Kishan Pal Singh vs G.L. Dhara & Ors.
2014 Latest Caselaw 4777 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                Ex. F.A. No.27/2014 & C.M.No.16088/2014 (Stay)

%                                                   24th September, 2014

KISHAN PAL SINGH                                            ......Appellant
                          Through:     Mr.Kirti Uppal, Sr.Advocate with
                                       Mr.Amardeep Maini, Advocate.

                          VERSUS

G.L. DHARA & ORS.                                         ...... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? (Yes)

VALMIKI J. MEHTA, J (ORAL)

1. This execution first appeal is filed by the objector/appellant against

the impugned judgment of the executing court dated 19.8.2014 by which the

executing court has dismissed the objections filed by the appellant.

2. The appellant/objector is one Sh.Kishan Pal Singh and the decree

holder is one Sh.G.L.Dhara. Sh.G.L.Dhara/decree holder filed a suit against

four defendants, Sh.Amin Chand, Sh.Jagan Singh, Sh.Prem Singh Verma

and Sh. Dhiraj Singh with respect to the suit property admeasuring 4000 sq.

yds. falling in khasra no.742, village Mandawali Fazalpur, Shahdara, Delhi.

In the suit, relief of possession and mesne profits/damages were sought.

3. This suit of the decree holder was decreed by a learned Single Judge

of this Court vide its judgment dated 28.8.2001. The judgment debtors in

that suit filed an appeal before the Division bench of this Court, and which

appeal was dismissed by the Division Bench vide judgment dated 23.9.2008.

The judgment debtor also thereafter challenged the judgment of the Division

Bench before the Supreme Court, but the SLP was also dismissed.

4. The present execution petition which was filed by the decree holder

immediately after passing of the judgment of a learned Single Judge of this

Court was stayed in view of the filing of the appeal before the Division

Bench, but after dismissal of appeal of the Division Bench and dismissal of

the SLP, the execution petition was revived by the executing court below

vide order dated 18.9.2009.

5. It is thereafter at that stage that the appellant/objector has, sprung up

so as to say, to claim rights in the suit property by filing of the objections on

21.11.2009 i.e after the dismissal of the SLP by the Supreme Court.

6. The case of the appellant/objector is that he has purchased the suit

property admeasuring 3 bighas 6 biswas (one bigha = 1008 sq. yds.) falling

in khasra no.742, village Mandawali Fazalpur, Illaqa Shahdara, Delhi by

means of a registered sale deed dated 06.8.1994 executed by one

Sh.Sundaresan. Sh.Sundaresan himself is stated to have purchased the rights

in the suit property from the decree holder Sh. Girdhari Lal Dhara by means

of the notarized documentats dated 15.6.1988 being the Agreement to Sell,

General Power of Attorney, Will etc. The appellant/objector claims that he

was in possession since the date of purchase on 06.8.1994 and that he came

to know of the decree only when the bailiff visited the suit property on

29.9.2009, and therefore the objections were filed.

7. As per the provisions under Order XXI Rules 97 to 103 of Code of

Civil Procedure, 1908 (CPC) as amended by the amending Act of 104 of

1976, objections of the appellant/objector have to be tried as a suit by

framing issues and allowing parties to lead evidence. Framing of the issues

in the objections and leading of evidence thereafter is referred to in paras 7

to 9 of the impugned judgment, and which paras read as under:-

" 7. From the pleadings of the parties following issue was framed vide order dated 03.12.2011:-

1) Whether the objector/obstructionist Sh.Kishan Pal Singh is the bonafide owoner of property measuring 3 bigha 3 biswa bearing Khasra o.742 within the estate of Village Mandawali Fazalpur, Illaka Shahdara, Delhi 92 having purchased the same vide deed dated 06.8.94?

8. The matter was fixed for objector's evidence on the above mentioned issue. In evidence OW-1 Sh.Krishan Pal Singh, objector himself has been examined vide affidavit Ex. OW1/A. The witness relied upon documents OW-1/1 to 5 viz. sale deed, GPA, Agreement to Sell, Will and payment receipt. The witness has been cross-examined at length.

9. OW-2 Sh. Jugal Kishre is a summoned witness and deposed that he signed the documents EX OW-1/2 - GPA, OW-1/3 - Agreement to Sell, OW-1/4 - Will and OW-1/5 - payment receipt etc. He signed the documents in the presence of both the parties and no other witness was present or singed in his presence. The witness has been cross-examined on behalf of the decree holder."

