Vinod Kumar @ Vinod Singh & Anr vs Zakir Husain
2019 Latest Caselaw 3704 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Date of Decision:- 08.08.2019
+      RFA 571/2019 & C.M. No.28506/2019
       VINOD KUMAR @ VINOD SINGH & ANR            ..... Appellants
                       Through    Mr.N.K.Sahoo, Adv.

                             versus

       ZAKIR HUSAIN                                       ..... Respondent

                             Through    Mr.Priyank    Sharma, Adv with
                             Mr.K.S.Singh, Adv.

       CORAM:
       HON'BLE MS. JUSTICE REKHA PALLI

       REKHA PALLI, J (ORAL)

1. This regular first appeal under section 96 of the Code of Civil Procedure Code, 1908 ('CPC') assails the judgment and decree dated 11.04.2019 passed by the learned Additional District Judge, Shahadara, Karkardooma Courts, Delhi in C.S.No.891/2017, whereby the respondent's/plaintiff's suit for possession was decreed under order XII rule 6 CPC on an admission made by the appellant/defendant.

2. The brief facts as emerge from the record are that the respondent's predecessors/original plaintiffs namely, Shakra Begum and Ravia, claimed to have purchased the property bearing no. 49 in Khasra No. 27/20, village Khureji Khas along with the superstructure thereof ('suit property') from one Mrs.Poonam Agarwal, by way of a registered sale deed dated 28.04.2008. The subject suit was instituted

by them against the appellant No.1, who was an ex employee of the erstwhile owner, Mrs. Poonam Agarwal, and his wife Ms.Madhu Chauhan/appellant No.2. In the plaint it was claimed that at the time of execution of the sale deed, the plaintiffs were handed over the possession of the entire suit property, except one room where the leather bags of the erstwhile owner had been stored. It was further stated that though the symbolic possession of this room had also been handed over to the original plaintiffs, the actual possession thereof was to be handed over to them after the bags were removed by Mrs. Poonam Agarwal. The plaint further averred that the appellants/plaintiffs had illegally trespassed into the said room on 1.05.2008, whereafter they not only removed the goods of the plaintiff from the entire suit property with the help of the police officials, but also caused grievous injuries to them and tried to implicate them in false criminal cases.

3. The appellants filed their written statement opposing the suit, wherein it was firstly contended that the plaintiffs had no locus standi to prefer the suit as the registered sale deed dated 28.04.2008 executed in their favour by Mrs. Poonam Agarwal was a sham and bogus as she did not have any right or title in the suit property. The appellants claimed that they had in fact, already purchased the suit property on 17.08.2005 from one Mr.Gian Chand Bakarwal by way of a general power of attorney (GPA) after paying a sum of Rs.6 lakh to him as consideration. It was further claimed that the said Mr.Gian Chand Bakarwal had colluded with the respondent's husband, Mr.Lalit Kumar Aggarwal, to illegally eject the appellants from the property,

by executing a fraudulent GPA in favour of the erstwhile owner Mrs. Poonam Agarwal, at the behest of her husband.

4. During the pendency of the suit, the present respondent, who had purchased the property from the original plaintiff on 20.12.2010, was substituted as a plaintiff in the subject suit vide order dated 25.01.2012.

5. As it clearly appeared from their written statement that the appellants were not denying that a GPA had ever been executed in their favour, but were instead trying to dispute the respondent's/plaintiff's title by challenging the sale deed in their favour, the respondent filed an application under order XII rule 6 CPC seeking judgment on this admission of the appellants. In order to further strengthen their case under order XII Rule 6 CPC, they placed reliance on the admission of appellant no.2 in the suit filed by her against the BSES, seeking an electricity connection, wherein she had categorically stated that she was a tenant of the erstwhile owner of the suit property; Ms.Poonam Agarwal. In their reply to the said application, the appellants reiterated their submissions without being able to substantiate their title to the suit property.

6. In these circumstances, the learned trial Court after examining the fact that the appellant no.2 had made a categorical admission in the judicial proceedings instituted by her against BSES, that she was the tenant in the suit property as also the fact that the appellants had not been able to prove their title to the property, decreed the suit for possession by directing the appellants to vacate the suit premises on

or before 30.06.2019 by observing as under:-

"25. After careful analysis:-

(a) The defence put up by the opponents to the IA is clearly evasive and vague.

