Full Text
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
Between: - SH. BHOORA MOHAMMAD S/o SH. MOHMMAD HASSAN
R/o H. NO. 0-9, SUNDER NAGRI, DELHI .....APPELLANT
(Through: None. )
MS. KHAKASHA BANO W/o SH. JAMALUDDIN .....RESPONDENT NO.1
SH. JAMALUDDIN S/o SH. MOHD. HASSAN, BOTH R/o 348, N. BLOCK, SUNDER NAGARI, DELHI
PRESENTLY AT R/O H. NO. 0-9 SUNDER NAGARI, DELHI .....RESPONDENT NO.2
SH. RAKHAN JAMAL, S/o NOT KNOWN R/o 348, N. BLOCK, SUNDER NAGARI, DELHI .....RESPONDENT NO.3
KUMAR KAURAV
- 2 - (Through: Mr.Surender Kumar Gupta, Ms.Muskan Gupta and
Ms.Mokshita Sharma, Advocates for R-1 & 2.)
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JUDGMENT
Additional District Judge-01, Shahdara District, Karkardooma Courts, Delhi, affirming the judgment and decree dated 30.11.2016, passed in
Civil Suit No.8985/2016, by the Court of Senior Civil Judge, East
District, Karkardooma Courts, dismissing the suit of the appellant/plaintiff for possession and permanent injunction.
2. The facts of the case would manifest that the appellant/plaintiff filed a civil suit for declaration and possession against the respondents/defendants for the property bearing No. O-9, Sunder Nagri, Delhi (hereinafter “Suit Property”)
3. The genealogy of the family demonstrates that the appellant/plaintiff is the real brother of defendant No. 2/respondent No.2, whereas, respondent No.1/defendant No.1 is the wife of respondent No.2/defendant No.2 who, in turn, is the daughter of the respondent No.3/defendant No.3.
4. The appellant/plaintiff claimed to be the absolute owner and in possession of the suit property by virtue of GPA, Agreement for Sale, an Affidavit and Receipt allegedly executed by one Mr. Abu Bakr. It is the case of the appellant/plaintiff that he is an illiterate person who - 3 had taken a loan of Rs.10,000/- from respondent No.3/defendant No.3 in October, 1999 and for securing the same, he and his sister namely, Smt. Noor Jahan, had affixed their signatures and thumb impressions on a blank paper and stamp papers.
5. He states that he had good relations with respondent No.3/defendant No.3 before solemnization of marriage between respondent Nos. 1 and 2/defendant Nos.[1] and 2, on 27.03.2003. After the marriage of respondent Nos./defendant Nos.[1] and 2, the appellant/plaintiff claimed to have returned the loan amount, however, the blank papers containing the signatures and thumb impressions were not returned to him despite repeated requests on the excuse of losing of those papers in the house of respondent No.3/defendant No.3, who assured the plaintiff/appellant of returning the same as and when he finds them.
6. The appellant/plaintiff received a notice from CAW Cell, Nand Nagri, on the complaint made by respondent No.1/defendant No.1 before the CAW Cell, wherein, respondent No.1/defendant No.1 had produced the documents including photocopies of GPA dated 05.10.1999 and Agreement to Sell, Receipt and deed of Will dated 04.10.1999, allegedly executed by the appellant/plaintiff in favour of defendant No.2/respondent No.2, with respect to half portion i.e. 12½ sq. yards of the suit property.
7. The appellant/plaintiff further stated that respondent No.1/defendant No.1 claimed ownership of such portion on the basis of those documents which compelled the appellant/plaintiff to file a civil suit for a decree of declaration of the documents dated 05.10.1999 and 04.10.1999 as null and void, along with a decree of possession in favour of appellant/plaintiff and against respondent - 4 - Nos./defendantNos.[1] and 2.
8. The respondents/defendants contested the suit by filing their written statement, wherein, they stated that the suit was a counterblast of filing a criminal complaint by defendant No.1/respondent No.1 in CAW Cell against the appellant/plaintiff. Various other averments including allegations of malafide intention and concealment of material facts were also made.
9. The Trial Court initially framed three issues for adjudication of the dispute. However, vide order dated 30.08.2014, one additional issue was framed. The issues framed read as under:- “(i) Whether the defendant No. 3 on the pretext of reimbursement of loanmoney, took signatures and thumb impression of the plaintiff and his sister on some blank papers and forged those documents to create General Power of Attorney, Agreement to Sell, Deed and receipt
(ii) Whether the plaintiff had sold 12.[5] sq yards i.e. half portion of the suit property to defendant No. 1?
(iii) Whether the plaintiff had sold the remaining portion of the suit property to the defendant No. 2?
(iv) Whether the suit has not been valued properly for court fees and jurisdiction?
