Sarita Khanna vs Devinder Singh & Others
2011 Latest Caselaw 462 Del

A-9
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 27.01.2011


+            RSA No.25/2010

SARITA KHANNA                                  ...........Appellant
                        Through:    Mr. S.K. Duggal, Advocate.

                  Versus

DEVINDER SINGH & OTHERS                        ..........Respondent
                  Through:          Mr. B.D. Kaushik, 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

01.01.2010 which has endorsed the findings of the trial Judge

dated 28.04.2006 whereby the suit filed by Devinder Singh against

six defendants of whom the contesting defendant was Sarita

Khanna (defendant No. 1) seeking declaration and permanent

injunction to the effect that the decree dated 03.05.2000 passed in

Suit No. 220/1998 was obtained by fraud and collusion were

decreed. Suit No. 2201998 was a suit filed by Sarita Khanna

(defendant No. 1) against Rameshwari Devi widow of Chellu Ram

and other legal heirs including her sons who had been arrayed in

the present suit as defendants No. 3 to 6.

2 The plaintiff is stated to be the owner and in possession of

land measuring 209 square yards bearing No. 97-98 being a part of

Khasra No. 13, Qilla No. 26/1, Village Khureji Khas, New Delhi. He

had purchased this property from Ram Niwas Aggarwal (defendant

No. 2) vide sale documents i.e. GPA, Agreement to sell, Will,

Affidavit, Possession letter receipt all dated 31.08.2001 (Ex.

PW-1/A to Ex. PW-1/F) for a sum of Rs.1,80,000/-. Ram Niwas

Aggarwal vide similar documents Ex. PW-1/G to Ex. PW-1/K had

purchased this suit premises from Desh Raj on 21.10.1999. Desh

Raj had in turn purchased this suit land on 15.06.1984 vide

documents Ex. PW-1/L to Ex. PW-1/M from Prem Pal Arora. Prem

Pal Arora had purchased the suit land from Jai Pal vide documents

Ex. PW-1/P to Ex. PW-1/Q on 02.01.1973. Jai Pal had in turn

purchased this suit land from the earlier predecessor Ratan Lal

Gupta on 07.11.1966 vide documents proved as Ex. PW-1/R to Ex.

PW-1/S. Further contention was that Ram Niwas Aggarwal had

purchased this suit property from Aflatoon and Harpal on the basis

of an agreement to sell dated 26.02.1966 who were the recorded

owners in the revenue record. In 1984, Prem Pal Arora had

permitted Chellu Ram who was the father of defendants No. 3 to 6

and their mother Rameshwari Devi to look after the suit property.

This arrangement continued up to 2001 when the defendants were

asked to vacate the suit property. The defendants had assured Ram

Niwas Aggarwal (defendant No. 2) that they will vacate this suit

property within three months. On 31.08.2001, the plaintiff had

become the owner of the suit property in terms of Ex. PW-1/A to

Ex. PW-1/F which had been executed in his favour by Ram Niwas

Aggarwal. The plaintiff also took physical possession of the suit

property. The plaintiff was informed by defendants No. 3 to 6 that

on an earlier date i.e. 24.08.2001, defendant No. 2 along with the

Court Bailiff had gone to take the possession of the suit property

but it was resisted. It was then the plaintiff learnt that defendant

No. 1 Sarita Khanna had filed a suit bearing No. 220/1998 for

recovery of the suit property against defendants No. 3 to 6 wherein

on 03.05.2000 Rajesh (defendant No. 3) had made a statement on

behalf of himself and his other legal representatives to vacate the

suit property whereupon the suit of defendant No. 1 Sarita Khanna

i.e. Suit No. 220/1998 had been decreed. It was in pursuance of

this decree that Sarita Khanna had sought execution and gone to

the suit premises on 24.08.2001 for delivery of the suit property. It

is contended that this decree dated 03.05.2000 has been obtained

by fraud and the present suit has been filed seeking a declaration

to the said effect.

3 Defendant No. 1 was the only contesting defendant. Her

contention was that the present plaintiff i.e. Devinder Singh had

sought to be impleaded himself under Order 1 Rule 10 of the Code

of Civil Procedure (hereinafter referred to as the 'Code') in Suit

No. 220/1998 but his application was dismissed. Thereafter, even

in the execution proceedings pursuant to the decree dated

03.05.2000, the plaintiff had filed objections. It is submitted that

the documentary evidence on the basis of which the plaintiff is

claiming ownership in the suit property are forged and fabricated;

this is a collusion between the plaintiff and defendants No. 2 to 6

who wish to oust the defendant No. 1 who is entitled to the suit

property in terms of the decree dated 03.05.2000 which had been

passed in her favour.