(b) The defendants have no title; not to speak of the better title than that of the plaintiffs.

(c) That the admissions found in Ex.PW 1/3 is to the effect that the defendant no.2 is a tenant under Poonam Aggarwal.

(d) The said Poonam Aggarwal had alienated the title in the property in favour of the original plaintiffs.

(e) The defendants who are aware about the alienation of title in favour of the original plaintiffs have not cared even to seek the counter-claim to declare the sale deed as null and void or not binding on the defendants who put up some vague title.

(f) The defendants have not initiated any legal proceedings against Poonam Aggarwal and Lalit Kumar Aggarwal whom they allege as having cheated the defendants.

(g) The substituted plaint had derived the title and sought to be substituted.

(h) The order of Ld. ADJ (East District) dated 25.01.2012 allowing the IA u/o 22 rule 10 of CPC had become final."

7. Being aggrieved by the said judgment and decree, the present appeal has been filed.

8. Mr.Sahoo, learned counsel for the appellant submits that the trial Court has failed to appreciate that in view of the appellants raising a dispute regarding the title of the respondent, it was incumbent upon the respondent to implead Mrs. Poonam Agarwal from whom they claimed to have purchased the suit property. Learned counsel for the appellants further submits that the admission

made by appellant no.2 in her suit against the BSES ought not to have been accepted by the trial Court as she was suffering from genetic psychiatric ailments for which she has been under treatment since 2007. In support of his aforesaid contention, he relies on medical documents filed in the present appeal by way of an additional affidavit.

9. Mr.Sahu further submits that the trial Court has erred in allowing the respondent's application under Order XII Rule 6 CPC and contends that a perusal of the written statement shows that various triable issues had been raised by the appellants and that it was not at all a case where a decree on admission was warranted. He submits that once Mrs.Poonam Agarwal was not impleaded as a party respondent, the suit itself was not maintainable and was liable to be rejected. He further submits that irrespective of the fact that the appellants were not able to establish their title to the suit property, the suit could not be decreed till the title of the respondents was established. He therefore, prays that the appeal be allowed and the matter be remanded back to the trial Court for a full-fledged trial.

10. I have considered the submissions of the learned counsel for the appellants and, with his assistance, perused the record. I have also examined the additional documents filed by the appellant no.2 in support of her plea that she was suffering from genetic psychiatric ailments thereby rendering her admission in the suit filed against BSES inadmissible.

11. Having given my thoughtful consideration to the submissions of the learned counsel for the appellants, I am unable to find any

reason to interfere with the impugned judgment. Not only do I find that the additional medical documents sought to be relied upon by the appellants were mostly issued after the last date of hearing, but even otherwise the learned counsel for the appellants has been unable to answer as to why and in what circumstances the appellant no.2, who had admittedly been granted an electricity connection after filing the suit, made a specific averment in her plaint that she was the tenant of Ms.Poonam Agarwal, the erstwhile owner of the suit property. The pleadings in the suit filed by appellant no.2 against BSES were vetted by a counsel and were the very basis of sanctioning an electricity connection in her favour and, therefore, I see no reason to discard the admission made by her in those judicial proceedings. In any event, the appellants have neither been able to establish their title to the suit property nor have they been able to demonstrate any reason to discard the registered sale deed in favour of the plaintiffs. In my view, the trial Court was fully justified in discarding the plea of the appellants that they had been defrauded by Mrs.Poonam Agarwal and Mr.Gian Chand Bakarwal as, admittedly, the appellants have not initiated any action in this regard against the aforesaid two persons. Ultimately, the appellants have been unable to dispute the title of the plaintiffs in any manner and have merely stated that the registered sale deed executed by Mrs.Poonam Agarwal is sham and bogus, which plea has been rightly rejected by the trial Court. In the light of the aforesaid, I have no hesitation in concurring with the learned trial Court that this was a fit case for passing a judgment on admission.

12. For the foregoing reasons, I find no merit in the appeal which is dismissed.

REKHA PALLI, J AUGUST 08, 2019 sr