wife of the tenant is sufficient ground for

eviction of the tenant by the landlord under Section 14(1)(h) of the

DRCA. In no manner can the ratio of the said judgments be made

applicable to the present scenario.

17. This court is sitting in second appeal and can re-appreciate

facts only if the findings are perverse. The instant case is a fit case

where the Court is of the view that the findings in the impugned

judgment are perverse. There was no evidence before the Court

to draw a conclusion that the husband at any point of time was

living separately from his wife as was contended by the objector

Bhagwan Devi for the first time when she filed her objection in the

executing Court. In fact the defence of adverse possession set up

by her was verbatim the same defence which had been set up by

her husband in the trial proceedings. Her claim that she was living

separately and was separate from her husband was not proved.

The documents on record had held otherwise. The summons sent

to the husband in the year 1972 had been received by her wherein

the process server had noted her statement that her husband was

not in town; it was never contended by her that her husband was

not living at this address. The house land was vacant up to 1962 is

clear from the version of the Patwari PW6. Yet Bhagwan Devi on

oath deposed that she had constructed this suit land in the year

1960; her documentary evidence (OW-4/1 dated 13.5.1959) stated

that she was living in this house since 1957; she was not clear as to

when the house was constructed and since when she was in

occupation of the same. It is relevant to note that in the same

periods i.e.1971-72 both Bhagwan Devi and Devi Sahai i.e. the wife

and the husband had independently paid property tax for the same

property for the same period. The malafides and falsity of these

pleas were writ large in the versions of the witnesses adduced by

both of them. They were nothing but set-up and introduced

witnesses.

18. The parties have been relegated to a long drawn litigation.

In spite of the first round of litigation which had culminated in the

second appeal of Bhagwan Sahai having been dismissed, the

objections propounded by the Bhagwan Devi have continued right

up to 2010; litigation had commenced between the parties in 1972

i.e three decades ago. This case is a classical example of how the

litigants can misuse the process of law and prolong the suffering of

the other for decades together. The impugned judgment has upset

the findings of the trial court without any basis; it had relied upon

the documents set up by the objector without delving into

background and the details of the proceedings which were held in

the trial court and which had culminated in the present

proceedings. This was an illegal and perverse approach. Findings

in the impugned are liable to be set aside. Objections of the

objector Bhagwan Devi are dismissed.

19. Appeal is disposed of in the above terms.

INDERMEET KAUR, J.

JANUARY 12, 2011 nandan