4 The trial Judge had framed the following seven issues:-

1. Whether the defendant has obtained the decree dated 03.05.2000 in suit No. 220/1998 by fraud and collusion and therefore, be declared as null and void? OPP

2. Whether the plaintiff is without any right and interest in the suit property? OP D1

3. Whether the plaintiff is owner of the suit property in view of decree dated 03.05.2000 in suit No. 220/1998? OPP

4. Whether the suit is without cause of action? OP D1.

5. Whether the plaintiff is without possession of the suit property? OP D1

6. Whether the plaintiff has come to the court with clean hands? OP D1

7. Relief.

5 Oral and documentary evidence was led. On the basis of said

oral and documentary evidence, the Court had decreed the suit of

the plaintiff and had held that the decree dated 03.05.2000 passed

in Suit No. 220/1998 is null and void. Chain of documentary

evidence adduced by the plaintiff had inspired confidence. The

contention of the defendant No. 1 that he had purchased this suit

property from Tara Chand had not been proved. The Court had

noted that defendant No. 1 was not able to produce Tara Chand.

Tara Chand had in fact been produced as a witness by defendant

No. 2 and examined as DW-6. His contention was that he was never

the owner of the suit property and he does not know defendant No.

1 Sarita Khanna; contention of defendant No. 1 that she had

purchased this property from Tara Chand was refuted.

6 Defendant No. 3 i.e. Rajesh had also been examined as DW-5.

He had deposed that he along with his father, mother and siblings

had been permitted to stay in the suit property by Prem Pal Arora.

He had deposed on 03.05.2000 in Suit No. 220/1998 he had made a

statement before the Court on the asking of one Kuldeep Kumar

under coercion. Police complaints were made on 12.06.2001 and

28.06.2001 to the said effect.

7 All these facts had been adverted to by both the courts below

which are the two fact finding courts. The plaintiff had been able to

adduce documentary evidence to establish his ownership and title

to the suit property. The plea of defendant No. 1 that she had

purchased this property from Tara Chand was disbelieved in view

of the clear and categorical version of Tara Chand who was

examined as DW-6. Even otherwise, there was no documentary

evidence led by defendant No. 1 on this issue. Both the courts

below had held that the decree dated 03.05.2000 had been

obtained by collusion and was liable to be set aside.

8 This is a second appeal. It is yet it its admission stage. On

behalf of the appellant, it has been vehemently urged that a

substantial question of law has arisen as DW-5 Rajesh (defendant

No. 3) and DW-6 Tara Chand had deposed against the interest of

defendant No. 1; defendant No. 1 had every right to cross-examine

both DW-5 & DW-6 which opportunity had not been given to him

and this has raised a substantial question of law. Lengthy

arguments on this issue have been addressed. For this proposition,

reliance has been placed upon AIR 1978 Punjab & Haryan 319

Sadhu Singh Vs. Sant Narain Singh Sewadar & others and AIR

2003 Karnataka 293 M/s Ennen Castings (P) Ltd. Vs. M.M.

Sundaresh & Ors.

9 There is no dispute to this proposition. Section 138 of the

Evidence Act provides a right to an adversary party where the

party arrayed as a defendant in the suit had taken a contradictory

stand on a relevant and material issue; then the adversary party is

entitled for right of cross-examination. This right had been given to

the appellant/ defendant No. 1 and this is clear from the record.

DW-5 had been examined in the trial court on 15.04.2005. On that

date, the counsel for defendant No. 1 was not present and as such

inspite of opportunity having been afforded to defendant No. 1, he

did not cross-examine DW-5. Thereafter, an application to the said

effect was filed which was dismissed on 04.05.2005. Admittedly no

review or appeal had been filed against the order dated

04.05.2005. DW-6 Tara Chand was examined on 04.05.2005. On

the said date, an application had been filed by the present

appellant/ defendant No. 1 seeking opportunity to cross-examine

Tara Chand. His application was dismissed on 04.05.2005. He was

not aggrieved by the order; that is the reason why he did file any

review or appeal against the said order. Even in the grounds of

appeal filed before the first appellate Court, it was never his

grievance that he had not been permitted to cross-examine Tara

Chand.

10 These pleas cannot be raised at the second appeal stage. This

Court is not a third fact finding Court. The evidence had been

concluded in the court below and inspite of opportunity having

been afforded to defendant No. 1 to cross-examine DW-5, he did

not avail this opportunity. Qua DW-6 although his application was

dismissed on 04.05.2005 which was the same day on which DW-6

was examined in chief, yet the fact that he did not seek a review or

file appeal against the order shows that he was not aggrieved by

the said order. This was also the reason why this was not a grouse

in the grounds of appeal filed by him before the first appellate

court. No other argument has been urged.

No substantial question of law has arisen. Appeal is

dismissed.

CM No. 2383/2010 (for stay)

Since the main appeal has been dismissed, this application

has become infructuous.

INDERMEET KAUR, J.

JANUARY 27, 2011 a