Ranjeet Singh vs Nanki Devi And Ors
2018 Latest Caselaw 3892 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of decision: 12th July, 2018
+                RSA 48/2017 & CM No.4859/2017 (for stay)
       RANJEET SINGH                          ..... Appellant
                   Through: Mr. Abhinav Bajaj, Adv.
                          Versus
    NANKI DEVI AND ORS                        ..... Respondents

Through: Mr. Rajendra Sahu, Adv. for R-3.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 19 th September, 2016 in RCA No.08/2016 (new RCA No.661445/2016) of the Court of Additional District Judge (ADJ)-16, District Central, Tis Hazari Courts, Delhi] of dismissal of the First Appeal under Section 96 of the CPC filed by the appellant / defendant against the judgment and decree [dated 4th October, 2013 in Suit No.438/2007 of the Court of Civil Judge, District West, Tis Hazari Courts, Delhi] in favour of the predecessor of the respondents / plaintiffs and against the appellants / defendants, declaring the predecessor of the respondent / plaintiff to be having equal share as the appellant in property No. N-52, Andha Mughal, Pratap Nagar, Delhi and further declaring that the sale transaction by the appellant / defendant in favour of the respondent no.2 / defendant Rajpal @ Pappu, on the basis of mutation carried out by the respondent no.3 / defendant Land and Development Office (L&DO) in respect of the property was illegal and null and void and further holding the predecessor of the respondent no.1/plaintiff

to be entitled to get physical possession of the property to the same extent as the other heirs of Ganga Ram.

2. The appeal came up first before this Court on 7th February, 2017 when, without indicating the substantial question of law, if any arising, notice thereof was ordered to be issued and the Trial Court record requisitioned. Though the respondents / plaintiffs were served but the respondent no.1 / plaintiff has not appeared and today only the counsel for the respondent / defendant no.3 L&DO appears.

3. The counsel for the appellant / defendant has been heard on admission of the Second Appeal, which can be entertained only on a substantial question of law. The Trial Court record requisitioned has also been perused.

4. The deceased respondent no.1/ plaintiff Faquir Singh instituted the suit from which this present appeal arises, pleading (i) that Ganga Ram who was the owner in possession of the property aforesaid, lease of land whereunder had been granted by the respondent / defendant no.3 L&DO; (ii) that the said Ganga Ram died intestate leaving behind the respondent no.1 Faquir Singh, Harbans Lal and Jai Ram as his sons and two daughters viz. Kaki Kaur and Prem Kaur; wife of Ganga Ram had pre-deceased him; (iii) that Jai Ram applied to the respondent / defendant no.3 L&DO for mutation of the leasehold rights in the land underneath the property in his sole name and which was objected to by the other legal heirs of Ganga Ram including the respondent no.1 / plaintiff; (iv) that the respondent / defendant no.3 L&DO advised the respondent no.1 / plaintiff and other legal heirs to approach the Court for getting Succession Certificate or to enter into a Family Settlement; however nobody proceeded with the same and the property remained recorded in the name of Ganga Ram; (v) that later, it came to the knowledge

of the respondent no.1 / plaintiff, that the appellant / defendant Ranjeet Singh, being the son of Jai Ram, had sold the property to respondent no.2 / defendant Rajpal, in connivance with the respondent / defendant no.3 L&DO; and, (vi) that the appellant / defendant was not the exclusive owner of the property, to convey exclusive title to the property, to respondent no.2 / defendant Rajpal and the transfer of the property in the sole name of appellant / defendant was illegal and arbitrary. Reliefs, of (a) declaration that the sale transaction by the appellant / defendant in favour of the respondent no.2 / defendant Rajpal was illegal; and, (b) declaration that the respondent no.1 / plaintiff had a right, title and share in the property, with direction to handover physical possession of the property/share claimed in the suit.

