Deep Karan Lal vs Brij Mohan Sharma & Anr.
2015 Latest Caselaw 4489 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                     R.S.A. No.39/2012 & C.M. No.4391/2012

                                               Decided on : 29th June, 2015

NDMC                                                    ...... Appellant
                        Through:       Mr. Arvind Sah, Advocate.
                              Versus

BRIJ MOHAN SHARMA & ORS.                 ...... Respondent
             Through: Mr. Ajay Kumar Porwal, Advocate for
                      R-1 with R-1 in person.
                      Mr. Navin Kumar Jaggi, Advocate for
                      R-2 to 6.

                                        WITH

+                                 R.S.A. No.3/2013

DEEP KARAN LAL                                                ...... Appellant
             Through:                  Mr. Dhanesh Relan, Advocate.
                              Versus
BRIJ MOHAN SHARMA & ANR.                 ...... Respondent
             Through: Mr. Ajay Kumar Porwal, Advocate for
                      R-1 with R-1 in person.
                      Mr. Navin Kumar Jaggi, Advocate for
                      R-3.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. These are two regular second appeals arising out of the common

judgment and decree dated 15.12.2011 passed by Mr. Ajay Goel, the

learned Senior Civil Judge-cum-RC (Central), Delhi in R.C.A.

No.213/2005.

2. Briefly stated the facts leading to filing of the present appeals are

that Brij Mohan Sharma (parties are referred by their status in the trial

court), respondent No.1 in both the aforesaid appeals, filed a suit bearing

No.123/1997 for declaration against NDMC, Om Prakash Sharma (his

brother) and Deep Karan, making them as defendant Nos.1, 2 & 3

respectively. The declaration sought by Brij Mohan Sharma was that a

decree be passed declaring him to be the joint licensee of shop No.29

Prithvi Raj Market, New Delhi. The said shop was originally allotted to

one Hans Raj Sharma by NDMC (defendant No.1) on licence basis. Hans

Raj Sharma, father of Brij Mohan Sharma (plaintiff) and Om Prakash

Sharma (defendant No.1), remained licensee till his death on 22.4.1961

and after his death, all legal heirs became entitled to be substituted as

legal heirs of the deceased/licensee but the licence was substituted in

favour of his widow, Pushpawati. All the remaining legal heirs had no

objection to her substitution. She remained licensee of the suit property

till her death on 2.5.1970. After her death, all her legal heirs, namely,

Brij Mohan Sharma, Om Prakash Sharma, Nand Kishore Sharma, Madan

Mohan Sharma, Krishna Devi, Saroj Bala and Neelam Devi became

entitled to a joint licensee in respect of the shop in question. It was

alleged that Om Prakash Sharma, brother of Brij Mohan Sharma,

manipulated with NDMC and fraudulently without his knowledge, and

got the shop transferred in his own name as a licensee and occupied the

shop. It was alleged that false affidavits of legal heirs of Pushpawati

including that of Brij Mohan Sharma were filed for this purpose. It is

further alleged that no 'No objection' was invited by the NDMC from the

other legal heirs and thus, a declaration was sought.

3. So far as Deep Karan (defendant No.3) is concerned, it was alleged

that a further conspiracy was hatched between him and Om Prakash

Sharma (defendant No.2) by virtue of which the shop No.29, which was

originally allotted to Hans Raj Sharma, father of Brij Mohan Sharma, was

exchanged by Om Prakash Sharma with shop No.22 owned by Deep

Karan. It was stated that this fact of exchange of shops was learnt by Brij

Mohan Sharma (plaintiff) only on 30.4.1989 and, therefore, he sent a

notice to NDMC dated 25.9.1989 to issue a joint licence in favour of all

the legal heirs but of not avail and accordingly, he chose to file the

aforesaid suit seeking declaration.

4. So far as NDMC is concerned, it controverted all the allegations

except that Hans Raj Sharma was the original licensee. It was also

admitted by NDMC that after the death of Pushpawati, the shop was

ultimately regularized in the name of Om Prakash Sharma, who had

submitted an affidavit to NDMC that all the other legal heirs including

Brij Mohan Sharma do not have any objection for transfer of the licence

in the name of Om Prakash Sharma, being the eldest in the family.

NDMC got a resolution passed and accordingly transferred licence in

favour of Om Prakash Sharma. It also admitted that the aforesaid

resolution was passed by the committee vide resolution No.6 on 5.3.1974.

