Delhi High Court
Vishal Sharma & Ors vs Municipal Corporation Of Delhi & ... on 12 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 12th July, 2018
+ RSA 83/2018
VISHAL SHARMA & ORS ..... Appellants
Through: Mr. Pradeep Kumar, Adv.
Versus
MUNICIPAL CORPORATION OF DELHI
& ORS .....Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CMs No.21715/2018 & 21717/2018 (both for exemption)
1. Allowed, subject to just exceptions.
2. The applications are disposed of.
RSA 83/2018 & CMs No.21714/2018 (for stay) & 21716/2018 &
21718/2018 (for condonation of delays of 406 in filing and 37 days in
re-filing the appeal respectively)
3. This Regular Second Appeal under Section 100 of the Code of
Civil Procedure, 1908 impugns the judgment and decree [dated 23rd
November, 2016 in RCA No.84/16/10 (Unique Case ID
No.02402C0178082010) of the Court of Additional District Judge
(ADJ)-01 (East), Karkardooma Courts, Delhi] of dismissal of first appeal
under Section 96 of the CPC filed by the predecessor of the six
appellants, and in which appeal the six appellants were substituted on
demise of their predecessor, against the judgment and decree [dated 17th
April, 2010 in Original Suit No.177/1993, New Suit No.430/2002 of the
Court of Additional Senior Civil Judge (East), Karkardooma Courts,
Delhi] of dismissal of the suit for declaration, possession, damages and
mesne profits filed by the predecessor of the appellants.
4. The appeal is accompanied with CM No.21716/2018 for
condonation of 406 days delay in filing thereof and with CM
No.21718/2018 for condonation of 37 days delay in re-filing thereof.
5. The reasons stated for the delay in filing the appeal are that (i) on
the demise of the predecessor of the appellants on 4 th November, 2013,
the appellants were substituted in his place in the First Appellate Court;
(ii) the appellant No.1 Vishal Sharma is the only male member in his
family, with the appellant No.2 Smt. Indermani Sharma being a senior
citizen and appellant No.3 Smt. Zinu Sharma being a female and unable
to pursue the present appeal and the appellants No.4 to 6 namely Smt.
Dimple Sharma, Smt. Mona Sharma and Smt. Sonu Sharma being
married; (iii) the appellant No.1 could not appear regularly during the
pendency of the First Appeal owing to ailments and was dependent upon
the counsel engaged by the appellants; (iv) however the said counsel,
despite asking several times, did not apprise the appellants about the
status of the appeal; (v) the said counsel, only on 28th June, 2017
informed that the appeal had been dismissed but did not disclose the date
of the dismissal; (vi) that prior to the demise of the predecessor of the
appellants, the said predecessor only was conducting the case and the
appellants were innocent about the procedure of the Court; (vii) the
counsel who has filed the present appeal was engaged "in the month of
July" and inspected the file on "26/08/2017" and applied for certified
copies; (viii) it was learnt that "labour court has been shifted to Dwarka
Court due to which certified copy could not be received"; (ix) finally on
"20th January, 2016" the certified copies were received; (x) since the
appellant No.1 is suffering from some ailment, he could not file the
Second Appeal within time and hence the application for condonation of
delay of 406 days; (xi) 148 days taken in obtaining certified copies is to
be excluded; and, (xii) total delay is of 431 days.
6. The averments in the application for condonation of delay are
undecipherable and inconsistent. While on the one hand, it is stated that
the counsel before the First Appellate Court informed of dismissal of
appeal on 28th June, 2017, on the other hand, it is stated that the certified
copies were received on 20th January, 2016. It is not clear as to
condonation of how many days delay is sought and on what basis it has
been computed. While in para 14 of the application for condonation of
delay, it is stated that the delay is of 431 days, in the prayer paragraph, it
is stated that the delay is of 406 days. It appears that the appellant and
his counsel have signed the application and sworn the affidavit in
support thereof, without even reading the same. It is also not
understandable as to why reference to Labour Court is being made.
7. A perusal of the certified copy of the judgment of the First
Appellate Court shows endorsement thereon of the same having been
applied on 1st December, 2017 and having been collected on 20 th
January, 2018. This appeal was filed first on 12th March, 2018 but
apparently with defects and thereafter repeatedly refiled and has come
before this Court today for the first time.
8. The aforesaid dates do not match with what is pleaded in the
application for condonation of delay.