10. Issue No.4, being the additional issue pertaining to the jurisdiction was decided in favour of the appellant/plaintiff. Two issues i.e. issue nos.[1] and 2 were decided against the appellant/plaintiff and one issue concerning the sale of the remaining portion was held to be beyond pleadings and scope of the suit. The suit was, therefore, dismissed in these terms.
11. While adjudicating on Issue No. 1 as framed by the Learned Trial Court, the first Appellate Court in paragraphs Nos.12 to 19 has held as under: -
- 5 - "1. The. judgment dated 30.11.2016 passed by the Ld. Trial Court is contrary to the facts and settled law applicable to the present case.
2. The Ld Trial Court has failed to consider that as per Order 8 Rule 5 CPC the contents which are not specifically denied are deemed to be admitted and here respondents have not specifically denied relevant facts.
3. Ld. Trial Court failed to appreciate the contradictory stands taken by respondents in their evidence and it has erred in construing Section 53A and 54 of Transfer of Property Act with respect to transfer of the property on the basis of agreement to sell in light of the judgment passed by Hon'ble Supreme Court in Suraj Lamps & Industries Pvt Ltd Vs. State of Haryana & Ors.
4. Ld. Trial Court did not consider evidence of PW[2] Noor Zahan with respect to taking loan of Rs. 10,000/- by appellant from respondent in her presence.
5. Ld. Trial Court failed to consider Section 17 of Registration Act and it has also ignored the vague statement of DW[4] wherein it has been stated that "he cannot say the original thumb impression of appellant/Bhura Mohammad was taken on document or not and also stated that he cannot say the original signature of witness was taken on photocopy of said document at point A".
6. Ld. Trial Court failed in considering the fact that GPA does notcreate any title /interest of the suit property unless accompanied with proper chain of documents.
7. The documents Ex. DWl/2 to DWl/5 were executed in October 1999 wherein Khakasha Bano has been mentioned as wife of Jamaluddin, whereas marriage between the aforesaid two persons i.e. respondent no.1 & 2 were solemnized on 27.03.2003, which clearly shows that the documents are forged. However, Ld. Trial Court failed to consider this fact.
8. Ld. Trial Court in para-No. 14 of the judgment has stated that appellant has no where deposed in the entire plaint: that he has not returned the loan of Rs. 10,000/taken in October 1999 whereas this facts deems to be admitted being unchallenged.
9. The appellant has been subjected to a grave miscarriage of justice and the appellant has no other efficacious remedy to seek the redress and as such the appellant is entitled to invoke the jurisdiction of the Court: as the judgment and decree passed by the court is devoid of any merits and has not been passed with due diligence.
13. Reply to the present appeal was filed on behalf of the respondents/defendants, wherein it has been alleged that the - 6 appellant has suppressed the material facts from this court with respect to ownership right and possession of respondent No.l& 2 in suit property as appellant has sold out the suit property to the respondents No. 1 and 2. It has been further alleged that the present appeal is filed in the month of January 2017 against the order/judgment dated 30.11.2016, therefore, it is time barred by provision of law and is not maintainable. It has been further alleged that the suit of the appellant/plaintiff was also time barred and same was not maintainable as property was sold by appellant vide documents dated 09.07.1999 and 05.10.1999 in favour of respondent No. 1 and 2. However, the appellant had filed suit for declaration and possession on 27.05.2006 after about seven years. All the grounds, which were taken in appeal, have been denied by the respondents/defendants and it is prayed that the present appeal be dismissed with heavy costs.
14. I have heard the arguments of Ld. Counsels for the parties to the appeal and perused the grounds of appeal as well as material available on record. Ld. counsel for the respondents/defendants has fully supported the impugned judgment and has argued that the same does not suffer from any error or infirmity.
15. Before this Court proceeds to adjudicate the present appeal, although it may sound overly trite, but still it is important to mention that civil matters are decided on the basis of preponderance of probability.
16. This Court shall now analyze each and every ground of appeal raised by the appellant against the impugned order vis-avis the findings given by the Ld. Trial Court and shall reappreciate evidence available on record.
17. First of all, it was the contention of the respondents that the present appeal is barred by limitation as the present appeal was filed on 09.01.2017 and the judgment/order was passed by the Ld trial Court on 30.11.2016 and that there was no application of condonation of delay moved along with this appeal. The limitation period for filing an appeal to a Court other than the High Court from a decree or order is 30 days. The said limitation begins to run from the date of decree or order, which in the present case is 30.11.2016. So, the limitation should have ended on 30.12.2016 and an appeal filed on 09.01.2017 would be barred by limitation in the absence of an application for condonation of delay. However, perusal of the certified copy of the judgment/order annexed along with this appeal reveals that the certified copy was applied on 02.12.2016 and the same was ready for delivery on 16.12.2016. Thus, the appellant was entitled to exemption of the said period while computing the period of limitation for filing this appeal as per Section 12 of Limitation Act. It is important to mention that after exclusion of this period, the appeal is well within limitation. Thus, this contention on behalf of respondents is misconceived. - 7 -
18. To begin with it is important to mention that initially a judgment and order was passed by Ld. Senior Civil Judge, Sh A.S Aggarwal on 18.11.2010, whereby issue No. 1 & 2 were decided in favour of respondent No. 1 and issue No. 3 was decided in favour of appellant. Thereafter, appellant preferred an appeal in which Ld.
