Ram Bhateri Sharma & Anr vs M/S Mahabir Steel & Ors
2020 Latest Caselaw 1757 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      RSA 203/2016 & CM No.27753/2016 (for stay)
       RAM BHATERI SHARMA & ANR                   ..... Appellants
                    Through: Dr. Naipal Singh, Adv.
                                   Versus
       MAHABIR STEEL ROLLING MILLS & ORS ..... Respondents
                    Through: Mr. Pravir K. Jain, Adv.
       CORAM:
       HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                    ORDER

% 03.05.2020

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 9th May, 2016 of the Additional District Judge (ADJ)-02 (NE), Karkardooma Courts, Delhi in RCA No.29/2015 (Case ID No.02402C0025602015)] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellants / defendants against the judgment and decree [dated 29th June, 2015 of the Court of Commercial Civil Judge (North-East), Karkardooma Courts, Delhi in Suit No.996/2006 (oldest No.87/1984)] allowing the suit filed by the respondents no.1 and 2 / plaintiffs i.e. Mahabir Steel Rolling Mills and Sh. Shri Dayal against the appellants / defendants Ram Bhateri Sharma and Kamlesh Kumari as well as against the respondent no.3 / defendant Santosh Kumari and passing a decree in favour of respondents no.1 and 2 / plaintiffs and against the appellants/defendants and respondent no.3 / defendant, directing the appellants / defendants to hand over peaceful vacant possession of property bearing Municipal No.1/3305, situated in Ram Nagar Extension, Shahdara, Delhi as shown in red colour in site plan Ex.PW1/9 as well as to

pay mesne profits, to the respondents no.1&2 / plaintiffs.

2. This Second Appeal along with an application for interim stay came up before this Court first on 3rd August, 2016 when, on the contention of the counsel for the appellants / defendants that the appellants / defendants had become owner of the property by adverse possession of the property qua which decree had been passed and the suit was barred by time, notice of the appeal was ordered to be issued and execution of the impugned judgments and decrees stayed. The counsel for the respondents no.1 and 2 / plaintiffs appeared on 19th October, 2016 and the matter was adjourned from time to time, without however framing any substantial question of law, which is the sine qua non to the admission and maintainability of a Second Appeal under section 100 of the CPC, arising in this appeal. The appeal came up before the undersigned on 30th July, 2018 when, the counsel for the appellants / defendants on being called upon to argue, dodged arguments and could only draw attention to the order dated 3rd August, 2016 recording his contention that the appellants / defendants had become owners by adverse possession and the suit was barred by time. On the contrary the counsel for the respondents no.1 and 2 / plaintiffs pointed out that the appellants / defendants on the one hand were claiming to have become owners by adverse possession and on the other hand claiming lawful title to the property. Observing, that the said two claims are antithetical to each other and cannot co-exist, the counsel for the appellants / defendants was asked to make a choice, whether he wanted to argue the appeal on the plea of adverse possession or on the plea of lawful title. The counsel for the appellants / defendants again sought adjournment. In the circumstances, the ex parte ad-

interim order dated 3rd August, 2016 granting stay of execution was vacated and the appeal adjourned by way of last opportunity, to 5th December, 2018 for arguments.

3. The appellants / defendants, by engaging a new advocate, filed CM No.37934/2018 for leave to urge new and additional substantial questions of law and grounds of appeal. The said application came up before the undersigned on 17th September, 2018, when the counsel for the respondents / plaintiffs also appeared on seeing the matter in the cause list and stated that he had not been served. The hearing was as such adjourned to 15th October, 2018, requesting the counsel for the respondents / plaintiffs to, in execution permitted of the impugned judgment and decree, obtain warrants of possession for a date after the next date of hearing in the appeal. On 15th October, 2018 however, the new counsel for the appellants / defendants also was found to be not able to argue, neither the application for urging additional substantial questions of law and additional grounds of appeal nor the appeal, as had been directed. The counsel for the respondents no.1 and 2 / plaintiffs informed that (i) the respondents no.1 and 2 / plaintiffs had instituted the suit from which this appeal arose, initially against the respondent no.3 / defendant only but on the respondent no.3 / defendant taking a stand that she had sold the property, for recovery of possession and mesne profits with respect whereto the suit had been filed, to the two appellants and another, the two appellants and another were impleaded as a party and of which the two appellants only contested the suit claiming to have lawful title thereto by purchase from respondent no.3 / defendant; (ii) however no document of such sale by the respondent no.3 / defendant to the

