Delhi High Court
Ram Bharat Sharma vs Ram Kishore Sharma on 16 January, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 288/2017
% 16th January, 2019
RAM BHARAT SHARMA ..... Appellant
Through: Mr. Amit K. Nain and Mr.
Gagandeep Sharma, Advocates
(9911002144)
versus
RAM KISHORE SHARMA ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM No. 1774/2019 (Exemption)
Exemption allowed subject to just exceptions
CM stands disposed of.
CM Nos. 1776/2019 (delay in filing the review petition) &
1777/2019 (delay in re-filing)
For the reasons stated in the application, delays in filing and re-
filing the review petition are condoned.
CMs stand disposed of.
Review Petition No. 14/2019 (filed against the order dated
18.09.2018)
1. This appeal was disposed of by a Consent Order, in the
presence of the appellant, on 18.09.2018, and this Order dated
18.09.2018 reads as under:
"CM No. 38111/2018 (for waiving of cost)
1. There is no opposition to this application which is allowed,
alongwith the fact and as recorded hereinafter that the appeal is not
pressed.
CM stands disposed of.
CM. 38112/2018 (Exemption)
2. Exemption allowed subject to just exceptions.
CM stands disposed of.
RFA No.288/2017
3. On the oral prayer of the appellant, the appeal is
restored but appeal is disposed of as not pressed with the appellant
being granted time to vacate the suit property on or before 31.3.2019.
Also, the claims towards mesne profits are satisfied because
respondent has received from the appellant a sum of Rs.25,000/- after
passing of the impugned judgment and decree, and in case the
appellant vacates the suit property on or before 31.3.2019 then the
respondent will fairly give up any other claims towards
damages/mesne profits. Appellant will however clear charges towards
electricity, water etc as payable for the suit premises till the time the
appellant stays in the suit property.
4. Let the appellant file his affidavit of undertaking in
this Court in terms of the present order within 10 days, and on the
appellant filing the undertaking and complying with the terms of the
same, while disposing of the appeal as not pressed and restricting the
claim to the mesne profits of Rs.25,000/- in favour of the appellant,
appellant will positively vacate the suit property as per the affidavit of
undertaking to be filed on or before 31.3.2019.
5. Appeal is accordingly disposed of in terms of the
aforesaid consent order."
2. The aforesaid Order shows that the appeal had been
dismissed in default and after restoring it was disposed of as not
pressed and the appellant/defendant was granted time to vacate the suit
premises on or before 31.03.2019 with the appellant/defendant getting
the benefit of decree for mesne profits which stood satisfied on the
respondent/plaintiff receiving a sum of Rs. 25,000/- only. I may note
that the parties to the suit and the appeal are real brothers.
3. Before turning to the facts as stated in the review petition
and the connected applications, it is noted that the subject suit was
filed by the respondent/plaintiff against the appellant/defendant with
respect to the property bearing no. RZ-C-2/147, Gali No.2, Mahavir
Enclave, Part-II, New Delhi situated on a plot of 45 sq. yds. The
respondent/plaintiff pleaded to be the owner of the suit property in
terms of the documents executed in his favour in 1985 by Sh.
Baleshwar being the usual set of documents i.e. the agreement to sell,
power of attorney etc. The appellant/defendant being the elder brother
was at his request permitted to stay in the suit property. As the
appellant/defendant failed to vacate the suit property, the
respondent/plaintiff served the Legal Notice, and thereafter filed the
suit.
4(i). The appellant/defendant in his written statement claimed
that he had purchased the suit property in 1984 for consideration of
Rs. 5500/-, and that the original documents of the suit property were
handed over by the appellant/defendant to the respondent/plaintiff on
10.09.2001 to obtain an electricity connection. It is stated that the suit
is filed by the respondent/plaintiff on the basis of forged and
fabricated documents and thus the suit was prayed to be dismissed.