5. The appellant / defendant contested the suit by filing a written statement taking the technical pleas of limitation and non-joinder and pleading, (i) that the leasehold rights in the land underneath the property were recorded in the name of Ganga Ram; (ii) that after the death of Ganga Ram, the said leasehold rights were substituted in the name of Jai Ram; (iii) that all the other heirs of Ganga Ram knew from the very first day that vide memo dated 1st November, 1988 of Assistant Settlement Commissioner, Government of India, Ministry of Urban Development, L&DO, the property was transferred in the name of Jai Ram; (iv) that after the death of Jai Ram, the property was transferred in the name of appellant / defendant vide Memorandum dated 24th June, 2005 / 13th July, 2005 of L&DO; (v) that the property having been so mutated in the sole name of appellant / defendant, no other person had any right, title, claim, interest or share in the property;

(vi) that none of the other heirs of Ganga Ram objected to the application of Jai Ram to respondent / defendant no.3 L&DO for mutation of the property

in his exclusive name and the respondent no.1 / plaintiff had no rights in the property; and, (vii) that the appellant / defendant, being the exclusive owner of the property, had sold the same to the respondent no.2 / defendant Rajpal.

6. No written statement by respondent no.2 / defendant Rajpal is found on the Trial Court record and the counsel for the appellant / defendant confirms that no written statement was filed by the respondent no.2 / defendant Rajpal and states that the respondent no.2 / defendant Rajpal was proceeded against ex parte in the suit, though is present in the Court today.

7. Respondent / defendant no.3 L&DO filed a written statement, pleading

(a) that land underneath the property was leased out to Ganga Ram; (b) after the death of Ganga Ram, one of his sons i.e. Jai Ram applied for substitution on the basis of Death Certificate and unregistered Will executed by Ganga Ram in favour of Jai Ram; (c) that while application of Jai Ram for mutation in his name was pending, a letter dated 3rd November, 1976 from respondent no.1 / plaintiff, Prem Kaur, Kaki Devi and Harbans Lal was received intimating that Ganga Ram had not left any Will in exclusive favour of Jai Ram; (d) that Jai Ram was accordingly informed that mutation in his exclusive favour could not be carried out till the order of a Court was obtained by him; (e) that thereafter Jai Ram again applied for substitution on 6th July, 1988, on the basis of No Objection Affidavits of respondent no.1 / plaintiff, Prem Kaur, Harbans Lal and Kaki Devi and stated that he had settled with his brothers and sisters and further submitted No Objection Affidavits of his brothers and sisters and on the basis whereof mutation in exclusive favour of Jai Ram was carried out; (f) that after the death of Jai Ram, the appellant / defendant as his son applied for substitution along with Relinquishment Deed of other natural heirs of Jai Ram in favour of appellant

/ defendant and accordingly mutation in favour of appellant / defendant was carried out; and, (g) that the property thus stood in the records of respondent /defendant no.3 L&DO in the name of appellant / defendant.

8. In the aforesaid state of pleadings, the following issues were framed in the suit on 31st August, 2010:

"1. Whether the plaintiff is entitled to declaration that the sale transaction is illegal and void ab initio as prayed for? OPP.

2. Whether the plaintiff is entitled to declaration with respect to right and title in share of plaintiff in joint ancestral property bearing no.N-52, Andha Mugal, Pratap Nagar, Delhi as prayed for? OPP.

3. Whether the plaintiff is entitled to possession of the share, if any falls in his favour in accordance with issue no.2? OPP.

4. Whether the suit is within limitation? OPP.

5. Whether suit of the plaintiff is bad for non-joinder and of necessary parties? OPD1.

6. Whether plaintiff has not come to court with clean hands? OPD1.

7. Relief."

9. The Suit Court decreed the suit as aforesaid, in favour of the respondent no.1 / plaintiff and against the appellant / defendant and the respondent no.2 / defendant, finding / holding / reasoning, (a) that the appellant / defendant alone appeared in his evidence and filed an affidavit by way of examination-in-chief but in cross-examination stated that he was not aware of the contents of the affidavit of examination-in-chief; (b) that the respondent / defendant no.3 L&DO examined one witness to prove the Conveyance Deed of freehold rights in land in favour of Ganga Ram, the letter of Jai Ram requesting for mutation in his name on the basis of no objection of other heirs, the affidavit submitted by Jai Ram and the letter dated 27th August, 1976 of Jai Ram to respondent / defendant no.3 L&DO