two appellants / defendants has been filed or proved; (iii) the only question in this appeal is whether the appellants / defendants have become owners by adverse possession; (iv) however since appellants / defendants claimed sale by respondent no.3 / defendant in their favour in the year 1980 and the suit from which this appeal arises was filed in the year 1984, the appellants / defendants, prior to the institution of the suit, had not been in possession for twelve years; (v) as per the dicta in Gurbinder Singh Vs. Lal Singh AIR 1965 SC 1553, the adverse possession even if any of respondent no.3 / defendant cannot be tacked to the period of possession of the appellants / defendants, so as to constitute adverse possession of the appellants / defendants for the required period; (vi) moreover the respondent no.3 / defendant had not even opted to appeal; and, (vii) according to the evidence led by the respondents no.1 and 2 / plaintiffs, the respondent no.3 / defendant was in possession since 1974-75 only and the suit filed in the year 1984 was not barred by time.

4. Per contra, the counsel for the appellants / defendants though did not argue anything, stated that written arguments were on record and handed over copies of judgments in (i) Union of India Vs. Ramesh Gandhi (2012) 1 SCC 476 holding that a judgment and decree obtained by playing fraud on the Court is a nullity; (ii) S.P. Chengalvaraya Naidu Vs. Jagannath JT 1993 (6) SC 331 holding that a person whose case is based on falsehood has no right to approach the Court; and, (iii) Badami Vs. Bhali (2012) 11 SCC 574 also holding that a judgment and decree obtained by playing fraud as well as all proceedings subsequent thereto are null and void.

5. In the face of the aforesaid state of hearing on 15th October, 2018, the undersigned had no option but to send the files of this Second Appeal along with the trial court record received, to the chamber, for dictating the order / judgment after going through the records. Judgment / order thereafter remained to be dictated and is being pronounced now.

6. On going through the voluminous records, it is found that:

(i) the respondents no.1 and 2 / plaintiffs, in or about the year 1984, besides the present suit, filed twenty other suits, all for recovery of possession of different portions of land, in Khasra No.571 situated in village Siqdarpur, ilaka Shahdara, Delhi, in possession of defendant/s in each of the said suits, pleading that

(a) the respond no.1 / plaintiff was a partnership firm; (b) the respondent no.2 / plaintiff was one of the partner of the respondent no.1 / plaintiff firm; (c) the respondent no.2 / plaintiff retired from the respondent no.1 / plaintiff firm on 5th March, 1964 i.e. nearly twenty years prior to the institution of the suits; (d) the respondent no.2 / plaintiff, while he was a partner of the respondent no.1 / plaintiff firm, purchased a piece of agricultural land, out of funds of the partnership firm, falling in Khasra No.571 situated in village Siqdarpur, ilaka Shahdara, Delhi, in a public auction held on 20th January, 1960 under Section 20 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954, from the office of the Regional Settlement Commissioner and obtained possession of the same and Sale Certificate dated 16th January, 1964 was issued in his

favour; (e) the respondent no.2 / plaintiff, while retiring from the respondent no.1 / plaintiff firm vide Dissolution Deed dated 5th March, 1964, assigned all his share and interest in the partnership business, its goodwill, liabilities and assets in favour of the continuing partners; as such the respondent no.1 / plaintiff firm continued to remain the owner of agricultural land in Khasra No.571 aforesaid; (f) the said land was lying vacant;

(g) the respondent no.1 / plaintiff firm, in or about the year 1974 found the defendant/s in different suits to have taken wrongful possession of different portions of the said land and to have built houses thereon and which houses had been given municipal numbers; (h) the appellants / defendants and the respondent no.3 / defendant in the suit from which this appeal arises, as well as the defendant/s in each of the twenty other suits were in unauthorized occupation and liable to be removed and to pay mesne profits to the respondents no.1 and 2 / plaintiffs.