9. Even if the knowledge of dismissal on 23rd November, 2016 of the
First Appeal was gained first on 28th June, 2017, there is no reason
pleaded for applying for certified copy only on 1st December, 2017. It is
quite evident that the factual statements in the application for
condonation of delay are false and have been affirmed without any
regard to truth.
10. The aforesaid does not entitle the appellants to condonation of
delay.
11. Even on merits, the averments in the application for condonation
of delay are vague. It is not pleaded as to who was the Advocate in the
First Appellate Court, when were the enquiries made from him, why it is
the appellant No.1 only who could have conducted the case and not the
other appellants who will also have a share in the property with respect
to which suit from which this appeal is filed. In today's date and time,
condonation of delay cannot be claimed merely by pleading gender or
marriage. The married sisters of the appellant no.1 i.e. appellants no.4 to
6, merely by marriage, cannot be said to have disabled themselves from
pursuing their interest; they have not abandoned or relinquished their
share in the property. Rather, by their marriage, their husbands have also
become members of family and will also be beneficiary of the property
subject matter of appeal and could have acted. The appellant no.3, being
unmarried sister of appellant no.1, similarly could have acted. No
particulars have been given of the vocation of the appellants. It cannot
be ascertained, whether the appellants, while going about their respective
vocations normally were lethargic only in preferring the appeal.
12. It has become common that one lawyer blames the previous,
without even eliciting from the counsel who is blamed, whether the
litigants acted negligently. The counsel for the appellants today also is
unable to tell even the name of the previous counsel to whom negligence
and breach of ethics and conduct is attributed. No credence can be given
to such averments.
13. Though it is stated that the appellant No.1 was ill, but no
particulars of his ailment have been given. The photocopies of the
medical certificates purported to be filed to show such ailments, do not
inspire confidence. The said certificate also are of 1st December, 2016 of
the ailment of an enlarged liver.
14. The counsel for the appellants is unable to tell the vocation of the
appellant No.1 i.e. whether he is an employee or carrying on his own
business and is also unable to tell whether the appellant No.1 was on
leave or had shut down his business for over two years.
15. Thus, even if the averments in the application for condonation of
delay were to be given any meaning, no ground for condonation is made
out.
16. Thus, the applications for condonation of delay are liable to be
dismissed.
17. Though the appeal is liable to be dismissed as barred by time but
to satisfy the judicial conscience, I have also gone through the entire
Trial Court record filed along with the memorandum of appeal and have
also given an opportunity to the counsel for the appellants to make
submissions on merits.
18. The predecessor of the appellants, on 7th August, 1993, filed the
suit from which this appeal arises, pleading (i) that he was the absolute
owner of plot No.178 min Block-B, Southern Portion, measuring 422 sq.
yds., in Khasra No.728/5 situated in Village Jhilmil Tahirpur, Delhi
Shahdara; (ii) that he had occupied the said plot in April, 1978 and had
started claiming himself to be in adverse and hostile possession to Smt.
Rameshwari Chand Devi, owner of the said plot of land and everybody
else; (iii) that he was in continuous possession of the said land till 4th
March, 1993, when he was dispossessed therefrom by the
respondent/defendant Municipal Corporation of Delhi (MCD) and its
officials; (iv) that he had also constructed two rooms and boundary wall
on the aforesaid plot of land; (v) that he had perfected his title to the
aforesaid plot by remaining in adverse possession of the land for over 12
years; (vi) however, Rameshwari Chand Devi in September, 1987 had
picked up quarrel with him and in order to avoid litigation, he had paid
Rs.42,000/- to her towards purchase price of the land against registered
receipt and she had also executed an Agreement to Sell and General
Power of Attorney in his favour and the sale was completed; and, (vii)
that the officials of the respondent/defendant MCD dispossessed him on
his refusing to illegally gratify them. Thus, the reliefs of declaration of
ownership to the property and of recovery of possession with mesne
profits and damages on account of demolition were claimed.
19. The respondent/defendant MCD and its officials contested the suit
by filing a written statement denying the averments in the plaint and
inter alia pleading (a) that the subject land was owned by the erstwhile
Municipal Committee, Delhi and on coming into force of the Delhi
Municipal Corporation Act, 1957 vested in the respondent/defendant
MCD which was the owner thereof and in possession thereof; (b) that the
predecessor of the appellants was never in possession of the said land;
(c) that the predecessor of the appellants had tried to encroach upon the
said land on 8th February, 1993 and which attempt was frustrated by the
respondent/defendant MCD.
