Delhi High Court
Shanti Devi vs Gulab Singh on 27 November, 2015
Author: Vipin Sanghi
$~16.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 27.11.2015
% RSA 408/2015
SHANTI DEVI ..... Appellant
Through: Ms. Anjali Chopra, Advocate
versus
GULAB SINGH ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
CM Appln. No. 28403/2015 (condonation of delay)
By this application, the applicant seeks condonation of 10 days' delay
in refilling the present second appeal. For the reasons stated in the
application, the delay is condoned. The application stands disposed of.
CM Appln. No. 28406/2015(exemption)
Exemption allowed, subject to just exceptions.
RSA 408/2015 & CM Appln. No. 28405/2015 (stay)
1. The present second appeal is directed against the judgment and decree
dated 30.06.2015 passed by the first appellate court, namely, Additional
Senior Civil Judge of Central District at Tis Hazari Courts, Delhi, in RCA
No. 4/2010, preferred by the appellant-plaintiff whereby the said appeal has
RSA 408/2015 Page 1 of 6
been dismissed. The said first appeal had been preferred to assail the
judgment and decree dated 19.03.2010 passed by the trial court, namely, the
Civil Judge (West)-2, Delhi, in Suit No. 841/98 preferred by the appellant-
plaintiff to seek the relief of permanent injunction, which had been
dismissed.
2. The case of the appellant/plaintiff was that the plaintiff is the owner
and landlord of the property bearing No. 10614, Manakpura, Delhi. It was
claimed that the suit property originally belonged to Shri Hardeva of whom
the plaintiff is the adopted son. The plaintiff claimed that the two wives of
Hardeva, namely, Smt. Ghisi and Smt. Budhi executed a registered gift deed
dated 17.02.1955 in favour of the plaintiff, gifting the suit property to him.
The plaintiff claimed that the defendant was the licensee in respect of two
rooms, one store and a water closet in a portion of the suit property which
was created on account of love and affection towards the mother of the
defendant by the uncle of the plaintiff, namely, one Shri Ram Rattan. No
charges were fixed under the said license. Later on, on the insistence of the
mother of defendant No. 1, a token amount of 50 paisa per month was
agreed to be accepted by the plaintiff from the parents of the defendant for
use and occupation of the said portion in the suit property. The plaintiff
claimed that payment was made by defendant No. 1 till 1989, whereafter it
was unilaterally stopped. The mother of defendant No. 1 expired in 1992.
Defendant No. 1 has continued in occupation of the suit property without the
consent of the plaintiff. It was further claimed that defendant No. 1 had
inducted a tenant in one room of the said portion located on the first floor of
the suit property without the consent of the plaintiff. Since the defendant
RSA 408/2015 Page 2 of 6
No. 1 did not vacate the premises and also threatened to create third party
interest in the portion in his occupation, the suit was preferred to seek a
restraint against him from alienating possession of the ground floor to any
third party or creating any third party interest there.
3. Defendant No. 1 filed his written statement disclosing that he has
already sold the suit property to one Smt. Laxmi Devi by executing the
necessary documents and handing over possession to her on 27.11.1998.
Consequently, the suit was amended by the plaintiff. Smt. Laxmi Devi was
impleaded as defendant No. 2. The plaintiff also sought a decree for
possession qua the portion of the suit property in possession of the
defendants.
4. The defendants filed a joint written statement challenging the claim of
ownership made by the plaintiff in respect of the suit property. The
defendants claimed that plaintiff-Prabhati Ram was an illiterate person who
has neither signed the plaint, nor engaged any counsel for filing of the suit.