8. The executing court has dismissed the objections by placing reliance

upon the CFSL report dated 27.4.2011 wherein it is opined that signatures

on the questioned documents, being the documents allegedly executed by the

decree holder in favour of Sh.Sundaresan dated 15.6.1988, do not contain

signatures of the decree holder. The relevant observations and conclusions

of the trial court for dismissing the objections are contained in paras 16 to 19

of the impugned judgment, and which read as under:-

"16. Considering the claim put forth by the objector with respect to the ownership of the property, I have analyzed his testimony recorded as OW-1. The witness has failed to remain consistent and confident with respect to the averments. The documents such as GPA, Agreement to Sell, Will and receipt etc. have not been proved in accordance with the rules of the evidence as the executors of the documents have not been examined in evidence. The material witness Wh. Sundaresan has not been examined despite number of opportunities availed to summon him. The objector Sh. Krishan Pal Singh contradicted his own statement by firstly stating that he does not know judgment debtor but later revealing that he is related to Sh.

Prem Singh being the father-in-law of his brother Sunder. With respect to the testimony of OW-2, I find that witness has also failed to give sufficient evidence to prove the claim of the objector. The witness stated to have signed the documents EX OW-1/2 to 5 but denied that any other witness signed the documents in his presence. The documents show that witness namely, Sh. V.K. Vishwabraham also signed. The witness also demolished the claim of the objector by stating that he was not knowing G.L. Dhara prior to the execution of documents and he signed the documents on mere asking of Sundaresan.

17. The objector was required to prove and establish before the court that decree holder genuinely executed GPA, Agreement to Sell, Will and receipt in favour of Sunderesan but the objector he filed to prove the some by bringing sufficient evidence on record. The material witness Sundaresan has not been examined in support of these documents. With respect to the presumption u/s 85 Evidence Act, as pointed out by Ld. Counsel for objector, I am of the opinion that presumption is rebuttable and the report FSL clearly falsifies the execution of said document by the decree holder.

18. On examining the report of CFSL, I find that due care has been taken by the court to provide document with admitted signatures for comparison with the questioned signatures. I find no reason to disbelieve the report of CFSL with respect to which no objections have been filed on behalf of the objectors. The decree holder has made categorical statement in the reply denying the signatures on the documents and therefore it has not been necessary for the decree holder to have entered into the witness box. The issue with respect to the ownership of the suit property has not been proved or establish by the objector on the record, the issue is decided against the objector and in favour of the decree holder.

19. There has been long drawn litigation between the parties with respect to the respect to the dispute. The objector is related to judgment debtor and there is every possibility that the objections have been filed only to delay the execution. There is no merit or substance in the objections and accordingly warrants of possession be issued with respect to plot measuring 3 bighas 6 biswas bearing Khasra No. 742, within the

revenue estate of village Mandawali fazalput, Illaqa Shahdara, Delhi- 110092."

(underlining added)

9. Learned senior counsel for the appellant/objector has argued before

this Court the following aspects:-

(i) The decree holder had not stepped into the witness box, and therefore

once he chooses to not step into the witness box, the case of the

appellant/objector ought to have been accepted by the executing court and

for which purpose, reliance is placed upon the judgment of the Supreme

Court in the case of Vidhyadhar Vs. Manikrao & Anr. (1999) 3 SCC 573.

(ii) It is argued that the executing court has committed an illegality in

relying upon the CFSL report dated 27.4.2011 because the expert report

before it could have been taken into account by the executing court, it was

necessary that the expert should have been called and should have been

subjected to cross-examination. Reliance is placed upon the judgments of

the Supreme Court in the cases of Ramesh Chandra Agrawal Vs. Regency

Hospital Ltd. & Ors. AIR 2010 SC 806 and State of Himachal Pradesh Vs.

Jai Lal & Ors. AIR 1999 SC 3318. Reliance is also placed upon the

judgment of a learned Single Judge of this Court reported as Mahender

Singh Sachdeva Vs. Kailash Rani Wadhwan 2010 (120) DRJ 34.

10. In my opinion, there is no merit in the appeal and the objections which

are raised by the appellant/objector are wholly without substance, and

consequently the same are rejected for the reasons stated hereinafter.

11. Before I turn to the points which have been canvassed on behalf of the

appellant/objector, I would like to note the following salient aspects:-

(i) The decree holder in this case filed the suit which was decreed after

contest way back in the year 2001. Appeals of the judgment debtor before

the Division Bench of this Court as also the Supreme Court were dismissed.

