Gurpreet Kaur And Ors. vs Harjeet Kaur
2014 Latest Caselaw 461 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  RSA 238/2013 & CM Nos. 16559-16560/2013

%                                                         24th January, 2014

GURPREET KAUR AND ORS.                               ......Appellants
                Through:                 Mr. A.K. Tripathi, Advocate


                          VERSUS

HARJEET KAUR                                            ...... Respondent

                          Through:       Mr. Roop Ram, Advocate

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

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

courts below; of the trial court dated 5.2.2013 and the Appellate Court dated

9.10.2013; decreeing the suit for possession filed by the respondent-plaintiff

with respect to the suit property B-46, East Krishna Nagar, Delhi -110051

situated at plot admeasuring 156 sq. yards.

2. As per the plaint filed by the respondent/plaintiff in the trial court, the

respondent-plaintiff stated that one Sh. Sarpal Singh husband of appellant

no.1/defendant no.1 was requested by the husband of the plaintiff to take

care and look after the suit property, and for which purpose the possession of

the suit property was with the husband of the defendant no. 1/appellant no.

1. It was further stated in that plaint that when Sh. Narender Singh husband

of the respondent-plaintiff, who was the owner, expired, the respondent-

plaintiff requested the appellants-defendants to vacate the suit property, but

they refused to do so. The subject suit for possession and mesne profits

therefore came to be filed.

3. Appellants-defendants filed a written statement and stated that they

are owners in possession of the suit property for more than 35 years and the

suit is barred by limitation. Appellants-defendants also challenged the

pecuniary jurisdiction of the court claiming that the value of the suit

property was more than Rs. 60 lakhs. Appellants-defendants also pleaded

that Sh. Narender Singh, who was the husband of the plaintiff, on 24.4.2000

sold 52 sq. yards of the suit property to Sh. Sarpal Singh, who was the

husband of the defendant no.1/appellant no. 1 and therefore

respondent/plaintiff is not entitled to possession. It was further pleaded in

the written statement that another portion of 54 sq. yards was sold by Sh.

Narender Singh-husband of the plaintiff to the brother-in-law of the

defendant no. 2, namely, Sh. Gurdeep Singh in the year 2001. The

ownership of the suit property of the plaintiff was denied and it was denied

that the defendants are liable to vacate the suit property.

4. Both the courts below have held that the respondent-plaintiff is the

owner of the suit property and is entitled to possession and mesne profits

inasmuch as the appellants-defendants are found to have no right to the suit

property. The courts below have disbelieved the stand of the appellants-

defendants that 52 sq. yards of the suit property allegedly was sold by the

husband of the respondent/plaintiff to Sh. Sarpal Singh by a set of sale

documents - General Power of Attorney Ex. DW-2/1, Will Ex. DW-2/2,

receipt Ex. DW-2/3 and affidavit Ex. DW-2/4 for an alleged sale

consideration of Rs. 50,000/-. Since these documents are not valid therefore

the sale deed Ex. DW-1/1 consequently executed in favour of the defendant

no. 1 on the strength of General Power of Attorney Ex. DW-2/1 has also

been held to be of no effect. In reaching this conclusion it is noted by the

courts below that the General Power of Attorney Ex. DW-2/1 relied upon by

the appellants-defendants is a fabricated document because this General

Power of Attorney dated 24.4.2000 was executed by the husband of the

respondent/plaintiff, inasmuch as if the husband of the respondent-plaintiff

had wanted to execute a General Power of Attorney in favour of Sh. Sarpal

Singh, husband of appellant no. 1/defendant no. 1, then, he would have also

registered the said General Power of Attorney because another General

Power of Attorney Ex. PW-1/H was registered by the husband of the

respondent-plaintiff in favour of the respondent-plaintiff on the next date i.e.

25.4.2000. Thus, General Power of Attorney was executed on 24.4.2000

and registered on 25.4.2000 and, therefore it has been held by the Courts

below that it could not be that a General Power of Attorney Ex.DW-2/1

could have been executed by the appellant no. 1 on 24.4.2000 and which is

admittedly not registered.