Brij Mohan Sharma (the plaintiff) has stated that he learnt about this only

in the year 1989 despite the fact that he claimed that he was running the

said shop along with his brother, Om Prakash Sharma.

5. Om Prakash Sharma also contested the suit and filed reply on the

same lines on which NDMC had filed its reply. He also stated that he had

legally exchanged shop No.29, of which his father, Hans Raj Sharma,

was the original licensee, after having got his licence regularized with

Deep Karan, who was the owner and licensee of shop No.22.

Accordingly, he prayed for dismissal of the suit.

6. On the pleadings of the parties, the following five issues were

framed :-

"1. Whether plaintiff is entitled to declaration as he is joint licensee of shop No.29, Prithvi Raj Market, New Delhi? OPP

2. Whether suit is barred by limitation? OPD-1

3. Whether suit is bad for non-joinder and misjoinder of necessary parties? OPD-1

4. Whether suit is not maintainable u/S 49 of Punjab Municipal Act, 1911? OPD

5. Relief."

7. The parties examined their respective evidence. Brij Mohan

Sharma (the plaintiff) examined himself as PW-1 and NDMC examined

one S.K. Saini. On the basis of the evidence, all the issues were decided

against Brij Mohan Sharma (the plaintiff). The trial court also observed

that a suit for declaration has to be filed within the period of three years

from the date when the right to sue has accrued for the first time and in

the instant case, the right to sue accrued on 13.6.1973 when 'No

Objection Certificate' was given by all the legal heirs, yet the suit was

filed after expiry of almost 15 years and therefore, the suit was hopelessly

barred by time and was dismissed on 4.10.2005. The documents which

were the basis of regularizing the licence and the resolution on the basis

of which the licence of Om Prakash Sharma was regularized were duly

proved.

8. Feeling aggrieved by the aforesaid dismissal of the suit, Brij

Mohan Sharma preferred an appeal against the judgment and decree of

dismissal bearing RCA No.213/2005 titled Brij Mohan Sharma vs.

NDMC & Others. By the time the appeal was filed, Om Prakash Sharma

had died and his legal heirs, who were five in number, were impleaded as

respondent No.2A to 2E. The appellate court overturned the judgment

of the trial court by observing that some hanky panky in mutating the suit

shop in the name of Om Prakash Sharma was made out as he had not

even bothered to step into the witness box to prove his case. It was

observed by the first appellate court that all the rules and regulations were

thrown to winds which were to be observed with regard to mutation of

the property in the name of Om Prakash Sharma and therefore, the first

appellate court allowed the appeal on 15.12.2011 and set aside the

judgment and the decree passed by the trial court and directed that Brij

Mohan Sharma is the joint co-licensee in respect of shop No.29, Prithvi

Raj Market, New Delhi and consequently exchange of shop No.22 with

shop No.29 between Om Prakash Sharma (since deceased) and Deep

Karan was also declared null and void.

9. Feeling aggrieved, NDMC and Deep Karan Jai have preferred two

separate appeals. While as appeal No.39/2012 is filed by NDMC, appeal

No.3/2013, has been filed by Deep Karan Jai. The only question which

arises for consideration is as to whether the judgment and decree passed

by the first appellate court suffers from any perversity which necessarily

will include a question of examination of facts in the light of evidence

adduced and it would be a substantial question of law. Further in order to

establish a thing, is it necessary that one of the party, who has setup a

case in that regard, must necessarily enter into the witness box? A

peripheral question to this would be as to whether the court can grant a

relief which is not even claimed by the plaintiff, Brij Mohan Sharma?

10. I have heard the learned counsel for the parties and have also gone

through the judgment of the trial court as well as the first appellate court.

The first appellate court has primarily set aside the judgment and the

decree of dismissal on the ground that Om Prakash Sharma (defendant

No.2) has not entered into the witness box in order to prove his case. I do

not feel that Om Prakash was required to enter into the witness box at all.

This is on account of the fact that Om Prakash Sharma's case has been

established on the basis of the stand taken by NDMC in the pleadings as

well as through the testimony of the witness, who has been examined by

the NDMC that he is a legal genuine licensee of the shop in question.

