Savitri Devi vs Lal Chand
2014 Latest Caselaw 426 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   RSA 201/2012 & CM No. 21220/2012 (stay)

%                                              23rd January, 2014

SAVITRI DEVI                                               ......Appellant
                          Through:       Mr. Sonal Sinha, Advocate.


                          VERSUS

LAL CHAND                                                   ...... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. The regular second appeal impugns the concurrent judgments of the

courts below; of the trial court dated 12.10.2010 and the appellate court

dated 11.9.2012; by which the suit of the present appellant( plaintiff in the

trial court) for mandatory injunction and damages has been dismissed.

2. Dispute in the present case is with respect to the property no.C-1/33,

admeasuring 50 sq. yds. situated on Kasara No. 305, New Ashok Nagar,

Village Chilla, Saronda Bangar, Shahdara, Delhi. The case of the appellant-

plaintiff is that she transferred rights in the suit property to the defendant by

means of the documentation dated 4.10.93 being the Agreement to Sell,

Power of Attorney etc against valuable consideration and possession was

also delivered to the respondent-defendant, however, appellant-plaintiff

claims that within two hours of the transfer of the rights in the suit property

to the respondent-defendant, the respondent-defendant executed similar

documents being the Agreement to Sell, Power of Attorney etc by re-

transferring the property in favour of the appellant-plaintiff. The subject suit

therefore came to be filed claiming rights in the suit property by seeking

mandatory injunction and damages.

3(i) Learned counsel for the appellant is correct in arguing that the

appellate court has fallen into an error in only examining the issue that the

husband of the appellant-plaintiff was not competent to appear as an attorney

inasmuch as the appellant-plaintiff could have appeared through an attorney

who had knowledge of the facts. It is argued that appellate court only on

this single basis has dismissed the appeal, although, the trial court had

framed and decided various issues and had pronounced upon the same.

(ii) However, even if, I accept the argument urged on behalf of the

appellant, I need not remand the case since I can exercise my powers under

Order 41 Rule 24 CPC read with Order 42 Rule 1 CPC which states that

procedure in a second appeal is the same as the procedure in the first appeal.

Order 41 Rule 24 provides that once evidence on record is sufficient, it is not

necessary that the case be remanded back and the appellate court is entitled

to dispose of the suit and appeal on merits. In the present case, since the

trial court has pronounced upon all issues, I, in exercise of powers under

Order 41 Rule 24 read with Order 42 Rule 1 CPC, am proceeding to hear the

present second appeal on merits.

4. Before I advert to the arguments urged on behalf of the appellant-

plaintiff, it is necessary to refer to the conclusions which have been arrived

at by the trial court that the alleged reverse documentation executed after 2

hours of the first set of documentation in favour of the appellant-plaintiff to

claim that property has been re-transferred back to her is a false case of the

appellant/plaintiff. These conclusions are:-

(i) If really, the appellant-plaintiff had been re-conveyed the suit property

within 2 hours of having transferred the same to the respondent-defendant on

4.10.1993, the appellant-plaintiff would not have waited for 10 years to file

the subject suit. The case of 'license' as set up by the appellant-plaintiff has

been disbelieved. Trial court also notes in this regard that within this period,

the respondent-defendant obtained electricity and water connection in his

name and also paid the bills with respect to the same.

(ii) If the first set of documentation dated 4.10.1993 in favour of

respondent-defendant is not to operate then, actually it is a cancellation deed

of the first set of documents which would have been executed and not that

fresh set of documents would have been executed transferring rights in the

suit property to the appellant-plaintiff.

(iii) It was curious that the serial number of the stamp papers by which the

appellant-plaintiff claims re-transfer of property back to her are continuous

serial numbers of the stamp papers by which those documents were executed

by which rights in the suit property were first transferred to the respondent-

defendant taken with the fact that it was not conceivable that the same stamp

vendor in the meanwhile would have done no business of selling of further

stamp papers except those sold for the appellant-plaintiff by which rights in

the suit property were transferred to the respondent-defendant.