requesting for mutation in his name on the basis of Will; (c) that the witness of the respondent / defendant no.3 L&DO, in his cross-examination, stated that no Relinquishment Deeds of other heirs of Ganga Ram were called for, for mutating the property in the exclusive name of Jai Ram, since the No Objection Certificates were attested by Magistrate of First Class; (d) that it was not in dispute that the property was owned by Ganga Ram and that the respondent no.1 / plaintiff was one of the heirs of Ganga Ram; (e) that it was not in dispute that when Jai Ram applied to respondent / defendant no.3 L&DO for mutation in his exclusive favour on the basis of Will of Ganga Ram, other heirs had objected thereto; (f) that admittedly Jai Ram subsequently applied for mutation in his exclusive favour on the basis of No Objection Certificates; (g) that the No Objection Certificates of other heirs of Ganga Ram had not been produced in the Court, least proved; (h) that the appellant / defendant also had avoided mentioning in his evidence about the No Objection Affidavits allegedly executed by other heirs of Ganga Ram; (i) that there was thus nothing to justify the mutation of the property in the records of respondent / defendant no.3 L&DO from the name of Ganga Ram to the exclusive name of Jai Ram; (j) that since the appellant / defendant was not the exclusive owner of the property, he had no right to transfer the property in the exclusive name of respondent no.2 / defendant Rajpal and the sale transaction by appellant / defendant in favour of respondent no.2 / defendant Rajpal was null and void; (k) that the respondent no.1 / plaintiff, as one of the owners of the property, was entitled to get physical possession thereof; (l) that the respondent no.1 / plaintiff had proved that he came to know of the mutation, only upon sale by the appellant / defendant in favour of respondent no.2 / defendant Rajpal and the suit was thus within time; and,

(m) that the appellant / defendant was unable to prove that the suit was bad for non-joinder or that the respondent no.1 / plaintiff had not approached the Court with clean hands.

10. The First Appellate Court in its judgment has noted the factum of respondent no.2 / defendant Rajpal having been proceeded ex parte in the suit on 27th May, 2009 and that the only contention of the appellant / defendant in the First Appeal was, that the Suit Court had not correctly appreciated the facts and the evidence.

11. The First Appellate Court, with respect to the issue of limitation, held that the respondent no.1 / plaintiff had shown that the suit was filed within the period prescribed in Article 58 of the Schedule to the Limitation Act, 1963 and the appellant / defendant had not led any evidence to show that the respondent no.1 / plaintiff knew about the mutation by respondent / defendant no.3 L&DO in favour of Jai Ram at any earlier point of time.

12. The First Appellate Court, with respect to the contention of the counsel for the appellant / defendant, that the respondent no.1 / plaintiff had not sought declaration qua mutation in the name of Jai Ram and that without seeking such declaration, declaration qua sale by appellant / defendant in favour of respondent no.2 Rajpal could not be claimed, held that the same was without any merits because the appellant / defendant had failed to prove any knowledge by the respondent no.1 / plaintiff of mutation in favour of Jai Ram; rather, the appellant / defendant in the written statement had admitted that the respondent no.1 / plaintiff and other heirs of Ganga Ram had opposed the mutation claimed by Jai Ram on the basis of Will of Ganga Ram and which application was not allowed. The First Appellate Court further held that the appellant / defendant, in cross-examination of the respondent

no.1 / plaintiff, had been unable to shake the case of the respondent no.1 / plaintiff in the plaint.

13. The counsel for the appellant / defendant has argued, (i) that the two Courts did not consider that the suit for declaration simpliciter, without seeking cancellation of mutation in favour of Jai Ram of the year 1988, was bad; and, (ii) that the two Courts have not considered the documents on the basis of which mutation in favour of Jai Ram was carried out. It is argued that the said mutation is on the basis of Will of Ganga Ram in favour of Jai Ram.

14. I however asked the counsel for the appellant / defendant, whether the Will was proved.

15. The counsel for the appellant / defendant replied, that since mutation had already been carried out in favour of Jai Ram, Will was not required to be proved.