Some other person signed the plaint, in his name, and plaintiff was not even
aware of the pendency of the suit and the signatures of the plaintiff have
been forged and fabricated. One Shri Jeet Ram was stated to be misusing
the process of law in collusion with Shri Bhupinder Kumar. The defendants
claimed that Smt. Chhajji Devi got the suit property from her ancestors who
were the actual owners of the same. Smt. Chhajji Devi was the mother of
defendant No. 1 and absolute owner of the suit property. In the alternative,
the defendants claimed that Smt. Chhajji Devi became owner of the suit
property by adverse possession as she was in actual, exclusive, physical and
continuous possession for the last about 60 years and her possession was
RSA 408/2015 Page 3 of 6
hostile and open against everyone including the plaintiff. The defendant
claimed that after the demise of Smt. Chhajji Devi, defendant No. 1 became
the owner of the suit property. The claim of ownership made in the name of
Hardeva was also disputed by the defendants and, consequently, the gift
deeds purportedly made by Smt. Ghisi and Smt. Budhi were also stated to be
of no avail.
5. One Shri Bhupinder Kumar was examined as PW1 on the strength
that he is the power of attorney holder of the plaintiff. He also claimed that
he was conversant with the facts of the present case. He exhibited the site
plan (Ex.PW1/1) and certified copy of the gift deed dated
17.02.1955(Ex.PW1/2). The judgments passed in other litigations were also
led in evidence by the plaintiff. In his cross-examination, this witness
admitted that defendant No. 2 was residing in the suit property for the last 35
years. He admitted that Hardeva had not obtained any decree with regard to
the title to the suit property since 1955. He also admitted that the suit filed
by, inter alia, Ghisi and Budhi, for declaration of title to the suit property
had been dismissed by the Court.
6. The trial court dismissed the suit firstly on the premise that the
plaintiff did not led his evidence in support of his case. The evidence of
Bhupinder Kumar could not be relied upon, as he was a stranger and his
deposition was not based on his personal knowledge in relation to the
matters on which he deposed. The trial court also held that the plaintiff had
not been able to establish his title to the suit property. The first appellate
court has also concurred with the said findings and dismissed the first
appeal.
RSA 408/2015 Page 4 of 6
7. I may observe that at the first appeal stage, after about 5 years of the
filing of the first appeal, the appellant moved an application to lead
additional evidence by leading the evidence of the plaintiff. The said
application was rejected by the first appellate court.
8. The submission of learned counsel for the appellant, firstly, is that the
first appellate court ought to have permitted the appellant to lead additional
evidence. This is for the reason that when the evidence was led in the suit,
the judgment of the Supreme Court in Janki Vashdeo Bhojwani & Anr. Vs.
Indusind Bank Ltd. & Ors. AIR 2005 SC 439 had not been rendered. Only
after this judgment, the appellant became wise that his attorney could not
lead evidence unless he was personally acquainted with the facts of the case
in respect of which he was deposing. Learned counsel for the appellant
further submits that the appellant had produced the certified copy of the
registered gift deed executed by the two wives of late Shri Hardeva. It was
further argued that even the suit filed by the defendant's mother to claim
title to the suit property had been dismissed. Thus, the title of the defendant
was also not established.
9. Having heard learned counsel and perused the judgment of the trial
court and the first appellate court, I am of the view that there is no merit in
the second appeal. For the appellant to obtain relief in the suit filed by him,
it was essential for him to establish his title to the suit property which he
miserably failed to do. Although he produced certified copy of the
registered gift deed executed by Smt. Ghisi and Smt. Budhi in his favour,
admittedly, Smt. Ghisi and Smt. Budhi were not the owners of the property
as it was claimed that Mr. Hardeva - their late husband, was the owner.
RSA 408/2015 Page 5 of 6
However, the title of Hardeva was not established by the plaintiff.
Consequently, in any event, the plaintiff could not have succeeded in the
suit. So far as the grievance that the appellant was not permitted to lead
additional evidence is concerned, the judgment in Janki Vashdeo Bhojwani
(supra) merely declared the law as it always existed. The law declared by
the Supreme Court in the said decision was the law even when the evidence
was led in the present suit. The application under Order 41 Rule 27 CPC
was moved only after about five years of filing of the appeal. Moreover,
even if the appellant had been permitted to lead additional evidence, the
same did not pertain to the title of Hardeva. Consequently, it was
purposeless to allow the said application as it would not have improved the
situation for the appellant.
10. For all the aforesaid reasons, I find no reason in the present appeal
and dismiss the same.
VIPIN SANGHI, J.
NOVEMBER 27, 2015
sl