Therefore, the decree holder though after much contest was successful in

obtaining the decree, however process of seeking possession was continued

by the decree holder, as the possession of the suit property was not delivered

to the decree holder only in view of the appellant/objector having filed the

objections, and which have now been ultimately dismissed by the impugned

judgment dated 19.8.2014. The decree holder hence has been made to run

from pillar to post for around 15 years to get back his own property.

(ii) It has come on record in the cross-examination of the appellant/objector

that the objector is none else but the father-in-law of Sh.Sunder, the brother

of Sh.Prem Singh Verma, and which Prem Singh Verma was one of the

defendants in the suit.

(iii) Though the appellant/objector claimed that he had possession of the

suit premises from 1994 when the sale deed dated 06.8.1994 was executed in

his favour, however, no evidence whatsoever was led with respect to the

proof of possession of the appellant/objector in the suit property from 1994,

and in fact no proof of possession was also led of the predecessor-in-interest

of the appellant/objector Sh.Sundaresan from 1988 till 1994, and when in

1994 Sh.Sundaresan is stated to have sold the suit property to the

appellant/objector.

(iv) Not only no proof has been laid with respect to possession of the

appellant/objector and his predecessor-in-interest Sh.Sundaresan of

possession of the suit property, it is also relevant to note that no public

authority be it the house-tax authority or the income-tax authority or any

other public authority was ever informed that the appellant/objector claimed

ownership rights in the suit property by means of the documents in favour of

Sh.Sundaresan dated 15.6.1988 and that in favour of the appellant/objector

dated 06.8.1994.

(v) The sale deed dated 06.8.1994 in favour of the appellant/objector no

doubt is registered, but it is registered and executed not by the decree holder

but by the alleged general power of attorney holder of the decree holder

Sh.Sundaresan, and in whose favour a general power of attorney was

allegedly executed by the decree holder on 15.6.1988. There is no evidence

which was led before the executing court below that this general power of

attorney allegedly executed by the decree holder in favour of Sh.Sundaresan

was a registered power of attorney, and in fact on the contrary, the plea of

the appellant/objector only is that the documents dated 15.6.1988 including

the general power of attorney dated 15.6.1988 are only notarized documents.

This general of power attorney, therefore was not a valid document for the

purpose of registration of the sale deed dated 06.8.1994 in favour of the

appellant/objector in view of the provisions of Sections 32 and 33 of the

Registration Act, 1908, and I am surprised as to how the Sub-Registrar has

registered this sale deed dated 06.8.1994 in favour of the appellant/objector.

As per Sections 32 and 33 of the Registration Act, a sale deed can be

registered by only that power of attorney holder if the power of attorney is

duly registered before the Sub-Registrar. Clearly therefore, besides

possession not having been proved either of Sh.Sundaresan or of the

appellant/objector, even the sale deed which is relied upon by the

appellant/objector shall confer no title upon the appellant/objector.

12. In my opinion, the aforesaid aspects are more than sufficient for

sustaining the impugned order and dismissal of the appeal, however, let me

now turn to the two aspects which have been urged before this Court.

13.(i) The first argument which is urged on behalf of the appellant/objector

is that since the decree holders did not step into the witness box, the case of

the appellant/objector should be believed in view of the ratio of the

judgment in the case of Vidhyadhar (supra).

(ii) In my opinion this argument urged on behalf of the appellant/objector

is misconceived for various reasons. Firstly in the case of Vidhyadhar

(supra) itself, the Supreme Court has observed that non-appearing in the

witness box at best will entitle drawing of an adverse inference i.e it is not

the law that merely on account of adverse inference, nothing else has to be

seen and on the basis of adverse inference itself, a judgment must

automatically follow. Therefore, non-appearing of the decree holder in the

facts of the present case will have to be seen with other facts of the present

case and the evidence of the appellant/objector which has come on record as

to whether that evidence proves the title and possession of the

appellant/objector and more importantly the evidence which has not come

on record as regards the aspects which I have already mentioned above and

which in my opinion was sufficient for dismissal of the objections as also the

present appeal.