16. However, the falsity of the aforesaid argument is borne out on perusal of the Trial Court record, which discloses as aforesaid that it was not the case of the appellant / defendant in the written statement that mutation in his favour was on the basis of the Will. Rather, it was admitted in the written statement that the mutation applied for on the basis of the Will was given up. It is not understandable as to on what basis the counsel for the appellant / defendant is today arguing that the mutation was on the basis of Will. The appellant / defendant, in the second application for mutation in his exclusive name and in pursuance to which mutation in his name was carried out, relied only on the No Objection Affidavits of the other heirs and not on the Will.

17. The counsel for the appellant / defendant has also argued that the mutation in the exclusive name of Jai Ram in the records of the respondent /

defendant no.3 L&DO made Jai Ram the sole and absolute owner of the property after the demise of Ganga Ram. I have however asked the counsel for the appellant / defendant, whether mutation entries can vest title.

18. Though the counsel for the appellant / defendant has not ventured a reply, but I may mention that the consistent view of the Courts in Mohinder Singh Verma Vs. J.P.S. Verma (2014) AIR DLT 432, Sehdev Singh Verma Vs. J.P.S. Verma AIR 2016 Del 1 (DB), Hari Ram Gupta Vs. Madan Lal Gupta (2008) 155 DLT 155 (DB) and Municipal Corporation, Gwalior Vs. Puran Singh (2015) 5 SCC 725 holds that mutation entries of L&DO and / or municipality do not create title. Thus, the appellant / defendant, on the basis of the said mutation entries, did not acquire any exclusive ownership rights in the property and the property remained the property of Ganga Ram and in which the respondent no.1 / plaintiff, as an heir of Ganga Ram, inherited a share on the demise of Ganga Ram.

19. There is another aspect of the matter. The appellant / defendant, after admitted sale of the property in favour of the respondent no.2 / defendant Rajpal, was not left with any right, title or interest in the property and the property vested in respondent no.2 / defendant Rajpal. The respondent no.2 / defendant Rajpal however chose not to contest the suit and was proceeded against ex parte. The respondent no.2 / defendant Rajpal is not aggrieved of the judgment of the Suit Court divesting him from the title which he had acquired from the appellant / defendant. I have thus asked the counsel for the appellant / defendant as to what is the interest of the appellant / defendant, in the property for the appellant / defendant alone to have preferred the First Appeal and having preferred this Second Appeal.

20. The counsel for the appellant / defendant states that the appellant / defendant preferred the appeals because the judgment is against him.

21. Even though the judgment of the Suit Court is against the appellant / defendant but since the judgment pertains to title in immovable property and which the appellant now no longer possesses or holds, the locus of the appellant / defendant to pursue this appeal is not understandable. Rather, the consistent conduct of the appellant / defendant is found to be of fraud and of taking false stand in the legal proceedings. The plea of sale in favour of respondent no.2 / defendant Rajpal appears to be a part of the said fraud practiced by the appellant / defendant in conduct of the legal proceedings from which this appeal arises.

22. The counsel for the appellant / defendant, during dictation interrupts me to also contend that the finding of the Suit Court, of the affidavits of no objection of other heirs of Ganga Ram having not been placed on record, is wrong. Moreover, upon being asked to point out the said affidavits of no objection in the trial court record, attention is drawn to page 325 thereof bearing Ex.DW1/4 but which is a photocopy of the affidavit of Jai Ram. On further enquiry, it is stated that affidavit of respondent no.1 / plaintiff is at page 327 of the Trial Court record. However, the said affidavit does not bear any exhibit mark. The counsel for the appellant / defendant however states that Ex.DW1/4 is with respect to the affidavit of Jai Ram as well as affidavit of the other legal heirs of Ganga Ram and attention in this regard is drawn to the affidavit by way of examination-in-chief of the witnesses of the respondent / defendant no.3 L&DO at page 123 of the Trial Court record, para no.7 of which affidavit is as under:

"7. That the property was substituted in favour of Shri Jai Ram after he submitted no objection affidavits of all the legal heirs of the late Shri Ganga Ram is Ex.DW1/4."

and to the examination-in-chief recorded of the said witness on 5th February, 2013 as under:

"Suit No.438/2007 D3W1 Sh. V.K. Rajan S/o Sh. V.K. Kuttappan, Deputy Land and Development Officer, L&DO, Nirman Bhawan, New Delhi. On S.A.

