Delhi High Court
Smt. Narvada And Anr. vs Sh. Bhauri Lal on 22 April, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.123/2011
% 22nd April, 2014
SMT. NARVADA AND ANR. ..... Appellants
Through: Mr. Hari Shankar, Advocate.
Versus
SH. BHAURI LAL ..... Respondent
Through: Mr. Naveen Kumar Goyal, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This second appeal is filed under Section 100 of Code of Civil
Procedure, 1908 (CPC) impugning the concurrent judgments of the courts
below; of the trial court dated 22.2.2010 and the first appellate court dated
20.4.2011; by which the suit of the respondent/plaintiff for declaration,
possession, mesne profits, and injunction was decreed.
2. The facts of the case are that the respondent/plaintiff pleaded
that he is the owner of the suit property being plot no.1/409, Trilok Puri and
which plot is situated in a jhugi jhopri colony. The respondent/plaintiff
pleaded that he was the allottee of the plot from DDA in the year 1976 and
when in the year 1988 he went to his village he gave possession of the
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property to his brother Sh. Girdhari Lal so as to look after the plot and also
gave the allotment slip to him so that Sh. Girdhari Lal can take ration card
etc from the suit property. It is pleaded that Sh. Girdhari Lal illegally sold
the suit plot and when confronted he said that he has sold the plot and the
respondent/plaintiff may do whatever he wants to do. The subject suit
thereafter came to be filed by the respondent/plaintiff against the
appellants/defendants. It may be noted for completion of narration that
appellant no.1 is the niece of the plaintiff i.e the respondent/plaintiff is the
real uncle of the appellant no.1. Appellant no.2 is the husband of the
appellant no.1.
3. The appellants filed their written statement and which is a very
curious written statement. In the written statement, ownership of the
respondent/plaintiff was denied but it was not stated who is the owner of the
suit property. In the written statement, it was also pleaded that the
appellants/defendants had purchased the property from its original owner,
however, not only who was the so called original owner was not stated, but
what was the documentation by which rights in the suit property were
purchased was also not stated. Appellant no.1 filed her affidavit by way of
evidence. As per this affidavit, the appellant no.1 claimed that she had
purchased the suit property from Sh. Girdhari Lal who is the real uncle of
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the appellant no.1 i.e the same Girdhari Lal to whom the respondent/plaintiff
had given possession of the suit property in the year 1988 because the
respondent/plaintiff had gone to his village. The affidavit by way of
evidence filed by the appellant no.1 also states that the suit property was
purchased for a valuable consideration of Rs.70,000/-, however in the
affidavit by way of evidence there is no reference to any document
whatsoever (including any date) by which the suit property was purchased
from Sh. Girdhari Lal.
4. Both the courts below have held that the suit for possession has
to be decreed and for which the following reasons have been given:-
(i) The suit property was allotted in the name of
respondent/plaintiff and the appellants/defendants besides not stating in their
written statement who was the owner from whom the suit property was
purchased even in the affidavit by way of evidence, it was only stated that
the suit property was purchased by the appellant no.1 for a consideration of
Rs.70,000/- from Sh. Girdhari Lal, but no documents whatsoever were filed
to show purchase of the plot from Sh. Girdhari Lal.
(ii) Even assuming that the appellant no.1 purchased the suit
property from Sh. Girdhari Lal, the purchase would be invalid because Sh.
Girdhari Lal was never the owner of the suit property. Sh. Girdhari Lal, as
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already stated above, is the uncle of the appellant no.1 and the brother of the
respondent/plaintiff and not the allottee/owner of the suit property.
5. The aforesaid facts show that the appellants/defendants firstly
did not state in their written statement who was the original owner from
whom the suit property was purchased, thereafter the so called person from
whom property was purchased, was named as Sh. Girdhari Lal in the
affidavit by way of evidence but no documents whatsoever were filed to
show purchase from Sh. Girdhari Lal and that too for a consideration of
Rs.70,000/-. In any case Sh. Girdhari Lal was not the owner of the suit
property so that he could have sold the suit property to the appellant no.1.
6. Learned counsel for the appellants has during the course of
arguments sought to refer the various documents filed alongwith a list dated
5.12.2011. Though these documents are not part of trial court record, I only
in the interest of equity and justice looked at the documents to find out as to
whether the appellants even have a modicum of a case of their ownership
rights claimed in the suit property. A reference to some of the documents
filed by the appellant shows that the same contain three documents being the
power of attorney, agreement to sell and the Will which are dated 27.8.2001
and by which the husband of the appellant no.1 i.e the appellant no.2 claims
to have purchased the suit property from the respondent/plaintiff. This
RSA 123/2011 Page 4 of 6
case/stand is now therefore a third stand/case i.e the suit property is
purchased not by the appellant no.1 but by the appellant no.2, and not from
Sh. Girdhari Lal but from the respondent/plaintiff itself. Clearly therefore
these documents are a link in the chain of events by which appellants are
endeavouring to continue their illegal stay in the suit property and which
was a plot and which was left in trust by the respondent/plaintiff with his
brother Sh. Girdhari Lal when the respondent/plaintiff went to his village in
the year 1988. I may note that there is not even a whisper of alleged
documents of 27.8.2001 either in the pleadings before the trial court or in the
evidence led before the trial court inasmuch as and as already stated above,
appellant no.1 claimed to be the owner of the suit property and not the
appellant no.2 and that too appellant no.1 claimed purchase from Sh.
Girdhari Lal and not that the appellant no.2 purchased from the
respondent/plaintiff by means of the documentation dated 27.8.2001.
7. The aforesaid facts show that there has been unholy collusion
between the plaintiff and Sh. Girdhari Lal, brother of the
respondent/plaintiff, and to whom the respondent/plaintiff entrusted the said
plot. Merely because the appellants have electricity and water connections
in their names in the suit property from around the year 1998 it will not
assist them because the same would only show that the appellants came into
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illegal possession of the suit property courtesy of Sh. Girdhari Lal.
Electricity and water connections therefore cannot create any rights in the
suit property and this will only show the illegal possession of the suit
property by the appellants/plaintiffs.
8. The suit has been filed in the year 2007 i.e well within the
period of limitation because the earlier documents by which the appellants
claimed possession would only be of the year 1999/2000.
9. In view of the above, no question of law, much less a
substantial question of law arises, for this appeal to be entertained under
Section 100 CPC. In fact, the appeal is a gross abuse of process of law on
account of the facts which have been detailed above and therefore the same
is dismissed with costs of Rs.30,000/- and which costs shall be paid within a
period of six weeks from today. I may note that Supreme Court in the case
of Ramrameshwari Devi & Ors. Vs Nirmala Devi & Ors. (2011) 8 SCC 249
has held that it is high time that in certain dishonest litigations appropriate
costs must be imposed. I am also empowered to impose costs in terms of
Volume V of the Punjab High Court Rules and Orders (as applicable to
Delhi) Chapter VI Part I Rule 15.
APRIL 22, 2014/Ne VALMIKI J. MEHTA, J.
