Judgment:
* + IN THE HIGH COURT OF DELHI AT NEW DELHI RSA No.246/2013 & CM Nos. 17415/2013 & CM No.17416/2013 4th April, 2014 % SH. BHAJAN LAL Through: ......Appellant Mr. Alok Sharma, Advocate. VERSUS JIVAN KISHORE ...... Respondent Through: None. CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?. VALMIKI J.
MEHTA, J (ORAL) 1. Notice could not be issued to the respondent as process fee was returned under objections. Appellant was duty bound to file process fee and get the notices issued because appellant has been successful in obtaining an interim order of stay of the impugned judgment on 1.11.2013 when notices were issued. I have therefore heard the counsel for the appellant in the appeal.
2. This second appeal is filed under Section 100 CPC , 1908 impugning the judgment of the first appellate court dated 22.8.2013. The first appellate court by the impugned judgment has dismissed the appeal of the appellant by which the appellant-defendant challenged the judgment of the trial court dated 15.2.2012 by which the trial court decreed the suit of the respondent-plaintiff for possession and mesne profits as 1000/- per month from 11.9.2000 with respect to the property bearing no.A-437/2 Shastri Nagar, Delhi-52.
3. The case of the respondent-plaintiff was that he had purchased the suit property from the mother of the parties by means of registered documents being the agreement-to-sell, power of attorney, Will etc, and which was proved and exhibited before the trial court as Ex.PW1/3 to Ex.PW1/9. These documents are dated 12.1.1998. Appellant-defendant contested the suit by filing the written statement. After completion of pleadings, issues were framed and thereafter evidence was led. Plaintiff proved his claim of ownership of the suit property and that the defendant was only a licencee, and which aspect has been dealt with by the trial court in paras 12 to 16 of its judgment dated 15.2.2012 and which read as under:
“12. In order to discharge the onus of this issue the Plaintiff has produced before the Court the sale deed in favour of the mother of the Plaintiff and the Will, General Power of Attorney, Special Power of Attorney, Agreement to Sell, Indemnity Bond, Affidavit and Cash receipt executed by the mother in favour of the Plaintiff. Though there is discrepancy in the dates in General Power of Attorney, Special Power of Attorney, Agreement to sell, indemnity Bond, Affidavit and Cash receipt executed by the mother in favour of the Plaintiff. Though there is discrepancy in the dates in General Power of attorney as General Power of attorney is dated 12.01.1997 and the witness is dating the same as 12.01.1996 and the same is registered bearing date 12.01.1998, however, even the special power of attorney is showing that the witness has given the date as 12.01.1996 and the same is the case with the Will. Thus, the perusal of these documents shows that where so ever PW-2 has signed he has written the date as of 1996, however, the very same witness has deposed before the court that the documents were executed in his presence in the year 1998. These documents are also registered in the year 1998 and there is an official witness in order to support the validity of these documents. In view of the same the said human error is over looked and it is construed that the documents were executed on 12.01.1998 only. It is argued by the Ld. Counsel for the Defendant the General Power of Attorney. Special Power of Attorney. Agreement to sell, Affidavit, Indemnity bond, cash receipts, Will does not confer any right, title or interest over the suit property in favour of any person as agreement to sell only gives the right to one party to get the sale deed executed in his favour and there is no sale deed on record with respect to the western side portion of the property However, in the present case it is an admitted position of both the parties that executants of documents Ex. PW1/3 to PW1/9 Smt. Ram Ratti has died on 05.06.1998 as in the cross examination there is no suggestion to that fact that mother is alive or that she did not died on 05.06.1998. Thus, the mother has died and there is a registered Will before the Court which is Ex. PW1/5 whose witness has deposed before the Court identifying his signatures and has also deposed that the executants has affixed the thumb impression and executed the document in his presence. The Will is further registered and there is an official witness also deposing vis-àvis its credibility and therefore the Will Ex. PW1/5 is proved. The Will coupled with sale deed Ex. PW1/1 confers ownership rights with respect to the western side portion of property bearing No.A-437/2, Shastri Nagar, Delhi, in favour of the Plaintiff.