I hereby tender my evidence by way of affidavit Ex.D3W1/X bearing my signature at point 'A & B'. I rely on documents exhibited as Ex.D3W1/1 to D3W 1/5. The documents referred to in my affidavit as Ex DW1/1 to Ex DW 1/5 are now exhibited as Ex D3W1/1 to D3W1/5. All the documents original seen and returned. The averments made in my affidavit are true and correct. XXXXXX deferred at the request of Ld. Counsel for plaintiff.

RO&AC

Sd/-

(Richa Gusain Solanki) Civil Judge (West) THC, Delhi/05.02.2013"

The counsel for the appellant / defendant however admits that the affidavits of no objection of none of the other heirs of Ganga Ram are on record.

23. Ordinarily, when a bunch of documents is collectively exhibited and / or admitted into evidence in the Trial Courts, against the exhibit mark, word "COLLY" in brackets is written. No such word is found to be written against Ex.DW1/4 put on the affidavit of Jai Ram. From the fact that "No Objection Affidavits" of the other heirs of Ganga Ram, though mentioned in para no.7 reproduced above, are not on record, it is evident that Ex.DW1/4 was not put collectively on affidavit of Jai Ram and on affidavit of other heirs of Ganga Ram or on affidavit of respondent no.1 / plaintiff.

24. Moreover, there is no evidence, of signatures on the affidavit purported to be of respondent no.1 / plaintiff, having been identified by any person whatsoever. Admittedly, the counsel for the appellant / defendant, in cross-examination of the respondent no.1 / plaintiff did not confront the respondent no.1 / plaintiff with the purported affidavit of respondent no.1 / plaintiff. Though the counsel for the appellant / defendant has argued, that the affidavit was put by the counsel for the respondent / defendant no.3 L&DO in cross-examination of the respondent no.1 / plaintiff, but a perusal of the cross-examination of respondent no.1 / plaintiff by respondent / defendant no.3 L&DO also does not show so. By no canon of the law relating to evidence, it can be said that No Objection Affidavit of respondent no.1 / plaintiff has been proved.

25. Once it is found that the mutation got effected by Jai Ram in his exclusive name was not in accordance with law and without the respondent / defendant no.3 L&DO following the requisite procedure, and evidently in collusion with Jai Ram, no error can be found in the consistent judgments of the Courts below. The conduct of the appellant / defendant, of first seeking mutation in his exclusive name on the basis of Will of Ganga Ram and upon failing in the said endeavor, applying for mutation on the basis of No Objection Certificates of other heirs of Ganga Ram and which No Objection Certificates have not been proved and thereafter of sale of property to respondent no.2 / defendant Rajpal who is not aggrieved from being divested of exclusive title, is highly suspicious.

26. In fact, as the aforesaid would show, no substantial question of law also arises for adjudication, for the Second Appeal to be entertained. Rather, the appellant / defendant is found to be guilty as aforesaid, of making false

pleadings, affirming false affidavit and practising fraud in the course of legal proceedings. The appellant / defendant through counsel is also found to have made arguments contrary to record before this Court.

27. I have toyed with the idea of directing prosecution of the appellant / defendant in exercise of powers under Section 340 Cr.P.C., for the offences of which he is prima facie found guilty.

28. The counsel for the appellant / defendant, under instructions from the appellant / defendant present in Court states that the powers under Section 340 Cr.P.C. be not exercised and the appellant, in order to atone his sins, will deposit costs of Rs.1,50,000/- in whosesoever favour it may be directed by this Court.

29. The appellant / defendant, on enquiry states that he is willing to furnish an undertaking in this regard to this Court.

30. The appellant / defendant undertakes to this Court to, on or before 28 th July, 2018, deposit costs of Rs.1,50,000/- with the Delhi High Court Advocates Welfare Trust.

31. The undertaking of the appellant / defendant is accepted and the appellant / defendant is bound thereby and cautioned of the consequences of breach of undertaking given to this Court.

32. The appeal is dismissed.

Decree sheet be drawn up.

28. List 9th August, 2018, only for the appellant / defendant to show proof of deposit of cost of Rs.1,50,000/-.

RAJIV SAHAI ENDLAW, J.

JULY 12, 2018/'gsr'..