Two vital documents have been proved by the NDMC in this regard. The

first document is 'No objection' having been given by all the legal heirs

including Brij Mohan Sharma on 13.9.1973 giving therein no objection to

the transfer of the licence in respect of shop No.29 in favour of their

eldest brother, namely, Om Prakash Sharma. This document is not

admitted by Brij Mohan Sharma. He has denied that he has ever signed

any such document. The witness does not seem to be testifying the truth.

If at all he had not signed the said document, he at best could have

obtained an expert's opinion as to whether his signatures which are

appearing on the copy of the plaint or vakalatnama or on any other

admitted documents were tallying with the signatures appearing on the

questioned document. It is very unlikely that this document of 'no

objection' has not been signed by Brij Mohan Sharma. This is on account

of the fact that not only Brij Mohan Sharma has signed the said document

but it is signed by other remaining legal heirs also. None of the other

legal heirs have been impleaded as a party to the suit nor have they been

made to appear as a witness to say they did not sign the said document. If

that would have been so then perhaps one could have easily and safely

said or presumed said that this 'No objection certificate' is a procured

document. On the contrary, so far as Brij Mohan Sharma's signatures are

concerned, I have compared his signatures appearing on this 'No

objection' with his signatures appearing on the plaint and vakalatnama. I

find, a comparison from the naked eye, gives an irresistible impression

that the signatures appearing on the 'No objection certificate' are that of

Brij Mohan Sharma. The reasons for drawing this inference is the

formation of the words, the force with which the signatures have been

put. It shows some amount of similarity which makes the court to draw

this inference. The second document which has been proved by NDMC

was the resolution passed by it regularizing the licence in favour of Om

Prakash Sharma after he had completed the requisite formalities including

filing of 'No objection' by the six legal heirs in favour of Om Prakash

Sharma, being the eldest.

11. These two documents, therefore, clearly establish the case of Om

Prakash Sharma (defendant No.2) that he was a valid licensee in respect

of the suit shop in question and his name was correctly substituted in

place of his mother on account of 'no objection' having been given by all

the remaining legal heirs. That being the position, the finding recorded

by the first appellate court in this regard that something hanky panky has

transpired or something is amiss with the NDMC, is only based on

conjecture and surmises without their being any evidence on record. I,

therefore, feel that the judgment of the first appellate court suffers from

perversity inasmuch as it has failed to appreciate evidence in its correct

perspective and it has ignored evidence which has been produced by

NDMC in proof of a fact by preponderance of probability which

indirectly goes to prove the case of Om Prakash Sharma (defendant

No.2). If that be so, then obviously the consequences must follow. The

first appellate court cannot declare exchange of shop by Om Prakash

Sharma with Deep Karan in place of shop No.29, taking shop No.22, to

be null and void.

12. There is another aspect of the matter that though Brij Mohan

Sharma (the plaintiff) states that cause of action accrued to him on

30.4.1989, when he, for the first time, learnt that the licence in respect of

the shop in question has been mutated in the name of Om Prakash

Sharma (defendant No.2) but the fact of the matter remains that the

document itself which gives 'no objection' for transfer of licence in

favour of Om Prakash Sharma is signed and bearing a date of 13.6.1973,

therefore, Brij Mohan Sharma (the plaintiff) was aware of the fact that his

signatures are obtained showing that he has given 'no objection' for

transfer of licence in favour of Om Prakash Sharma, is attributable to him

in 1973. That being the position, the suit for declaration has to be filed

within a period of three years which has been long overdue and it was

incorrect on the part of the first appellate court to hold that the suit of the

appellant is within limitation.

13. There is yet one more aspect also to the written statement of the

defendants that according to Order I Rule 10 CPC, all the parties whose

presence is required for the just and effective adjudication of the lis

between the parties is necessary as well as proper party to the suit and

must be impleaded so. In the instant case, Brij Mohan Sharma is

claiming himself to be the licensee in respect of the shop in question

basing his claim that he is a co-licensee along with Om Prakash Sharma,

yet, he does not make the other five/six legal heirs of original allottee as

parties for being impleaded. He knew for certain that if they would have

been impleaded as parties and appeared as witnesses, they would have

testified against him.

14. For the reasons mentioned above, I am of the considered opinion

that the judgment passed by the first appellate court is suffering from

perversity and accordingly deserves to be set aside. Ordered accordingly.

Both the regular second appeals are allowed and the suit of the plaintiff,

Brij Mohan Sharma, for dv eclaration is dismissed.

V.K. SHALI, J.

JUNE 29, 2015 'AA'