13. Further more it is admitted by the Defendant as well that there is no legal proceeding filed/initiated by him against the Plaintiff with respect to the cancellation of these documents or for declaring that these documents are null and void. Balance of probabilities shifts in favour of the plaintiff and the Will Ex. PW1/5 is proved on record coupled with sale deed Ex. PW1/1 and therefore the plaintiff has proved himself to be owner of 55 sq. yards in the western portion of the plot bearing No.A-437/2, Shastri Nagar, Delhi.
14. The Defendant has stated that even he has contributed financially in the purchase of the property by the mother and therefore the property was purchased benami in the name of the mother. Benami transactions are prohibited by the law of land and further more the Defendant has not produced any evidence on record to show that he has also contributed towards the purchase of the property bearing No.A-437/2, Shastri Nagar, Delhi. In view of the same it is held that the plaintiff is the owner of the 55 sq. yards of land in western portion of property.
15. It is the case of the plaintiff that Defendant was the licensee in respect of the suit property. The Plaintiff has shown himself to be the owner of the suit property and it is the case of the Defendant also that he was in possession of the suit property in his capacity as the son of Smt. Ram Ratti and by virtue of the fact that he has contributed towards the purchase of the whole property. The Defendant has failed to prove his averment before the Court that he has contributed towards the purchase of the property and further more the balance shifts in favour of the plaintiff as there is a registered sale deed in favour of his predecessor in interest. Thus, as the occupation of the Defendant over the property was permissive in nature though no license fees was paid by the Defendant to the mother at any point of time yet the possession of the Defendant over the property was permissive and could have been revoked by the mother or the plaintiff at any point without giving any reasons whatsoever. The plaintiff has further relied upon Ex. PW1/10 which is the legal notice dated 18.02.2000 as per which it is the case of the plaintiff that it has revoked the license of the Defendant as has asked him to deliver and hand over the vacant and peaceful possession of the room in question immediately. The Defendant in his deposition has denied that he has ever received the legal notices, however, in his written statement it is the case of the Defendant that as he was under the attack of Schizophrenia the plaintiff took his signatures fraudulently over the acknowledgement card. In the present case in hand no acknowledgment card has been proved on record by the plaintiff or produced by the Plaintiff on record, however, the Defendant has also not shown any documents before the Court in order to show that he was suffering from Schizophrenia at the relevant point of time. PW-2 the witness of the Plaintiff has in his deposition though admitted that Defendant has been suffering from fits of lunancy, however, the same also does not show that at the relevant point of time when the notice was received, as per the own pleadings of the Defendant, he was under the attack of Schizophrenia. There is no acknowledgment card on record, however, there is a UPC receipt and postal receipt of the sending of the notice. Though one cannot say with certainty as to when the defendant has received the legal notice; however, the Defendant has admitted the receipt of the notice in the pleadings. Even if one considers the submission of the Defendant that he was under the attack of Schizophrenia at the relevant point of time as the Court can take notice of the subsequent facts the Defendant would be deemed to have the notice/knowledge of the legal notice given by the Plaintiff from the date when the summons of the suit were served upon the Defendant, that is, by11.9.2000 when memo of appearance was filed on behalf of the Defendant in the Court. In view of the same as the Defendant was in permissive possession of the suit property and thus his capacity in the property was no more than a licensee and he could have been asked to vacate the suit property at any point of time the Plaintiff is entitled to the decree of possession against the Defendant as prayed for.
16. RSA2462013 Thus, this issue is decided in favour of the Plaintiff and against the Defendant.”
(underlining added) Page 5 of 9 Accordingly, the suit of the respondent-plaintiff was decreed for possession and mesne profits against the appellant/defendant.
4. Before me, counsel for the appellant contended that the appellant/defendant was of unsound mind and therefore, the decree passed against him is void by virtue of Order 32 CPC. Reliance is placed upon preliminary objection para-1 of the written statement and its response in the replication to argue that appellant/defendant is admittedly of an unsound mind and therefore, the decree passed by the trial court is void.
5. In order to appreciate the contention of the appellant, preliminary objection para-1 of the written statement and its response in the replication are reproduced herein. Preliminary Objection para-1 of Written Statement.