(ii) the appellants / defendants and the respondent no.3 / defendant, in the suit from which this appeal arises, as well as the defendant/s in each of the twenty other suits, contested the suits by filing a written statement taking same / similar pleas and though separate issues were framed in each of the twenty other suits but the twenty other suits were consolidated for the purposes of trial vide order dated 29th March, 1986.

(iii) the twenty other suits which were consolidated, were dismissed vide judgment dated 26th February, 2005 of the Court of Ms. Anju Bajaj Chandna, Civil Judge, Delhi, reasoning that (a) the respondent no.1 / plaintiff had failed to prove that it was the owner of Khasra No.571; as per the Sale Certificate of the land, the land was sold to the respondent no.2 / plaintiff on 20th January, 1960; the original Partnership Deed between the respondent no.2 / plaintiff and the other partners of the respondent no.1 / plaintiff was of January, 1963, meaning that the respondent no.1/ plaintiff firm came into existence in January, 1963 i.e. after three years of purchase of land by respondent no.2 / plaintiff in January, 1960; thus the respondent no.2 / plaintiff could not have purchased the land out of partnership funds; no material had been placed on record to show that the ownership of land was ever transferred by respondent no.2 / plaintiff in favour of respondent no.1 / plaintiff; the suit on behalf of respondent no.2 / plaintiff had been filed by a General Attorney but the General Power of Attorney dated 25th April, 1982 in whose favour also did not confer any right, title or interest with respect to the said land; the said Power of Attorney in any case was of no avail after the death of respondent no.2 / plaintiff; (b) though the issue of limitation was not of significance since all the defendants had claimed the properties in their respective possession to be situated in Khasra No.610 and not in Khasra No.571 as claimed by the respondents no.1 and 2 / plaintiffs but on the evidence on

record it stood established that the suits had been filed after twelve years of the alleged documents of the property in favour of each of the defendants; (c) the suit had not been filed and the plaint not signed and verified by a duly authorized person on behalf of respondent no.2 / plaintiff; (d) the respondents no.1 and 2 / plaintiffs had failed to prove that the property in possession of defendant/s in each of the suits was situated in Khasra No.571; though the respondents no.1 and 2 / plaintiffs had proved a demarcation report Ex.PW4/1 but the testimony of PW4 showed that the said report had been prepared on the basis of casual information and was not supported by any revenue records and was without serving any notice on the persons who were in occupation of the land; on the contrary the appellants / defendants had proved notices received by them in the year 1975 from the Rehabilitation Department and as per which notices the properties occupied by them were in Khasra No.610; (e) the defendant/s had been able to prove their possession since 1968; and, (f) since the defendant/s claim the property in their possession to be Khasra No.610, the question of their acquiring ownership of Khasra No.571 by adverse possession did not arise.

(iv) the suit from which this Second Appeal arises, though filed at about the same time as twenty other suits aforesaid which were dismissed vide judgment dated 26th February, 2005 and though is found to have been taken up, at least for evidence of the