5. To the above aspects, I must note that no proof has been filed on

behalf of the appellants before the trial court as to how they had amounts

with them, and what was the source of income to pay the alleged

consideration of Rs. 50,000/- for executing of the documents Ex. DW-2/1 to

Ex. DW-2/4 by husband of the respondent/plaintiff in favour of Sh. Sarpal

Singh, husband of appellant no. 1. I also during the course of hearing of this

appeal put it to counsel for the appellants that if the appellants were really

the owners then from the year 2000 to the year 2008 whether the appellants-

defendants had sought mutation of the property in the property tax

department, but to this query, no answer was forthcoming. Similarly, a

question was put that whether to any public authority husband of the

appellant no. 1, namely Sh. Sarpal Singh, ever showed himself to be owner

of the property; and again to this query also no answer was forthcoming. In

my opinion, valuable rights in an immovable property and ownership of the

same in favour of the respondent-plaintiff cannot be got destroyed by means

of alleged documentation as relied upon by the appellants-defendants,

especially when taken with the incredulous evidence led in this regard by the

appellants/defendants.

6. On behalf of the appellants it was firstly argued that the courts below

had no pecuniary jurisdiction and, therefore, the impugned judgments have

to be set aside. This argument is without any basis and it will suffice if I

refer to the discussion given by the trial court with respect to this argument

and which is contained in paras 57 to 64 of the impugned judgment and

which rightly hold that no evidence has been led by the defendants and the

market value of the suit property in the year 2000 was Rs. 1 lakh as admitted

by DW-1, and therefore, there would be nothing wrong in taking the suit

valued at Rs. 2 lakhs as in 2008. These paras 57 to 64 read as under :

"Issues no. 1

57. The question to be answered is as to whether the suit has not been properly valued for the purpose of court fees and jurisdiction.

58. The plaintiff has valued the suit for the purpose of court fees and jurisdiction at Rs. 2 lacs.

59. The defendants on the other hand have contended that the value of the suit property was Rs. 60 lacs. However no positive Civil Suit no: 1233/08 Page No: 27/34evidence was led by the defendants on this count.

60. DW-1 has in fact stated in his cross examination that he cannot tell the market value of the suit property in the year 2005. DW 1 has further stated in his cross examination that his mother paid Rs. 1 lac to his father at the time of execution of the sale deed in respect of the suit property in the year 2005. The said sale deed executed in the year 2005 is EX. DW 1/1 and as per the said sale deed the sale consideration is Rs. 1 lac. Further more as per the documents Ex. DW-2/1 to Ex.DW-2/4 relied upon by the defendants themselves, 52 sq. yards portion of the suit property was purchased by Late S. Sarpal Singh in the year 2000 for a sale consideration of Rs.50,000/- only.

61. Thus keeping in mind these documents it cannot be said that the valuation put forth by the plaintiff is arbitrary or unreasonable. No other documentary evidence has been led by the defendants to show that the market value of the suit property was Rs. 60 lacs. No sale deed of any adjacent property has been proved by the defendants. No record from the office of the Sub Registrar or Municipal Corporation has been called to establish the market value of the suit property. No valuation Civil Suit no: 1233/08 Page No: 28/34report has been proved nor any valuer or

other person has been examined as a witness in this respect. Thus the defendant have failed to establish their contention.

62. Moreover once the defendants have failed to establish their contention that the market value of the suit property was Rs. 60 lacs at the time of institution of the suit and there being no other cogent and viable evidence on record to establish the exact market value of the suit property, the valuation put forth by the plaintiff has to be accepted as correct as the same cannot be said to be unreasonable.

63. I therefore hold that the suit has been properly valued for the purpose of court fees and jurisdiction.

64. This issue is therefore decided in favour of the plaintiff and against the defendants."

7. Therefore, I hold that there is no illegality in the impugned judgment

holding that the courts below have pecuniary jurisdiction. In fact argument

with respect to pecuniary jurisdiction being urged shows desperation of the

appellants because really the same does not touch on the merits of the matter

of ownership of the suit property which has been found rightly by the courts

below to be of the respondent-plaintiff.