20. In the aforesaid state of pleadings, the following issues were
framed in the suit on 6th February, 1996:
"1. Whether the plaintiff is the owner of the suit
property as claimed in the plaint? OPP
2. Whether the plaintiff had raised any illegal construction
and defendant had demolished the same to save
encroachment? OPD
3. Whether the defendants have illegally dispossessed
the plaintiff from his property in suit?
4. Whether there is any valid written statement filed
on behalf of defendant No.1 to 5?
5. Whether the plaintiff is entitled to the possession,
damages and use and occupation charges? If so, to
what extent? OPP
6. Relief."
21. The Suit Court dismissed the suit, finding/reasoning (i) that though
the predecessor of the appellants in the plaint claimed to have perfected
his title by adverse possession in the year 1990 but had also claimed
purchase of land from the previous owner thereof i.e. Rameshwari Chand
Devi, in the year 1987 and thus no case of adverse possession was made
out; (ii) that the predecessor of the appellants, in proof of his possession
of land, had proved a rent agreement of letting of one of the rooms along
with Ration Card of the tenant on the said address but only a photocopy of
the Ration Card was filed and there was overwriting of the address
thereon; (iii) thus, it could not be said that the predecessor of the appellant
had put anybody into possession of any part of the property as tenant; (iv)
that the registered receipt of money executed by Rameshwari Chand Devi
did not mention that the money received was by way of sale consideration
of the property and in fact did not refer to the property; (v) that the
Agreement to Sell and General Power of Attorney executed by
Rameshwari Chand Devi did not confer title on the predecessor of the
appellants; (vi) that there was no evidence to show that Rameshwari
Chand Devi was the owner, to be able to convey any title in the property
to the predecessor of the appellants; and, (vii) that there was no evidence
to show that the predecessor of the appellants had raised any construction.
Accordingly, the suit was dismissed.
22. The First Appellate Court has dismissed the appeal preferred by the
appellants, affirming the findings of the Suit Court and in addition
reasoning (a) that Rameshwari Chand Devi, claimed to be the earlier
owner and from whom the predecessor of the appellants claimed title, had
not been examined; (b) that receipt, General Power of Attorney and
Agreement to Sell also had not been proved in accordance with law and
only copies thereof were produced; (c) that while in the Agreement to
Sell, the sale consideration was Rs.40,000/-, the registered receipt was for
Rs.42,000/-; and, (d) that the respondent/defendant MCD had proved title
documents in its favour with respect to the said land as DW1/1 and which
were not challenged. Accordingly, the First Appeal was dismissed.
23. The counsel for the appellants, on being asked to address on the
merits, has only drawn attention to page 82 of the paper book being the
copy of the General Power of Attorney claimed to have been executed by
Rameshwari Chand Devi. However, on enquiry, as to how the same
constitutes a document of title, the counsel has no reply.
24. No other arguments have been urged by the counsel for the
appellants.
25. I may add that the plaint in the suit was in fact liable to be rejected
and the suit ought not to have been put to trial. The predecessor of the
appellants, in the suit, was claiming to be the owner by adverse possession
as well as by lawful title to the property. It has been held in (i)
Annasaheb Bapusaheb Patil Vs. Balwan alias Balasaheb Bapusaheb
Patil (1995) 2 SCC 543; (ii) Vidya Devi alias Vidya Vati Vs. Prem
Prakash (1995) 4 SCC 496; (iii) Mohan Lal Vs. Mirza Abdul Gaffar
(1996) 1 SCC 639; (iv) Karnataka Board of Wakf Vs. Government of
India (2004) 10 SCC 779; (v) T. Anjanappa Vs. Somalingappa (2006) 7
SCC 570; (vi) P.T. Munichikkanna Reddy Vs. Revamma (2007) 6 SCC
59; and, (vii) Mandal Revenue Officer Vs. Goundla Venkaiah (2010) 2
SCC 461 that the two are antithetical and cannot coexist. The predecessor
of the appellants having sued for recovery of possession on the basis of
title and a perusal of the plaint not disclosing any title to the property in
the predecessor of the appellants, the plaint was liable to be rejected.
26. Only a semblance of proposing the substantial questions of law has
been made in the memorandum of appeal but merely in the form of issues
and which do not constitute questions of law let alone substantial
questions of law.
27. Thus, no question for entertaining this Second Appeal is made out.
28. Thus, on merits also, no case for entertaining this Second Appeal is
made out.
29. Dismissed.
RAJIV SAHAI ENDLAW, J.
JULY 12, 2018
Bs..