1. RSA2462013 That the suit filed by the plaintiff is liable to be dismissed as the plaintiff has not approached this hon’ble court with clean hands and has suppressed the material facts from this hon’ble court. As a matter of fact, the plaintiff with ulterior motives and malafide intention has intionally and deliberately concealed the material facts that the defendant is a acute patient of Schizophernia and is under the constant treatment of the Institute of Human Behaviour and Allied Sciences at Dilshad Garden, Delhi95. The defendant is under the treatment since the year 1976 and the plaintiff has taken advantage of the same and has forced his mother Smt. (late Ram Ratti, to Page 6 of 9 execute certain documents under pressure and coercion regarding the western portion of premises in dispute.”
Response to preliminary objection para 1 of the written statement.
“1. That para no.1 of the preliminary objections of written statement filed by the defendant is absolutely wrong hence specifically and categorically denied. It is specifically denied that the plaintiff has not come with clean hands before this hon’ble court. It is also specifically denied that the plaintiff has taken the advantage of the illness of the defendant has forced his mother to execute the certain documents under pressure and coercion. It is submitted that the defendant has absolute knowledge of the transaction dated 12.01.98.”
6. In my opinion, the aforesaid do not show any admission by the respondent-plaintiff that the appellant was of unsound mind. In fact, the trial court has dealt with this aspect in para 21 of the impugned judgment by observing that defendant has not filed any documents to prove that he was of a mentally unsound mind. The first appellate court in this regard has given the following valid observations for rejecting this argument in dismissing the appeal.
“6. RSA2462013 The first ground pleaded in the present appeal is that the judgment and decree passed by the trial court is liable to be set aside having been passed against a person of unsound mind who is incapable of protecting his own interest. It is also submitted that provisions of order 32 CPC have not been complied with during the proceedings of the suit. It is further pleaded that there is specific admission by the respondent Page 7 of 9 regarding the mental condition of the appellant. On giving due consideration to the record of the case, I am of the opinion that this contention/ground has no substance or force. The defendant in his written statement pleaded that he is suffering from schizophrenia since 1976 and is under treatment of Institute of Human Behaviour & Allied Sciences (IHBAS). At no point of time, the defendant moved application u/o 32 CPC for appointment of guardian to defend himself. Moreover, it is for the defendant to establish in evidence that he has been a patient of schizophrenia and has been rendered to be a person of unsound mind and incapable to understand the nature of the proceedings. During evidence in the suit, no suggestion has been given to the plaintiff/PW-1 that defendant has been suffering from schizophrenia or that the suit has not been properly filed by him directly against the defendant. During cross-examination of PW-2 Jai Bhagwan, the question with respect to lunacy of the defendant was put to which the witness has stated that previously the defendant had not been suffering from fits of lunacy but for the last some time, it happens. The statement of witness was recorded on 25.11.2004 and no specific suggestion was given that the defendant has been suffering from mental illness since 1976. Also, no question was put to the witness as to since when and upto what extent the defendant has been suffering from lunacy fits so as to conclude that defendant has been a person of unsound mind. It is clear that defendant has not put the plea of unsound mind specifically to the plaintiff and his witness. Moreover, in his own affidavit, the defendant has pleaded mental illness but no specification of illness has been given nor any document is produced in evidence with respect to the same. So much so that defendant himself appeared and filed his affidavit in evidence and submitted himself for cross-examination, meaning thereby, the defendant understood the nature of proceedings and was fit to depose. There is no admission anywhere on behalf of plaintiff/respondent regarding mental condition of defendant/appellant. In the present appeal, appellant claimed mental illness since 1982 as contrary to his earlier plea of illness since 1976. The ground taken by the appellant is without any merit or substance.”
(emphasis added) 7. It is clear that the appellant/defendant who contested the entire case from beginning to end and suffered a decree against him now wants to avoid the consequences of the decree for possession and mesne profits on a totally fanciful ground and which has not been established before the courts below.
8. In view of the above, no substantial question of law arises, and therefore this appeal is dismissed, leaving the parties to bear their own costs. APRIL04 2014 ib RSA2462013