Smt.Bimla Devi vs Sh.Kanwar Singh & Ors.
2011 Latest Caselaw 1492 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 15.03.2011


+            RSA No.47/2011 & CM No.5277/2011



SMT.BIMLA DEVI                          ...........Appellant
                         Through: Mr.Dinesh Garg, Advocate.

                   Versus

SH.KANWAR SINGH & ORS.                   ..........Respondents.
                 Through:            Nemo.


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)

CM No.5278/2011 (for exemption)

Exemption is allowed subject to just exceptions.

RSA No.47/2011 & CM No.5277/2011

1. This appeal has impugned the judgment and decree dated

10.2.2011 which has endorsed the finding of the trial judge dated

14.7.2008 whereby the two suits filed by the two respective

plaintiffs i.e. Bimla Devi (Suit No.429/2007) and Karam Vir (Suit

No.430/2007) had suffered their fate. The suit of Bimla Devi had

been dismissed. The suit of Karam Vir had been decreed.

2. The suit No.429/2007 had been filed by the plaintiff Bimla

Devi. Her contention was that she is the owner and in possession

of one bigha and one biswas comprising of one room and a

surrounding boundary wall in Khasra No.1 in the Village Saboli,

Shahdara, Delhi. She had purchased this property from Rishal

Singh. Rishal Singh is the deceased father of Karam Vir (plaintiff

in Suit No.430/2007). It is averred that the defendants in collusion

of one another had raised building material near the suit property

to raise a construction and to dispossess the plaintiff. Suit for

permanent injunction was accordingly filed. Defendants had

disputed her claim. It was contended that the plot in question is

only 800 sq. yards comprising of only one room and a broken

boundary wall. Contention of the defendants (sons of deceased

Rishal Singh) is that their father had never sold the plot to Bimla

Devi. In 1992 their father Rishal Singh had filed an injunction suit

against the father of Bimla Devi namely Man Singh wherein he had

made a statement that he has no concern with this plot in question;

suit was accordingly withdrawn.

3. Suit No.430/2007 was filed by Karam Vir who has also been

threatened with dispossession qua Bimla Devi. He has also sought

a relief of permanent injunction. His contention is that he is the

owner and in possession of the said plot.

4. Proceedings under Section 145 of the Code of Criminal

Procedure (hereinafter referred to as 'the Cr.P.C.') had been

initiated on the complaint of Bimla Devi. Order dated 23.4.1999

had been passed by the SDM which was in favour of Bimla Devi.

Revision petition impugning the order of the SDM was dismissed;

petition under section 482 of the Cr.P.C. was also dismissed as

being not maintainable; it was held that the order under Section

145 of the Cr.P.C. is only temporary in nature and is operable till

the issue of possession is decided by the parties in separate civil

proceedings which were admittedly pending.

5. Both the suits i.e. Suit No.429/2007 and Suit No.430/2007

had been clubbed together. Two common issues had been framed;

they read as follows:

1. Whether the plaintiff is entitled for a decree of permanent as prayed for ?OPP

2. Relief.

6. Evidence was led by the respective parties. PW-1 had relied

upon an unregistered power of attorney and agreement to sell

dated 20.9.2007 purported to have been executed by Rishal Singh

in her favour. A registered receipt of the same date i.e. 20.9.2007

was also relied upon. These documents had been considered by the

trial judge coupled with testimony of PW-1 who had in her

deposition admitted that she had never lived in the suit property;

she is living in her matrimonial home; she had admitted that none

of her articles were lying there. The actual constructed area of the

plot was also unknown to Bimla Devi; at one time, she had

admitted that there is one room in the plot in question whereas at a

second point she had deposed that there are two rooms in the plot.

This wavering and contradictory stand of the Bimla Devi had also

weighed in the mind of the two fact finding courts below. The

order dated 23.4.1999 passed by the SDM in proceedings under

Section 145 of the Cr.P.C. had been scrutinized. Revision against

the said order had been dismissed. Proceedings under Section 482

of the Cr.P.C. had also been brought to a close by an observation

made by the High Court wherein it was expressed that the question

of possession is yet to be determined by the Civil Court; the order

of the SDM not being permanent in nature the issue of possession

would have to await the decision of the competent court.

7. It is also not in dispute and in fact it settled a position that a

decision by a Criminal Court is not binding on a civil court. The

proceedings under Section 145 of the Cr.P.C. are also summary in

nature.( AIR 2004 SC 115 Shanti Kumar Panda Vs Shakuntala

Devi).

8. Documents relied upon by Bimla Devi of which admittedly

the power of attorney and the agreement to sell were unregistered

coupled with the receipt which was a registered document could

not transfer title to Bimla Devi; moreover PW-1 had admitted that

she was never in possession of the suit property. She was not able

to prove that along with the contemporaneous execution of the

aforenoted documents physical possession of the suit property had

been handed over to her by Rishal Singh. These positive fact

findings had been returned that Bimla Devi in fact was never in

possession of the suit property.

9. The claim of Karam Vir was fortified by the evidence led by

him. He was the son of deceased Rishal Singh who was admittedly

the owner of the suit property from whom Bimla Devi had

purchased this suit land. It was correctly noted that the

proceedings under Section 145 of the Cr.P.C. are not binding on a

civil court. Karam Vir in support of his claim had produced

Ex.DW1/3 i.e. a copy of the Khatoni as also a copy of the order

dated 4.5.1992 passed in the erstwhile suit filed by Rishal Singh

(deceased father of Karam Vir) against Man Singh (predecessor of

Bimla Devi) wherein it had been admitted by Man Singh that he

has no connection with this suit property; on this premise Rishal

Singh had withdrawn his suit.

10. These are fact findings which has been gone in deep detail by

the two fact finding courts below. These findings of fact in no

manner can be said to be perverse.

11. Reliance by learned counsel for the appellant on the

judgments reported 2010(3) CCC 001 (SC) Dinesh Kumar Vs.

Yusuf Ali as also on 1010(4) RCR(Civil) Municipal Committee,

Hoshiarpur Vs. Punjab State Electricity Board are misplaced.

There is no dispute to the proposition that a second appeal is

maintainable where finding of the courts below are perverse. No

such perversity has been pointed out. There is no merit in the

appeal. Appeal as also pending application is dismissed in limine.

INDERMEET KAUR, J.

MARCH 15, 2011 nandan