respondents no.1 and 2 / plaintiffs along with the twenty other suits aforesaid, was separated from the twenty other suits and the learned Civil Judge before whom the suit from which this appeal raises was pending, without adverting to the judgment dated 26th February, 2005 in the twenty other suits, allowed the present suit, reasoning that (a) the appellants / defendants had not challenged the ownership of the custodian department; the land was sold to respondent no.2 / plaintiff by the custodian department; (b) the question whether the property was purchased by the respondent no.2 / plaintiff for and on behalf of respondent no.1 / plaintiff firm was not relevant in view of Section 14 of the Partnership Act, 1932 along with Section 5 of the Transfer of Property Act, 1882, the effect whereof is that for transfer of a personal property by a partner in favour of a firm, no document is required; and, (c) the appellants / defendants were even otherwise not competent to challenge the same when the respondent no.2 / plaintiff in whose favour the Sale Certificate stood, was admitting the property to be of the respondent no.1 / plaintiff firm; (d) the appellants / defendants could not claim to be in adverse possession since, by the time of institution of the suit, had not completed twelve years of occupation and could not take advantage of the period of occupation of the respondent no.3 / defendant; even otherwise since the appellants / defendants were claiming to have acquired lawful title from the respondent no.3 / defendant, they were not entitled to set up the plea of adverse possession; (e)

the respondents no.1 and 2 / plaintiffs had proved the demarcation report Ex.PW5/1 and as per which the property in possession of the appellants / defendants and the respondent no.3 / defendant was situated in Khasra No.571; and, (f) the respondents no.1 and 2 / plaintiffs were thus entitled to a decree for possession and mesne profits.

(v) the First Appeal preferred by the appellants / defendants and respondent no.3 / defendant against the decree for possession and mesne profits against them was dismissed, again without adverting to the judgments in the twenty other suits or further proceedings if any therein, and affirming the findings of the Suit Court.

(vi) against the judgment and decree dated 26th February, 2005 of the Court of Ms. Anju Bajaj Chanda, of dismissal of the twenty suits consolidated together, the respondents no.1 and 2 / plaintiffs herein had preferred First Appeal under Section 96 of the CPC and which appeal has also been dismissed vide judgment dated 5th July, 2018 of the Court of Additional District Judge-03, Patiala House Courts, New Delhi in RCA No.61026/2016.

7. It thus transpires on going through the records, that the question impugned in this Second Appeal is not only qua the plea of adverse possession as was represented during the hearings on 30th July, 2018 and 15th October, 2018 but encompasses a much larger question, of suits filed together, on the same pleas and same facts, with respect to the same property

and entailing same issues, having different outcome. Since the order / judgment in this Second Appeal had already been sufficiently delayed, not wanting to wait till resumption of normal court working (as with effect from 24th March, 2020 the country is in a state of lockdown in the wake of Covid-

19), I on 2nd May, 2020 telephonically contacted Mr. Pravir K. Jain, Advocate for the respondents no.1 and 2 / plaintiffs.

8. The counsel for the respondents no.1 and 2 / plaintiffs has telephonically informed me that, (i) besides the suit from which this appeal arises and the twenty other suits which were consolidated, there were other suits also, in all twenty-five in number; (ii) the twenty suits which were consolidated were dismissed, primarily for the reason of failure of the respondents no.1 and 2 / plaintiffs to lead proper cogent evidence therein and wisened wherefrom the respondents no.1 and 2 / plaintiffs led proper evidence in the other suits including in the suit from which this appeal has arisen and as a result whereof the suit from which this appeal arises as well as other suits besides the twenty suits consolidated together, were decided in favour of the respondents no.1 and 2 / plaintiffs and the decree for possession in favour of respondents no.1 and 2 / plaintiffs in one of the cases at least, has been upheld till the Supreme Court; and, (iii) in the twenty suits which were decided against the respondents no.1 and 2 / plaintiffs, the respondents no.1 and 2 / plaintiffs have preferred Second Appeals to this Court being RSA Nos.164/2018, 166/2018, 168/2018, 171/2018, 172/2018, 180/2018, 181/2018, 182/2018, 183/2018, 184/2018, 185/2018, 188/2018, 189/2018, 190/2018, 193/2018, 194/2018, 195/2018 & 197/2018 and in which notices have been ordered to be issued and which are pending consideration.

