Bhagwat Parshad Aggarwal vs Hans Raj Banga (Deceased) & Anr.
2012 Latest Caselaw 2969 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           Ex. S.A.No.3/2012

%                                                            4th May, 2012

BHAGWAT PARSHAD AGGARWAL                  ..... Appellant
                   Through: Appellant in person with                         Mr.
                            Rajinder Singh, Advocate.
            versus

HANS RAJ BANGA (DECEASED) & ANR.         ..... Respondents

Through: Mr. Seeraj Baggar, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Since the appellant in this case is the counsel who appears in

this Court, considering the facts of the present case, at the outset, I put it to

the counsel for the appellant who is appearing in person as to whether he

wanted time to vacate the premises. The matter was passed over once. The

matter was passed over again. The appellant states that he seeks to argue

the appeal on merits. I have therefore heard the appellant on merits in this

Execution Second Appeal (ESA).

2. This ESA impugns two orders of the Courts below i.e. of the

first Court dated 2.7.2010 and of the appellate Court dated 6.3.2012

whereby the objections of the appellant, and who is the real brother of the

defendant/Judgment Debtor have been dismissed. It may be relevant to

state that the suit for possession which was filed by the respondent

No.1/plaintiff/Decree Holder went right upto the Supreme Court and the

Supreme Court vide its judgment dated 29.4.2005 held the respondent No.1

to be the owner of the suit property. The Supreme Court also held that

father namly Sh. Bhagwan Das, of the Judgment Debtor and who is also the

father of the present objector/appellant was not a tenant in the suit property

as he had failed to exercise his rights of tenant by failing in his obligations

to pay the rent.

3. The appellant argued before me in this second appeal, which

cannot be entertained unless there is a substantial question of law, the

following points:-

(i) The respondent No.1 is not the owner of the property

inasmuch as fraud has been played upon the Government and since the

respondent No.1 is not the owner of the suit property, judgment and decree

which was passed in favour of the respondent No.1/decree-holder/plaintiff

dated 29.4.2005 is obtained by fraud, and hence not binding. I may note

that this judgment dated 29.4.2005 is the judgment of the Supreme Court

which has been referred to above. I may also mention that a review was

preferred against the judgment of the Supreme Court dated 29.4.2005 and

which was dismissed by the Supreme Court vide order dated 17.8.2005.

(ii) The father of the appellant was in fact the tenant and therefore

the appellant is not liable to be evicted from the suit premises as he has

inherited the tenancy rights from his father.

4. Before making observations on the arguments as urged on

behalf of the appellant, one has to make remarks as to how judicial process

is abused in this country by unscrupulous litigants. The judgment and

decree in favour of the respondents/plaintiffs/decree holders became final

over seven years back, however, till date the respondents/plaintiffs/decree

holders have not been successful in obtaining possession. The judgment of

the Supreme Court dated 29.4.2005 shows that there were two previous

litigations. The first litigation was when before the Settlement

Commissioner under the Displaced Persons (Compensation and

Rehabilitation Act) 1954, appellant, appellant's mother and his brother i.e.

defendant/Judgment Debtor raised objections to dispute the title of the

respondent No.1/plaintiff. The appellant, the Judgment Debtor and their

mother were not successful before the Settlement Commissioner and the

proceedings attained finality when the challenge by the appellant,

Judgment Debtor and their mother in this Court by way of a writ petition

filed was dismissed on 9.4.1979. This was therefore one endeavour over a

period of time to cast cloud on the title of the respondent No.1/plaintiff. I

am informed by the counsel for the respondents that order of this Court

dismissing the writ petition was also challenged in the Supreme Court and

the Civil Appeal No.615/1982 was withdrawn on 13.7.1990. The second

litigation was the subject suit which has been decreed in favour of the

respondent No.1/plaintiff for possession by the highest Court on the land

on 29.4.2005 and where once again challenge to the title of the respondent

No.1/plaintiff was dismissed. As already stated, the Supreme Court upheld

the ownership of the respondent No.1/plaintiff of the suit premises and

dismissed the challenge to the title raised by the Judgment

Debtor/defendant and who is none other than the real brother of the present

appellant.

5. Obviously, therefore the family of the appellant has been

endeavouring to somehow or the other cast cloud on the title of the

respondent/plaintiff since the year 1960 i.e. for over 50 years but it has

been unsuccessful. The objections to execution which have been dismissed

by the two courts below is the third litigation challenging the title of the

respondent/plaintiff.