8. Another argument which is urged on behalf of the appellants-

defendants is that they are in possession of the suit property since the last 35

years and, therefore, suit is barred by limitation. In fact this stand which is

raised is a mutually destructive stand because the appellant no. 1/defendant

no. 1 claim purchase of 54 sq. yards of land from the respondent/plaintiff

through her husband as attorney, and if that be so, it is surprising that how

ownership of the respondent-plaintiff is denied on the ground that

appellants-defendants were owners and in possession of the suit property

since 35 years. The arguments therefore urged on behalf of the appellants of

the suit being barred by limitation is wholly misconceived and rejected.

Also, I note that no evidence of any worth was led to prove such an

important plea as that of adverse possession of the appellants-defendants.

On self-serving averments plea of suit being barred by limitation cannot be

accepted by courts.

9. I may note that appellants-defendants had contended before the courts

below that respondent-plaintiff is not the owner, however, this stand was

baseless because admittedly respondent-plaintiff is the wife and thus legal

heir of late Sh. Narender Singh and who is admitted to be the owner of the

suit property. Respondent-plaintiff had also proved in the trial court the gift

deed executed in her favour by her husband as Ex. PW-2/G. The power of

attorney executed by the husband of respondent-plaintiff in favour of

respondent/plaintiff was also proved as Ex. PW-2/F. The respondent/

plaintiff had relied upon the Will executed by her husband in her favour and

which Will dated 18.8.2006 was proved and exhibited as Ex. PW-4/A.

Therefore, it has been sufficiently proved that the respondent-plaintiff was

owner of the suit property after her husband Sh. Narender Singh.

10. I would also at this stage seek to refer with approval the relevant

portions of the impugned judgment of the appellate court and which read as

under :

" The case of the defendants is that Sh. Sarpal Singh being the owner of the 52 sq. Yards out of the suit property has transferred the same in favour of the respondent no. 1 vide registered sale deed executed by Sh. Sarpal Singh in favour of defendant no. 1. The said sale deed is Ex. DW1/1. The perusal of this sale deed shows that Sh. Sarpal Singh has executed the sale deed not as the owner of the property, rather, the attorney of Sh. Narender Singh. Therefore, from the documents filed and relied upon by the defendants, it is clear that late Sh. Sarpal Singh was not owner of the 52 sq. Yards out of the suit property and therefore, he could not have executed the sale deed in favour of defendant no. 1.

It is also the case of the defendants that remaining 54 sq. Yards was sold by Sh. Narender Singh to Sh. Gurdeep Singh, brother in law of Defendant no. 2. Admittedly, no document in this regard was filed by the defendants. Therefore, this plea of the defendants is without any base and the same cannot be believed.

The plaintiff claims to be the owner of the suit property being the widow Sh.Narender Singh, her husband. It is an admitted fact that Sh. Narender Singh was the husband of the

plaintiff and was owner of the suit property. It is also an admitted fact that the husband of plaintiff has expired and he did not have any issue. The plaintiff has proved the Will executed by her husband in her favour. The Will has been duly proved by examining the witnesses. Therefore, the plaintiff became the owner of the suit property by the virtue of the Will. Even otherwise, she is the owner of the suit property under the law of inheritance.

The Ld. Trial court has discussed the issue of limitation and pecuniary jurisdiction. The findings on the said issues are well reasoned and justified. So far as pecuniary jurisdiction is concerned, as per sale deed Ex. DW1/1 the defendant no. 2 has purchased 52 sq. Yards out of the suit property for a consideration of Rs. One Lac and the defendants are claiming that the suit property is worth Rs. Sixty Lacs. No evidence was led by the defendants to prove that the suit property was worth Rs. Sixty Lacs."

11. In view of the above, there is no merit in the appeal. No substantial

question of law arises. The appeal is, therefore, dismissed with costs of Rs.

30,000/- in view of the observations made by the Supreme Court in the case

of Ramrameshwari Devi & Ors. Vs Nirmala Devi & Ors. (2011) 8 SCC 249

which states that it is high time that in frivolous litigations, actual and

exemplary costs must be imposed and considering that the husband of the

appellant no. 1/defendant no. 1 was a care taker, but who thereafter illegally

claimed ownership, and the respondent-plaintiff has been put to unnecessary

costs of litigation, costs of Rs. 30,000/- are apposite in the facts of the

present case.

JANUARY 24, 2014                                VALMIKI J. MEHTA, J
godara