Delhi High Court
Shri Yudhisther Sharma vs Shri Om Prakash Sharma on 9 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 132/2017
% 9th May, 2017
SHRI YUDHISTHER SHARMA ..... Appellant
Through: Mr. Sameer Nandwani, Adv.
versus
SHRI OM PRAKASH SHARMA ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this Regular Second Appeal filed under Section 100 of
the Code of Civil Procedure, 1908 (CPC) the appellant/plaintiff
impugns the concurrent judgments of the courts below; of the Trial
Court dated 20.10.2014 and the First Appellate Court dated 21.1.2017;
whereby the suit filed by the appellant/plaintiff for possession and
mesne profits has been dismissed with respect to the suit property
bearing no.483, Gali No. VII, Rampura, Delhi-35 on land having an
area of 162.5 sq. yds.
2. Appellant/plaintiff filed the subject suit pleading the fact
that Smt. Sarti Devi mother of the appellant/plaintiff was the owner of
the suit property having purchased the same through a sale deed dated
28.2.1962. Appellant/plaintiff was the only son of his parents and on
the death of his parents he became the owner of the suit property. It
was pleaded that the appellant/plaintiff had executed a registered GPA,
Will, agreement to sell in favour of one Sh. Shiv Prakash who was
authorized to deal with the suit property and who was also handed over
the physical possession of the suit property. It was further pleaded that
on account of pressure brought out by the police on Sh. Shiv Prakash
because of the complaint dated 12.7.2004 of the respondent/defendant,
the respondent/defendant was put in possession of the suit property by
dispossessing Sh. Shiv Prakash, and which was only done at the behest
of the local police. The factum of dispossession of Sh. Shiv Prakash
was informed by Sh. Shiv Prakash to the appellant/plaintiff and the
appellant/plaintiff after serving a legal notice dated 23.7.2004 has
therefore filed the subject suit.
3. The respondent/defendant filed the written statement and
pleaded that the suit property was sold to the respondent/defendant by
the mother of the appellant/plaintiff Smt. Sarti Devi in terms of the
usual documents including the agreement to sell dated 23.5.1980. The
respondent/defendant further pleaded that after being handed over
possession of the suit property pursuant to the documentation including
the agreement to sell dated 23.5.1980, the respondent/defendant had
litigated with various tenants of the suit property and had also obtained
a vacation order against a tenant. It is pleaded that the
appellant/plaintiff was always aware of the transfer of the suit property
to the respondent/defendant and which was acknowledged by not only
the mother of the appellant/plaintiff but also by the appellant/plaintiff
himself. It was further pleaded that the last tenant Sh. Ishwar Singh
who was in possession of the suit property handed over possession of
the suit property to the respondent/defendant in January 2004. The
subject suit was therefore prayed to be dismissed.
4. Both the courts below have held that the suit property
stood transferred to the respondent/defendant by the mother of the
appellant/plaintiff by means of usual documents being the agreement to
sell, GPA, Receipt, Will, affidavit etc and which documents were duly
executed before the trial court as Ex. PW1/2 to Ex.PW1/11. All these
documents bear the thumb impressions of the mother of the
appellant/plaintiff Smt. Sarti Devi. No evidence was led by the
appellant/plaintiff that the thumb impressions on these documents were
not of the mother of the appellant/plaintiff, and therefore, the suit
property was held to be validly transferred to the respondent/defendant.
The courts below have also noted that if the appellant/plaintiff was the
owner of the suit property and was in possession then there was no
reason why for the last many years it was the respondent/defendant
who was regularly collecting and receiving rents from the tenants of
the suit property. Most importantly the courts below have relied upon
the letters dated 4.11.1992 admitted by the appellant/plaintiff to be
under his signatures and that of his mother Ex.PW2/D1 and
Ex.PW2/D2, and which admitted the factum of transfer of the suit
property to the respondent/defendant.
5. I completely agree with the aforesaid conclusions and
findings of the courts below because they are duly supported by both
oral and documentary evidence on record of the courts below,
especially the documentary evidence Ex. PW1/2 to Ex. PW1/11 and
Ex. PW2/D1 and Ex.PW2/D2. Since the documents in question
transferring the rights in the suit property by the mother of the
appellant/plaintiff to the respondent/defendant have been executed on
23.5.1980, i.e before the amendment of Section 53A of the Transfer of
Property Act, 1882 by Act 48 of 2001 w.e.f 24.9.2001, these
documents did not have to be stamped and registered and which was
required pursuant to the amendment by Act 48 of 2001.
6. A second appeal lies only if a substantial question of
arises. Arriving at findings of facts and law, as also arriving at
conclusions on the basis of evidence on record, does not result in
arising of any substantial question of law, more so because the courts
below have taken one possible and plausible view as per the evidence
on record.
7. There is no illegality, infirmity or perversity in the
judgments of the courts below.
8. Dismissed.
MAY 09, 2017/ib VALMIKI J. MEHTA, J