6. Let me now turn to the objections which have been raised on

behalf of the appellant. The appellant contended that the respondent

No.1/plaintiff is guilty of obtaining judgment of the Supreme Court dated

29.4.2005 by fraud inasmuch as the respondent No.1/plaintiff is not the

owner of the property and the property is not an evacuee property. I am

amazed at this argument as the same is nothing but old wine in a new

bottle. As already stated one set of litigation was dismissed right till the

Supreme Court when the Civil Appeal No.615/1982 was withdrawn on

13.7.1990. Again this issue of lack of ownership of the respondent No.1 of

the suit property was taken till the Supreme Court in the subject suit and

the Supreme Court held in favour of the respondent/plaintiff by decreeing

the suit of the respondent/plaintiff. When the government, the owner which

transferred property to the respondent way back is not objecting, how can

the appellant herein seek to do the same merely by uttering a mantra of

'fraud'. I therefore hold that there is no substantial question of law

involved for the appellant even to contend, and which is accordingly

declined, that there arises a substantial question of law as to challenge the

ownership rights of the respondents/plaintiffs. In fact, if I accept the

argument as urged on behalf of the appellant, then effectively I will have

to sit in appeal over the judgment of the Supreme Court dated 29.4.2005

which has held the respondent No.1/plaintiff as the owner of the suit

property after a long drawn out contest. I therefore refuse to go into the

issue of challenge to the ownership of the respondent No.1/plaintiff. I may

for the sake of record, at this stage, mention that the brother of the

appellant i.e. the Judgment Debtor even after the judgment of the Supreme

Court, has filed a suit alleging fraud in obtaining the judgment from the

Supreme Court on 29.4.2005, and the fraud being that the

respondent/plaintiff was not the owner of the suit property. That suit is

pending but no interim orders have been passed therein.

7. So far as the second objection of the father of the appellant

and the Judgment Debtor becoming the tenant of the property, once again

this issue is squarely covered by the judgment of the Supreme Court dated

29.4.2005 where the plea urged on behalf of the Judgment

Debtor/defendant was dismissed and it was held that father of the present

appellant and the Judgment Debtor, namely, Sh. Bhagwan Dass had no

tenancy rights to the suit property. In fact, I am informed that the appellant

herein had argued this matter personally in the Supreme Court appearing as

a lawyer for his brother/Judgment Debtor/defendant.

8. I may note that though a judgment may not be inter parties and

yet the same is binding on a person who is not a party to the earlier

litigation when the issue of title is decided in the earlier litigation. Two

Division Benches of the Supreme Court, of four Judges and three Judges,

in the cases of Sital Das Vs. Sant Ram and Ors. AIR 1954 SC 606 and

Shrinivas Krishnarao Kango Vs. Narayan Devji Kango & Ors. AIR 1954

SC 379 have so held that a judgment which holds that a person is an

owner, such a judgment is very much admissible in evidence to show

assertion of title inasmuch as the judgment is a transaction pertaining to the

subject matter of the dispute under Section 13 of the Indian Evidence Act,

1872. In my opinion, this is another reason to hold that respondent

No.1/plaintiff is owner of the subject property, and the challenge which is

led by the appellant/objector is without any basis.

9. A second appeal is only entertained if there arises a substantial

question of law. The present second appeal, in view of the facts of the

case, is an endeavour to overreach the Court. Ordinarily applying the ratio

of the judgment of the Supreme Court in the case of Ramrameshwari Devi

and Others v. Nirmala Devi and Others (2011) 8 SCC 249 I would have

imposed actual costs on the appellant as I have the power to impose actual

costs by virtue of Volume V of the Punjab High Court Rules and Orders

(as applicable to Delhi) Chapter VI Part I Rule 15 but I refrain to do so in

of course a very illusory hope that the appellant will still not contest further

and hand over possession of the suit property to the respondent

No.1/plaintiff/Decree Holder.

10. Appeal is accordingly dismissed, leaving the parties to bear

their own costs. The Executing Court will ensure that warrants of

possession with respect to the suit property i.e. the property against which a

decree has been upheld right till the Supreme Court, is executed forthwith

and there is no further delay caused in execution of the judgment and

decree of the Supreme Court dated 29.4.2005. The respondent

No.1/plaintiff is entitled to file an affidavit mentioning the factum of

dismissal of this appeal of the appellant to the two orders of the Courts

below dismissing the objections before the Executing Court where the

execution proceedings are stated to be listed tomorrow.

MAY 04, 2012                                  VALMIKI J. MEHTA, J
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