9. I however (telephonically only) enquired from the counsel for the respondents no.1 and 2 / plaintiffs, how can there be diametrically opposite findings on the same questions of fact, with respect to the same property, in different suits by the same plaintiff albeit against different defendants, with one set of findings to the effect that the respondent no.1 / plaintiff is the owner of Khasra No.571; that the defendant/s is in possession of land in Khasra No.571 in ownership of the respondent no.1 / plaintiff and that the suit was within time and the other set of findings to the effect that the respondent no.1 / plaintiff was not the owner of Khasra No.571; that the defendant/s was not in possession of Khasra No.571 owned by the respondent no.1 / plaintiff and that the suit for possession filed by respondent no.1 / plaintiff was barred by limitation.

10. The counsel for the respondents no.1 and 2 / plaintiffs stated (again telephonically only) that since different evidence was led in the two sets of suits and since findings have been returned in each set of suits on the basis of the evidence led, different findings even of fact could be returned.

11. I however entertain doubt that the evidence of the respondents no.1 and 2 / plaintiffs in the suit from which this appeal arises is any different from their evidence in the twenty consolidated suits which were dismissed. The judgment dated 29th June, 2015 of the Civil Judge in this appeal records that (a) the judgment in the suit from which this appeal arises was scheduled to be announced on 5th February, 2015 when it was found that the suit from which this appeal arises was being taken up with other connected suits (apparently the twenty other suits) till 8th March, 1989; (b) thereafter vide order dated 1st May, 1989 Local Commissioner was appointed for

examination of respondent no.2 / plaintiff Sh. Shri Dayal; (c) due to some confusion, issues could not be framed in this suit; (d) vide order dated 3rd November, 1989 evidence was directed to be recorded through the Local Commissioner; (e) since though the suit had been listed for pronouncing judgment but no issues had been framed thereon, with the consent of the counsels, issues were framed in this suit on 3rd June, 2015; (f) vide statement dated 1st March, 1989 of the counsel for the respondents no.1 and 2 / plaintiffs and the counsel for the appellants and respondent no.3 / defendants, in the suit from which this appeal arises, this suit was consolidated with other connected matters and evidence of all the connected matters including the present suit was directed to be recorded in Civil Suit No.16/1986 titled as Mahabir Steel Rolling Mills and Ors. Vs. Anil Kumar and it was agreed that the defendant/s in each of the suit was free to lead evidence as per their specific case of defence; (g) vide order dated 24th October, 2000, the matter was posted for defendants' evidence; (h) vide order dated 18th February, 2001 the cases were again bifurcated for the purposes of defendants' evidence; and, (i) on the file of the present suit, certified copies of evidence of the plaintiff had been placed.

12. From the said observations, it appears that the evidence of the respondents no.1 and 2 / plaintiffs in the suit from which this appeal arises is the same as in the twenty consolidated suits which were dismissed on the basis of the same evidence and First Appeal against which judgment and decree of dismissal has also been upheld. However in the absence of the counsels, I refrain from giving any final finding in this regard.

13. I also entertain doubt as to the correctness of the contention of the counsel for the respondents no.1 and 2 / plaintiffs that (even if) because separate evidence has been led by the respondents no.1 and 2 / plaintiffs in the suit from which this appeal arises, than the evidence led by them in the twenty consolidated suits, law permits different outcome in suits for recovery of possession of immovable property by the same plaintiff with respect to the same property against different defendants and entailing same vital issues viz. of proof of title of the respondents no.1 and 2 / plaintiffs, identity of the property and limitation. I am of the prima facie opinion that to allow defendant in one suit to be ejected by holding the plaintiff to be the owner of the said property and to have brought the suit within the prescribed time, while dismissing the suit against the defendant in another suit by holding the plaintiff to have not proved his ownership of the property in possession of the defendant and holding the suit to be barred by limitation, will make a mockery of the legal process and shake the faith of the consumers of justice in the justice delivery system. Moreover here it appears, as aforesaid, that the evidence led by the respondents no.1 and 2 / plaintiffs in the suit from which this appeal arises is the same as the evidence led in the twenty consolidated suits.

