Shri Som Dutt vs Smt. Sharma Devi & Anr.
2013 Latest Caselaw 3566 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         RFA 198/2009
%                                                            13.08.2013

      SHRI SOM DUTT                                   ..... Appellant
                          Through Mr. Kamal Gupta, Advocate for Ms.
                          Reeta Chaudhary, Advocate

                          versus

      SMT. SHARMA DEVI & ANR.                             ..... Respondents

Through None

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

Review Petition No. 352/2013 and CM Nos. 11079/2013, 11144/2013 (condonation of delay), 11082/2013 (rectification of title)

1. The length which some litigants go somehow or the other to keep a

false litigation alive is not unknown. The present case is one such case.

2. The review petitioner was the plaintiff in the trial court. Review

petitioner was the appellant in the present case because his suit was

dismissed by the judgment of the trial court dated 19.5.2009.

3. The appellant-plaintiff/review petitioner claims ownership of the

property being WZ-75, Village Keshopur, Delhi on the ground that the said

Review Petition No. 352/2013 in RFA 198/2009 Page 1 property belonged to the father of the appellant-plaintiff, and after the

father's death, the same devolved upon the appellant-plaintiff and his

brother Sh. Bhim Singh, late husband of the defendant No. 2/respondent No.

2.

4. The trial court as well as this Court while referring to the concerned

issue and the findings of facts held that plaintiff was not the owner for the

following reasons:

(i) There is no document on record which showed the father-Sh. Mool

Chand as the owner of the property;

(ii) Defendant No. 1 is the sister of the appellant-plaintiff. Defendant

No.1 executed registered sale deeds of the suit property in favour of the

defendant No.2-respondent No. 2 and who is the sister-in-law of the

defendant No.1-respondent No. 1 i. e widow of the brother of the respondent

No.1-defendant No. 1 and plaintiff/appellant.

(iii) Both the defendants filed a joint written statement inasmuch as

defendant No. 1 had executed registered sale deed in favour of the defendant

No. 2 and received valuable consideration, however, defendant No. 1

became dishonest during the pendency of the proceedings and sought to

wriggle out of the factum that she had executed registered sale deed in

Review Petition No. 352/2013 in RFA 198/2009 Page 2 favour of the defendant No. 2. Defendant No.1 thereafter took up a stand

hostile to defendant No.2 and hence she could not be believed.

5. All the arguments which were urged by the appellant were duly

considered in the judgment dated 25.01.2012. This Court, in addition to the

findings of the trial court, noted the arguments of the appellant in para 9 of

the judgment and found against the appellant with respect to such arguments

in para 10 of the judgment and which para 10 reads as under :

"10. In my opinion, none of the arguments as advanced on behalf of the appellant have any weight whatsoever. The first argument is misconceived because surely even in villages there are revenue records which show ownership with respect to the lands in the village, whether the same be an agricultural land or lal dora on residential land. Further even assuming for the sake of arguments that what is stated by the appellant/plaintiff is correct, the fact of the matter is that for 18 long years the suit property continued to be shown in the ownership of defendant No.1 and therefore Section 41 of the Transfer of Property Act, 1882 gives a complete protection to defendant No.2 with respect to the title which she has derived by means of registered sale deeds dated 28.4.1992 after paying valuable consideration. The argument that the sale deeds were executed out of an emotional act on the death of husband of the defendant No.2, is an argument of desperation inasmuch as, there is no such pleading or any issue framed accordingly in the trial Court.

Also no suit was filed by defendant No.1 to cancel the sale deeds on the ground that they were executed in an emotional moment only. On the aspect/issue that no ownership documents were shown by defendant No.1/respondent No.1, again this argument is wholly without any substance, because it was the appellant who was the plaintiff in the trial Court and it is upon the plaintiff to prove his case that the suit property

Review Petition No. 352/2013 in RFA 198/2009 Page 3 belonged to Sh. Mool Chand i.e. the father. Obviously, the appellant cannot shift the onus of the issue of ownership upon defendant No.2/respondent No.2 inasmuch as a person cannot be asked to prove negative and to lead evidence that actually defendant No.1 was not the owner. Also, the factum of the property existing in the property tax records for as long as 18 years leaves no manner of doubt that defendant No.1 as per the records is the owner, inasmuch as, even assuming there are no title deeds in favour of Sh. Mool Chand, yet, there is also no other document referred to by the appellant to show that late Sh. Mool Chand was the owner of the suit property."

6. This Court as also the trial court arrived at an additional finding that a

suit for declaration simplicitor does not lie once the plaintiff was not in a

position and, therefore, the suit was also rightly dismissed in view of Section

34 of the Specific Relief Act, 1963.

7. This Court also has relied upon the provision of Section 41 of the

Transfer of Property Act, 1882, and which pertains to transfer by apparent

owner i. e. defendant No. 1 in favour of the defendant No. 2 and which

action in law conveys valid title. This Court also noted the unnecessary

harassment which is being caused to the widow/defendant No. 2.

8. The only ground which has been urged before me is that the appellant

had given documents with respect to the LIC policy, Electricity Bills and

Ration Card of the appellant-plaintiff as regards the suit property to his

counsel and which were not filed. The object of course in this regard is to

Review Petition No. 352/2013 in RFA 198/2009 Page 4 show that appellant-plaintiff claims ownership of the suit property.

9. The review petition is wholly misconceived and abuse of process of

law for the following reasons:

(i) Neither before the trial court nor before deciding this RFA on

25.01.2012 documents which are now sought to be relied upon were filed. It

is not permissible that there is complete negligence by a litigant and after his

case is dismissed he wakes up and seeks to file documents.

(ii) Even if we take into account the new documents which are the LIC

policy notice, Ration Card and the Electricity Bill yet these documents

would only prove the factum of the plaintiff living in the property and not of

ownership of the appellant-plaintiff or of the father-Mool Chand. Even if

these documents are considered, the other findings which show that the late

father-Sh. Mool Chand was never the owner and the appellant-plaintiff was

also not owner are not displaced.

10. I may note that an SLP was filed in the Supreme Court against the

judgment of this Court dated 25.01.2012 and which was also dismissed. A

review petition filed before the Supreme Court on the same ground of

additional documents was withdrawn. It is thereafter that this review

petition is filed. No doubt judgments of the Supreme Court say that when

Review Petition No. 352/2013 in RFA 198/2009 Page 5 SLP is dismissed in limini review petition can be filed, however, the facts of

the present case show that this review petition is a gross abuse of process of

law.

11. In view of the above, this review petition and all pending applications

are dismissed with costs of `50,000/-. This costs of ` 50,000/- be paid to

the Delhi High Court Legal Services Committee. Costs be deposited within

a period of four weeks from today. If the costs are not paid, the Registrar

General of this Court will be entitled to recover the costs as arrears of land

revenues.

12. List before the Registrar General on 7th October, 2013 for verifying

deposit of costs and if the costs are not deposited, the Registrar General of

this Court may initiate action in terms of today's order.

VALMIKI J. MEHTA, J

AUGUST 13, 2013 godara

Review Petition No. 352/2013 in RFA 198/2009 Page 6