ADJ KKD Courts vide order dated 30.08.2014 set aside the judgment dated 18.11.2010 and remanded the matter to the Ld trial Court after framing an additional issue which reads as under: - Whether suit has not been valued properly for Court fees and jurisdiction? OPD
19. After concluding evidence of respondents and arguments on behalf of both parties, judgment and order was passed on 30.11.2016, which is the impugned order, and the present appeal is pending adjudication from the said order."
12. On an appeal preferred by the appellant, the first Appellate Court in the impugned judgment dated 31.08.2019, after considering the submissions, held that there was no evidence to establish that the registered GPA was forged and fabricated. In paragraph No.25, it has been noted that there are significant contradictions in the versions of the appellant/plaintiff and Noor Jahan- PW[2] (sister of the appellant/plaintiff). The appellant/plaintiff was not able to prove that a loan was taken by him and further the testimony of PW[2] was found to be unreliable and was, therefore, discarded on the ground of the inconsistencies that emerged in their examinations.
13. In paragraph No.29, the first Appellate Court further held that a person may not have complete ownership rights strictly unless there is a duly registered sale deed, however, certain rights can exist in an immovable property in accordance with the provisions of Section 53- A of the TPA and Section 202 of the Indian Contract Act, 1872. However, the first Appellate Court rightly noted that the title claimed by the appellant/plaintiff was also based on the same set of documents as the respondent and thus, the appellant could not be permitted to take contradictory stand with respect to the legal force of such documents. - 8 -
14. In paragraph No.30, the first Appellate Court has made the following pertinent observations:-
15. On a consideration of an analysis carried out by the Trial Court and the first Appellate Court, it would appear that the appellant’s claim to declaration and possession was essentially based on four counts – firstly, existence of certain documents (GPA, agreement for sale, affidavit, receipt etc.) purportedly executed by Abu Bakr in favour of the appellant/plaintiff, secondly, grant of loan by respondent/defendant no. 3 to the appellant/plaintiff, thirdly, signatures of the appellant/plaintiff and his sister PW-2 on certain blank documents and fourthly, preparation of fabricated GPA by respondent no.1 in her favour. The impugned judgment reveals that the first Appellate Court indulged in a careful examination of the evidence on record and arrived at a finding that the appellant/defendant could not discharge the burden of proof. The appellant/plaintiff could not prove the foundational facts necessary for discharging the burden, such as the grant of loan by respondent/defendant no. 3, execution of blank documents and - 9 fabrication of false documents by respondent/defendant no. 1, and the first Appellate Court has carefully examined these aspects in the factual backdrop of the case. In the present appeal, the appellant/plaintiff has failed to point out any shortcomings on the part of the Courts below in adjudicating the case at hand based on examination of facts and material placed on record and in light of the settled position of law. The appellant/plaintiff has sought to challenge the impugned judgment without demonstrating any error of law and no shortcomings are evident in the order.
16. Section 100 of the Code of Civil Procedure, 1908 empowers the Courts to entertain a second appeal only if a substantial question of law arises from the facts of the case at hand. It is trite law that the indulgence in a second appeal could not be sought on purely factual grounds. Moreover, the substantial question of law must be formulated for the consideration of the Court.
17. The Supreme Court in the case of Bhagyashree Anant Gaonkar vs. Narendra@ Nagesh sharmaHolkar and Anr[1] has extensively dealt with the provision of Section 100 of the Code of Civil Procedure, 1908 and has discussed the common errors that the High Courts commit in allowing the admission of second appeals without there being a substantial question of law to adjudicate upon and where the High Courts have delved into deciding the question of facts and other general issues arising from the appeals before them. The Court has highlighted the importance of the jurisdiction of the High Courts in entertaining second appeals and held that the same has to be invoked cautiously.
18. In the present case, the appellant/plaintiff effectively seeks a re-
- 10 examination of the factual questions in the second appeal and no substantial question of law arises for the consideration of this Court. In view of the aforesaid, the Court does not find any substantial question of law that arises from the scrutiny of the instant appeal and accordingly, the appeal stands dismissed along with the pending application(s). No costs.
JUDGE DECEMBER 09, 2024/MJ/dp