14. Though the counsel for the respondents no.1 and 2 / plaintiffs has suggested (on telephone only) that this appeal be posted for consideration after resumption of normal working of the Court but since I am no longer holding the roster dealing with Regular Second Appeals, the same is not feasible. I am also of the opinion that this appeal should be heard along with other Regular Second Appeals listed in paragraph 8 above, informed by the

counsel for the respondents no.1 and 2 / plaintiffs to be arising from the judgment and decree of dismissal of First Appeal preferred by the respondents no.1 and 2 / plaintiffs against the decree of dismissal of the twenty consolidated suits aforesaid and which Regular Second Appeals are also informed to be pending consideration.

15. Before parting, I take this opportunity to notice a disturbing feature of the manner in which the suits filed by the respondents no.1 and 2 / plaintiffs have been dealt with and to appeal to the members of the Bar, to before each and every hearing, be well versed with their brief, to be in a position to place the facts succinctly before the Court. It is found strange that the learned Civil Judge, while on 29th June, 2015 deciding the suit from which this appeal arises, did not refer to the judgment dated 26th February, 2005 of the Coordinate Court in the other twenty consolidated suits and did not deem it apposite to give reasons why outcome different from that of the Coordinate Court in the twenty consolidated suits was being returned. From a reading of the judgment dated 29th June, 2015 of the Civil Judge, it cannot be said that the Court was oblivious of the other suits. Even if the counsels had failed to place the earlier judgment of the Coordinate Court before the Civil Judge, it was incumbent upon the Civil Judge to enquire of the fate of the other suits, once had become aware of the same. It is also inexplicable why the learned ADJ in the judgment dated 9th May, 2016 impugned in this appeal, also did not refer to and discuss with reference to the judgment dated 26th February, 2005 of dismissal of twenty consolidated suits. The learned ADJ, from the record before the Court, ought to have become aware of the other similar suits and even if the counsels had failed, ought to have

enquired the fate thereof. Had the learned ADJ done so, would have become aware of the appeals pending in Coordinate Court against the judgment dated 26th February, 2005. Ideally all the appeals should have been dealt with and decided together. It is again inexplicable why the learned ADJ, in the judgment dated 12th July, 2018 of dismissal of First Appeal against the judgment of dismissal of the twenty consolidated suits, did not refer to the earlier judgment dated 9th May, 2016 (impugned in this appeal), again of a Coordinate Court. The counsel for the appellants / defendants, before this Court also failed to point out the history of the litigation as recorded above on going through the records. Such conduct of the counsel has resulted in multiplicity of proceedings and scarce time resource of different Courts being wasted to adjudicate same disputed facts. Had the counsels, during the hearings on 30th July, 2018 and 15th October, 2018 informed the correct position as has emerged, the matter could then only have been put on the right track. The Courts can expeditiously deliver justice only with the aid of efficient representation by the counsels; if the Judges manning the Court are to, at each and every step of the litigation peruse voluminous records themselves, they can handle a limited number of cases each day. It is only on the faith and trust of the statements made across the bar by the counsels that the Court can avoid scanning minutely each and every word and guide the litigation in the right direction. The counsels are called Officers of the Court, for this reason only.

16. List this appeal along with RSA Nos.164/2018, 166/2018, 168/2018, 171/2018, 172/2018, 180/2018, 181/2018, 182/2018, 183/2018, 184/2018, 185/2018, 188/2018, 189/2018, 190/2018, 193/2018, 194/2018, 195/2018 & 197/2018 before the Roster Bench, as and when the same are listed next.

RAJIV SAHAI ENDLAW, J MAY 03, 2020 'gsr'..