(iii) In a case such as the present, the appellant/objector is like a plaintiff in

the suit. The defendant in a suit, and which would be the respondent/decree

holder in this case, can have enough confidence that the plaintiff in the suit

i.e the objector in the objections has not led sufficient evidence which would

be accepted by the court to decide the objections in favour of the

appellant/objector, and therefore in such a case, there is no legal compulsion

on the defendant in a suit i.e non- objector/decree holder in this case, to step

into the witness box and disprove the case of the appellant/objector. The

necessity to prove his case by the decree holder will only arise if according

to the decree holder sufficient evidence has been led by the

objector/appellant. But if that is not done, then surely it is not illegal for a

decree holder to have confidence that the objector has miserably failed to

lead evidence to prove his case, and therefore the decree holder need not

step into the witness box. In my opinion, the decree holder in the facts of

the present case, and for the reasons which I have mentioned above, was

justified in not leading evidence. Considering the entire evidence which has

been led in this case as also that no evidence has been led by the objector of

his being in possession or his predecessor-in-interest being in possession, the

fact that the sale deed itself is in favour of the appellant/objector is invalid in

view of Sections 32 and 33 of the Registration Act, the objector having

never asserted his title and possession before any public authority, these

reasons are sufficient reasons why the only aspect of adverse inference being

drawn for not stepping into the witness box by the decree holder will not go

against the decree holder in the facts of the present case.

14. So far as the second argument that the trial court has erred in referring

to the report of CFSL that the signatures of the decree holder are not the

signatures on the documents allegedly executed in favour of Sh.Sundaresan

on 15.6.1988, it needs to be stated that once there is a report of an expert,

and which expert's evidence is admittedly under Section 45 of the Evidence

Act, 1872 there would have to be some sort of an application or objections

by the appellant/objector to the report by demanding that the person who has

given the report must come into the witness box and subject him to cross-

examination. The executing court specifically notes that no objections were

filed by the appellant/objector to the report of the CFSL expert. I also put a

pointed query to the learned senior counsel for the appellant/objector as to

whether any application was moved before the executing court by which the

objector/appellant prayed that the expert who has given the CFSL report

should be called into the witness box because he has to be cross-examined

and that without the cross-examination the report cannot be seen. The

answer to this query was that no such application has been moved before the

executing court, and therefore once no such prayer has been made and there

were filed no objections to challenge the report of the expert including by

seeking his cross-examination, the executing court in this case has not erred

in relying upon the CFSL report that the signatures on the documents dated

15.6.1988 are not the signatures of the decree holder/respondent.

15. Reliance placed upon by the appellant/objector on the judgments of

the Supreme Court in the case of Ramesh Chandra Agrawal (supra) and Jai

Lal (supra) are misplaced because these judgments of the Supreme Court

deal with the reports of experts who were medical experts or experts in

orchards/fruits and these judgments do not pertain to a report of a

handwriting expert. The judgment in the case of Mahender Singh

Sachdeva (supra) which is relied upon by the appellant/objector does not

help the appellant/objector because in the facts of that case the handwriting

expert was not looked into in the absence of any other evidence and

handwriting expert's evidence consequently was not believed because onus

of proof was on the person who was relying upon the handwriting expert's

report but here the onus is not on the respondent no.1/decree holder who

relies upon the expert's report, but the onus was on the appellant/objector to

prove his alleged independent title. Also, a reading of that judgment does not

show as to whether any objection was decided that the report should not be

looked into because the expert was called in the witness box for cross-

examination, but, he was not called or did not appear inspite of such a prayer

being made because as noted above in the present case, the

objector/appellant had filed no such application. The judgment Mahender

Singh Sachdeva (supra) accordingly will also not apply in the facts of the

present case.

16. In view of the above, it is clear that objections were highly

misconceived, malafide and motivated. The appellant/objector came into the

situation most conveniently after the suit of the decree holder for possession

was decided in favour of the decree holder right till the Supreme Court.

Also, it has come on record, as stated above that the appellant/objector is no

one else but the father-in-law of the brother of one of the defendants in the

suit.

17. In view of the above, there is no merit in this appeal, and the appeal is

therefore dismissed with costs of Rs.50,000/-. Costs shall be paid within

four weeks by the appellant/objector to the respondent no.1/decree holder

before the executing court and payment of costs by the appellant/objector

shall be a condition precedent for the executing court to consider any further

application, if made, by the appellant/objector.

18. A copy of this judgment shall be sent to the executing court below and

the executing court in the facts of the case will ensure that the decree is

executed expeditiously in accordance with law in favour of the decree

holder/respondent.

VALMIKI J. MEHTA, J SEPTEMBER 24, 2014 KA