4(ii). During the trial, the respondent/plaintiff proved the title
documents in his favour as Ex.PW1/B (colly) from the previous owner
Sh. Baleshwar. Other documents were also duly proved as stated in
para 12 of the impugned judgment, which reads as under:
"12. PW1 has reiterated the contents of the plaint in her affidavit in
the nature of examination in chief Ex. PW1/1. She also proved the
site plan of the suit property as Ex. PW1/A, the copies of GPA,
agreement to sell, affidavit and receipt executed by the previous
owner Sh. Baleshwar in favour of her husband as Ex. PW1/B
(colly), copy of complaint dated 15.11.2006 lodged by her husband
in PS Dabri as Ex. PW1/C1, copy of another complaint dated
23.4.2011 as Ex. PW1/C4, legal notice got served upon the
defendant as Ex. PW1/D, its postal receipt as Ex. PW1/E, copy of
pass book of her husband as Ex. PW1/G, copy of passport of her
husband as Ex. PW1/H, copy of water bills of the suit property as
Ex. PW1/I and copy of electricity bill dated 09.12.2004 related to
the suit property as Ex. PW1/J.
5. The appellant/defendant however led no evidence to
show ownership of the suit property and the same is recorded in paras
16 to 19 of the impugned judgment, and these paras read as under:
16. In view of the above noted oral as well as the documentary evidence
led by the plaintiffs, the burden shifted upon the defendant to prove his
ownership regarding the suit property. In his written statement, the
defendant has claimed to have purchased the plot of land, upon which the
suit property existed, admeasuring 45 sq. yards in the year 1984. He has
nowhere mentioned the name and other particulars of the person from
whom he had purchased the same. He has not mentioned the name of the
seller even in his affidavit in evidence Ex. DW1/A. No document at all has
been produced or proved by the defendant on the basis of which he claims
to have purchased the suit property.
17. Thus there is nothing on record, except the oral testimony of the
defendant (DW1) and his wife (DW2) to show that the defendant was the
owner of the suit property having purchased it in the year 1984. It be noted
here that the title to an immoveable property can only be proved by way of
requisite title documents and not merely by leading oral evidence.
18. The defendant has tried to explain the absence of title documents of the
suit property with him by saying that he had handed over those to the
plaintiff to enable him to obtain electricity connection in the suit property
and the plaintiff later on did not return those to him. It is further stated by
the defendant that he had lodged a written complaint in this regard against
the defendant in PS Dabri on 30.10.2001. However, he has not field on
record any copy of such complaint. He also did not serve any notice upon
the plaintiff either before the filing of the suit or during the proceedings of
the suit calling upon him to produce those original documents before this
court. Even if it be assumed for the sake of argument that defendant had
handed over the original title documents of the suit property to the plaintiff
and the plaintiff did not return those to him later on, yet the defendant
could have easily proved his ownership of the suit property by producing
the copies of the title documents and by examining the seller as a witness.
To the contrary, he has neither mentioned the name of the seller in his
pleadings or in his evidence, now has filed any copy of his title documents.
19. Therefore, the defendant has clearly failed to discharge his burden of
proving the purchase of suit property by him in the year 1984, as
contended by him.
6. It is in the light of the aforesaid facts that the trial court
decreed the suit filed by the respondent/plaintiff, and the
appellant/defendant in his own interest therefore agreed to the Consent
Order on 18.09.2018 in his presence.
7. Now today, a new counsel appears for the review
petitioner/appellant/defendant who has absolutely no clue of what
actually transpired in the Court on 18.09.2018 but very brazenly it is
argued that the appellant/defendant did not understand what happened
on 18.09.2018 although he was personally present. The unfortunate
position is that to file the present review petition, the
appellant/defendant has most dishonestly filed a complaint against the
earlier Advocate in the Bar Council, though it is not disputed that
neither the appellant/defendant nor his present counsel ever contacted
the earlier counsel as to whether or not what was recorded in the Order
dated 18.09.2018 was or was not understood by the
appellant/defendant. In my opinion, therefore, the legal fraternity is to
be blamed simply because an Advocate gets a case and is asked to file
a review petition and the same is filed, although such review petition
is based on utter falsehood and has been filed only to resile from the
Consent Order passed on 18.09.2018.
7. In view of the aforesaid discussion, the review petition
and the stay application are wholly misconceived and an abuse of the
process of law and these applications are therefore dismissed with
costs of Rs. 25,000/-. Costs shall be paid to the respondent/plaintiff
within a period of four weeks from today.
8. Also, I may clarify that since the appellant/defendant has
not complied with the terms of the Order dated 18.09.2018 by filing
his affidavit of undertaking, and since the appeal was disposed of as
not pressed, the respondent/plaintiff is at complete liberty to execute
the impugned Judgment and Decree dated 03.12.2016 as it stands.
Dismissed.
JANUARY 16, 2019/ib VALMIKI J. MEHTA, J
