Smt.Leela Devi & Anr. vs Sumit Batra
2017 Latest Caselaw 1157 Del

$~A-9
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: 02.03.2017

+     C.R.P. 152/2014 & CM No.16977/2014

      SMT.LEELA DEVI & ANR.                             ..... Petitioners
                   Through            Mr.Abdul Sattar, Adv.

                         versus

      SUMIT BATRA                                       ..... Respondent
                         Through      Mr.Ruchir Bhatia, Adv.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

1. The present Revision Petition is filed under section 115 CPC seeking to impugn the decree/order dated 25.8.2014 passed by the trial court under section 6 of the Specific Relief Act, 1963. The respondent/plaintiff filed a suit for possession under section 6 of the Specific Relief Act regarding property No. C-63, DDA Flats, Kalkaji, Delhi and other connected reliefs. It was contended in the plaint by the respondent that on 21.2.2012 he entered into a lease for a period of five years w.e.f. 1.3.2012 to 28.2.2017 from the owner of the suit property Shri Kuldeep Sharma vide registered lease agreement dated 21.2.2012 (Ex.PW1/2) duly registered with the office of Sub Registrar. It is further stated that pursuant to the lease agreement the said Shri Kuldeep Sharma CRP.152/2014 Page 1 handed over vacant peaceful possession of the suit property to the respondent. The receipt-cum-possession letter dated 6.3.2012 is Ex.PW1/3. It is further stated that after taking peaceful possession of the property, the respondent got it cleaned for the purpose of renovation and whitewashing. He did not shift immediately. He went out to fetch an electrician, plumber and painter after locking the premises. When he returned at 1:00 PM he found that someone had put a lock over his lock on the main entrance of the suit property. He is said to have called the police at 100 No. On enquiry by the police it was revealed that the second lock had been put by the petitioners.

2. The petitioners filed their written statement. It was stated in the written statement that the petitioners and Shri Kuldeep Sharma are real brother/sister. The said property was allotted to the mother Smt.Shakuntala Devi by Slum Department, DDA, New Delhi. The property measures 27sq.yards. It was claimed that there was another brother Shri Mange Ram who died on 4.9.2009. The mother Smt.Shakuntala Devi died on 19.05.2006 intestate. It is stated that the petitioner and Shri Kuldeep Sharma are joint owners in possession of the said property being the legal heirs of Smt.Shakuntala Devi.

3. Based on the pleadings of the parties, the trial court framed the following issues:-

"1.Whether the plaintiff is entitled to decree for possession as has been prayed for? OPP

2. Whether the plaintiff is entitled to decree of permanent injunction as has been prayed for? OPP

3. Whether the plaintiff to decree of recovery of Rs.36300/-? OPP

4. Whether the plaintiff is entitled any damages/compensation amount of Rs.One lakh as has been prayed for? OPP CRP.152/2014 Page 2

5. Whether the plaintiff is entitled to interest @ 3% per month on the amount of Rs.3,60,000/- till restoration of the possession? OPP

6. Whether the suit is not maintainable as it does not disclose any cause of action? OPD 7 Whether the suit is maintainable as the plaintiff is not approached the court with clean hands and guilty for concealing and material facts? OPD

8. Whether the suit is not maintainable as proper court fees has paid and suit valuation is done? OPD

9. Whether the suit of the plaintiff is not maintainable due to non- joinder and misjoinder of parties and its effect thereof? OPD

10. Relief.

4. The parties led their evidence. Respondent/plaintiff led his evidence as PW-1. Smt.Radha Rani w/o Shri Kuldeep Sharma was examined as PW-2, the concerned officer from the Sub-Registrar's office was examined as PW-3 Shri Chaturbhuj Shukla, and Mr.Charanjit was summoned from the court of MM was examined as PW-4. The petitioner examined herself as DW-1.

5. I may note that before this court the only argument that has been raised by the parties centers around issue No.1, namely, as to whether the plaintiff/respondent is entitled to a decree of possession, as prayed for.

6. The trial court by the impugned order noted that the lease agreement has been established by the testimony of PW-3, the receipt- cum-possession letter has also been proved as Ex.PW1/3 and Smt.Radha Rani PW-2 who is a witness to the documents has in her evidence identified her signatures on Ex.PW1/2 and Ex.PW1/3. She has confirmed that Shri Kuldeep Sharma executed these documents. The trial court noted that in contrast the defendant/petitioner only examined herself as DW-1. She was unable to produce any witness from the neighbourhood to show CRP.152/2014 Page 3 that she was ever in possession of the suit property. As there was no contrary evidence placed on record, based on the testimony of the respondent the trial court concluded that the respondent was in possession on 6.3.2012 and was dispossessed by the petitioners and hence decided the issue in favour of the respondent.

