Delhi High Court
Kewal Krishan Jaitley vs Acharaj Ram Kapoor @ Ascharaj Ram ... on 3 May, 2016
* HIGH COURT OF DELHI AT NEW DELHI
+ Ex. S.A. No.5/2014 & C.M. Nos.13749/2014, 13751/2014
Decided on : 3rd May, 2016
KEWAL KRISHAN JAITLEY ...... Appellant
Through: Mr. Ajay Malhotra & Ms. Hema Arora,
Advocates.
Versus
ACHARAJ RAM KAPOOR @ ASCHARAJ RAM KAPUR THRU. HIS
LEGAL HEIRS ...... Respondent
Through: Mr. Ashok Kapoor, R-2 in person.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. This is a regular second execution appeal filed by the appellant
under Section 100 CPC against the order dated 26.5.2014 by virtue of
which the Execution first appeal of the appellant against the rejection of
his objections by the executing court on 22.7.2013 was challenged and
got dismissed.
2. Before dealing with the submissions of the appellant, it may be
pertinent here to give brief background of the facts of the case. The
respondent Acharaj Ram Kapoor (since deceased) file a suit for
injunction on 30.10.1980 against the present appellant that the appellant
was paying a rent of Rs.100/- per month as fixed profit in respect of Shop
No.25, Old Rajinder Nagar, New Delhi to him. This suit was withdrawn
by the deceased respondent on 11.2.1982. On 2.11.1982, Acharaj Ram
Kapoor filed another suit bearing No.826/1982 alleging that a strip of
land measuring 19.11 square yards was allotted to him by the Ministry of
Rehabilitation on 18.11.1965 on which the appellant had taken illegal
possession thereof.
3. The present appellant/defendant filed his written statement and
took a plea that he was in possession of the aforesaid strip of land
measuring 19.11 square yards right from 1961. The aforesaid suit was
also disposed of on the basis of the statement got recorded by Acharaj
Ram Kapoor that he will file a separate suit for possession.
4. On 27.4.1985, Acharaj Ram Kapoor filed a suit for possession in
respect of the said strip of land bearing No.167/1985. On 28.3.1998, the
learned Civil Judge decided the said suit in favour of Acharaj Ram
Kapoor. The appellant filed an appeal before the learned ADJ which was
dismissed on 11.3.2005. A regular second appeal was also filed by the
appellant before this court which was also decided against the appellant.
In the meantime, during the pendency of the above litigations, Acharaj
Ram Kapoor died on 12.3.2002 and his legal heirs were brought on
record. One of the legal heirs of Acharaj Ram Kapoor, namely, Ashok
Kapoor, filed an application and stated that he has 1/5 th undivided
unspecified share not only in the shop but also in the strip of land and that
all other legal heirs have also relinquished their 1/5th share each in his
favour. Further, he has stated that Ajay Kapoor, another legal heir of
Acharaj Ram Kapoor, had sold his 1/5th undivided share in respect of the
shop as well as the strip of land to the appellant and this sale transaction
was not allowed by Government of India, Ministry of Urban
Development, L & DO Department. The appellant filed objections under
Section 47 CPC on the ground that he has become owner of 1/5 th share
which is purported to have been sold to him by one Ajay Kapoor and
accordingly, he sought being impleaded as a party. The objections of the
appellant were dismissed on 22.7.2013. Thereafter, he filed review
application under Section 114 CPC, which was also dismissed on
22.1.2014 and the necessary consequence of this is that the question
which became a bone of contention between the parties was whether the
decree which was in favour of the respondent stood satisfied or the decree
was satisfied so far as the recovery of possession of the property is
concerned.
5. Against the order of eviction, the present appellant preferred first
appeal which was dismissed. Second appeal was filed which was also
dismissed and thus, the order of eviction became final qua the appellant.
Respondent/ Judgment holder thereafter, filed an Execution petition. In
the meantime, Ajay Kapoor is purported to have sold his undivided
unspecified share in favour of the appellant. Based on the aforesaid
agreement to sell which is purported to have been executed by one of the
legal heirs of Acharaj Ram Kapoor, namely, Ajay Kapoor, the appellant
filed the objections under Section 47 CPC and contended that he has
become the co-owner to the extent of 1/5th undivided share of the land of
the said shop along with additional strip of land which is subject matter of
execution and accordingly, execution of decree cannot proceed further.
6. The objections of the appellant were dismissed by the Ld. Civil
Judge vide order dated 22.07.2013 and subsequently, a review filed by
the appellant was also dismissed vide order dated 22.01.2014.Thereafter,
the appellant filed an Execution First appeal and contented that Ajay
Kapoor one of the legal heirs of the Respondent Acharaj Ram Kapoor,
sold his undivided 1/5 share to the appellant by way of registered
agreement to sell and GPA dated 16.10.2009 executed in favour of the
appellant.
7. The learned ADJ rejected the objections of the appellant and took
the plea that as the agreement to sell 1/5th undivided unspecified share by
Ajay Kapoor to the appellant was although a valid document, as the same
was registered with the Sub-Registrar's office, but nevertheless merely,
on the strength of this agreement to sell and the power of attorney, the
appellant could not forestall the recovery of possession of the premises in
question by the decree holder. It was contended that not only the decree
of eviction has been confirmed by the High Court in second appeal but
even the objections by the first executing court have been dismissed. The
first appellate court also dismissed the execution appeal. Therefore, the
decree having become final, it cannot be forestalled by the appellant. It
was further stated that on the strength of Suraj Lamp & Industries Pvt.
Ltd. Vs. State of Haryana; AIR 2012 SC 206, the appellant, at best, could
perfect his title by filing an independent suit and could not forestall the
decree.
8. Second appeal can be entertained by the court only when a
substantial question of law is involved. In the instant case, the appellant
has prepared number of questions in the appeal but all these questions, in
my considered opinion, are questions of fact and not substantial questions
of law. No doubt, the two judgments which have been referred to in the
first order passed by my learned predecessor has taken note of the fact
that the appellant is relying upon the case titled Jagdish Dutt & Anr. vs.
Dharam Pal & Others; (1999) 3 SCC 644 but nevertheless the court itself
has pointed out that the aforesaid judgment has been overruled by another
judgment titled Indian Umbrella Manufacturing Co. & Ors. vs.
Bhagabandei Agarwalla (Dead) by LRs Smt. Savitri Agarwalla & Ors.;
(2004) 3 SCC 178. The law which is laid down in the latter judgment is
that a decree which is passed in favour of one of the co-parceners is a
decree in favour of all the co-parceners and can be executed by any of the
co-parcener or a member of a joint hindu family.
8. Having regard to the aforesaid legal position, I feel that the appeal
which has been filed by the appellant does not involve any substantial
question of law. The so-called questions of law which has been stated in
the paper book itself run into almost 15 questions which are essentially
questions of fact and not questions of law. Further, the appellant being
unsuccessful before as many as five courts; three courts while the matter
was being contested by the parties on merits and two forums by way of
executing court and the first appellate court and having rejected the plea
of the appellant, it is not open for him now to re-agitate the entire issue
afresh by relying on certain exotic reasons. I, therefore, feel that the
present appeal does not raise any question of law and the decree deserves
to be executed. Accordingly, the appeal is dismissed.
V.K. SHALI, J.
MAY 03, 2016/'AA'