(iv) Signatures of the respondent-defendant on the alleged

documentation dated 4.10.1993 in favour of the appellant-plaintiff have been

concluded to be not of the respondent-defendant and these documents

executed by respondent-defendant in favour of the appellant-plaintiff have

been found to be forged and fabricated documents.

The appellant-plaintiff did not lead evidence of any handwriting

expert to show that the signatures on the documentation dated 4.10.1993

relied upon by the appellant-plaintiff are the same as those appearing on the

admitted documentation of the same date by which rights in the suit property

were transferred in favour of the respondent-defendant by the appellant-

plaintiff.

5. Learned counsel for the appellant very strenuously argued the

following points before this Court:-

(i) Trial court has committed an illegality inasmuch it is illogical for the

trial court to hold that the documentation in favour of the appellant-plaintiff

by the respondent-defendant are not valid because it is only the respondent-

defendant who has signed the subsequent set of documentation and that even

the appellant-plaintiff ought to have signed these documents if they were to

be genuine. It is argued that to transfer rights it was enough if the

documents executed in favour of the appellant/plaintiff were signed only by

the respondent/defendant.

(ii) There is no cross-examination of the appellant-plaintiff nor any

suggestion given that the subsequent documentation dated 4.10.1993

executed in favour of appellant/plaintiff were forged and fabricated

documents.

6(i) In my opinion, both the arguments urged on behalf of the appellants

are incorrect. Re-appreciation of evidence and re-appreciation of findings of

facts when two conclusions are possible, cannot be said to be a substantial

question of law. Even assuming that I am re-apprising the findings and

conclusions of the trial court and which I am doing, I still am of the opinion

and hold that there is absolutely no illegality or perversity in the findings and

conclusions of the trial court by which it is held that the rights in the suit

property were not re-transferred to the appellant-plaintiff as claimed by her.

I have already reproduced above the relevant conclusions of the trial court,

and though some of the conclusions reproduced above may not be so

categorically stated with that much clarity by the trial Court, reading of the

trial court's judgment does show that these conclusions which have been

stated above, do emerge against the appellant-plaintiff from the record of

the trial court.

(ii) Even if I take the fact that trial court has wrongly arrived at a

conclusion that subsequent set of documentation must fail because they are

not signed by the appellant-plaintiff, yet, even ignoring that finding, I cannot

agree that the other conclusions of the trial court still will not arise from the

record of the trial court and by which the suit rightly stands dismissed. In

addition to the conclusion no.(ii), which I have given above, the trial court

has also held that there is no reason for the appellant-plaintiff to have filed a

suit after 10 years, and allow the respondent-defendant to continue in

possession for 10 years, I note that if the appellant-plaintiff could have

continued as the owner, then, the appellant-plaintiff would have continued

to pay property taxes of the suit property for this period of 10 years from

execution of the documents in 1993 till the suit was filed in the year 2004

and would have accordingly filed receipts of payment of property taxes, but

admittedly the appellant/plaintiff has not done so.

(iii) Also the second argument urged on behalf of the appellant does not

merit acceptance because not putting of a suggestion to a witness or not

cross-examining the witness is only one of the aspects which is to be taken

in totality alongwith the entire evidence which is led in the case and once

conclusion which emerge from the entire evidence led in the case shows that

the alleged documents in favour of the appellant-plaintiff are forged and

fabricated as was the case of the respondent-defendant, merely because no

cross examination was done at this aspect and no such suggestion to the

husband of the plaintiff who appeared as witness, in my opinion is not in

itself sufficient in the facts of the present case to set aside the other

conclusions and the judgments of the courts below.

7. In view of the above, there is no merit in the appeal, and the same is

therefore dismissed, leaving the parties to bear their own costs.

JANUARY 23, 2014                              VALMIKI J. MEHTA, J.
ib