7. I have heard learned counsel for the parties. Learned counsel for the petitioner has vehemently argued that the respondent has failed to examine Shri Kuldeep Sharma the person who is alleged to have handed over possession to the respondents. He further submits that the respondent has instead examined the wife of said Shri Kuldeep Sharma whose deposition could not be accepted. It is secondly stressed that there is nothing to show as to how Shri Kuldeep Sharma has come into possession of the property.

8. Learned counsel for the respondent on the other hand pointed out to the various evidence on record to submit that the petitioners are not the sisters of Shri Kuldeep Sharma or the daughters of Smt.Shakuntala Devi. It is urged that admittedly even as per the address given in the affidavit by way of evidence by the petitioner they reside at property No.C-40 whereas the address of the suit property is C-63. Hence, it is urged that they are neighbours who are only trying to enter into the suit property illegally.

9. I may first deal with the issue as to whether the said Shri KuldeepSharma has handed over possession of the suit property to the respondent. The concerned document/lease agreement is a registered document has been exhibited as Ex.PW1/2. Similarly, the receipt-cum- possession letter Ex.PW1/3 has been duly proved by the attesting witnesses. These documents have been duly executed/registered and as CRP.152/2014 Page 4 per the same, Shri Kuldeep Sharma has handed over possession to the respondent of the suit property.

10. As far as the second aspect is concerned, namely, as to whether Shri KuldeepSharma was himself in possession, it may be noted that the wife of Shri Kuldeep Sharma PW-2 has in her affidavit stated that she and her husband and her children have been residing in the suit property upto 6.3.2012. In her cross-examination she has clarified that she was married in December in the year Mrs.Indira Gandhi was assassinated (1984). She has also confirmed that she has remained in the said suit property from the date of her marriage. She has denied that the petitioners are the real sisters of her husband. In contrast, I may also see the evidence of DW-1/Leela Devi. In her evidence byway of affidavit, she states that after her marriage and the marriage of her sister Smt.Basanti Devi they went away to their matrimonial home and Shri Kuldeep Sharma remained in the ancestral house. The petitioners used to come and enjoy the suit property and used to stay in the suit property. It is further stated in the affidavit that they entered into an oral agreement with Shri Kuldeep Sharma in the first week ofFebruary2012 and they paid Rs.2 lacs in cash to him and he left his share in their favour. It is admitted that he did not execute any papers. In cross-examination she admits that earlier the parties were staying at Garhi in a jhuggi. Flat No.C-40, DDA Flats, Kalkaji was given to her in lieu of her jhuggi in Garhi. Similarly, the house No.C-63, DDA Flats Kalkaji was allotted to Smt.Shakuntala Devi in lieu of her jhuggi in Garhi. She in her cross-examination, however, refused to give a date till when Shri Kuldeep Sharma has resided in the suit property. She states that she does not know as she is illiterate and does not remember the date, month and year. It is CRP.152/2014 Page 5 clear from the evidence led that the petitioners have admitted that she has exited from the said suit property and that Shri Kuldeep Sharma her brother has been residing in the house. Based on the above, the trial court has come to a conclusion that the respondents were in prior possession of the suit property. Merely because Shri Kuldeep Sharma was not examined as a witness does not dilute the testimony of other witness and the admissions made by the petitioners in their testimony.

11. No argument was raised regarding any of the other issues adjudicated upon by the trial court.

12. This court in the case of Bhagwati vs. Vijay Rani, 2010 (169) DLT 597 held as follows:-

"10. It may be stated at the outset that the principle that in revision the High Court cannot interfere with the findings of fact arrived at by the Controller on re-appreciation of evidence, has been reiterated in numerous cases. The scope of interference in exercise of revisional powers of this Court is very limited. It is settled law that while exercising powers under Section 25B(8), this Court does not sit in appeal and can re- appreciate the evidence only for the purpose of assuring itself that the order of the learned ARC is in accordance with the evidence and does not suffer from any jurisdictional error or material irregularity. In J.K. Saxena v. Shri Madan Lal Khurana reported as 75 (1998) DLT 903, a Single Judge of this Court discussed the scope of interference in the exercise of revisional powers and observed that "there is limited scope of interference in exercise of revisional powers of this Court and the High Court is merely to examine the records in order to satisfy itself that the decision of the Controller is 'according to law'. The High Court, however, will not re-appreciate the evidence and sit in judgment over findings of fact arrived at by the Controller.

The High Court cannot also interfere merely because on the same evidence, it is likely that it may come to a different

CRP.152/2014 Page 6 conclusion. In other words, the High Court will not be justified in interference with the plain finding of fact."

13. Hence, there are no grounds made out for this court to exercise its revisionary powers to interfere in the findings of fact recorded by the trial court. The petition is without merits and is dismissed. All pending applications, if any, also stand disposed of accordingly.

                                                    JAYANT NATH, J
MARCH 02, 2017
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CRP.152/2014                                                           Page 7