Suresh Kumar Jain v. Mohan Lal & Anr

VEENA BIRBAL, J MARCH 05, 2012 ssb

* HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: March 5, 2012 + RSA 31/2012 Suresh Kumar Jain ..... Appellant Through: Mr.Abhinav Vasisht, Sr.Advocate with Mr. Naveen Kumar Chaudhary with Mr.Rajesh Kumar Verma, Advocates -versus- Mohan Lal & Anr ..... Respondents Through: None CORAM:- HON'BLE MS. JUSTICE VEENA BIRBAL Veena Birbal, J. 1. By way of this appeal under Section 100 and Order XLII of the CPC, appellant has challenged the two concurrent judgments i.e., one dated 13th July, 2005 passed in Ex.No.02/03 by the learned Civil Judge and the other dated 26th November, 2011 passed in MCA No.09/2010 by the learned Addl. District Judge, Delhi. 2. The facts of the case are as under:- Late Shri Ram Prakash, father of respondent no.1 had filed a suit bearing no.467/87 for possession and damages against M/s Moti Ram Jain & sons before the ld. Civil Judge. The said suit was decreed in favour of plaintiff therein i.e., late Shri Ram Prakash, father of respondent no.1 vide judgment and decree dated 4th July, 1988. By the said decree, possession of suit property i.e., plot no.37, measuring 656 sq. yds situated at East Azad Nagar, Delhi-51 was awarded in favour of late Shri Ram Prakash. The decree holder filed execution petition and got possession of 444 sq. yds on 04.11.1992. Thereafter, he got possession of 167 sq. yds and remaining 45 sq. yds. portion was yet to be recovered. The said Shri Ram Prakash during the execution proceedings expired and Shri Mohan Lal i.e., respondent no.1 herein was substituted in his place. When the proceedings for execution of remaining portion of suit property were pending, appellant and respondent no.2 herein, who are the sons of Judgment Debtor i.e., Moti Ram Jain had filed objections wherein they contended that they are the owners of property bearing no.B-37/2A, East Azad Nagar, Shahdara admeasuring 200 sq. yds. As per their stand, respondent no.2 had purchased the same from one Budh Ram vide General Power of Attorney, Agreement to Sell, Will and affidavit on 12.7.1977. Thereafter, in the year 1991, respondent no.2 had sold 100 sq. yds to his brother i.e., appellant vide General Power of Attorney, Agreement to Sell, Will, affidavit and receipt all dated 25.2.1991. It is alleged that electricity and water connections were also in the name of appellant. According to them, property no.B 37/2A, East Azad Nagar, Delhi was not the suit property and was not part of the premises let out to the J.D by D.H. It was prayed that they have been illegally dispossessed from the suit property and ownership of the said property be ascertained after due enquiry and their objections be treated as a suit and an opportunity be given to them to lead evidence. Their objections were dismissed vide impugned order dated 13th July, 2005. In appeal, the learned ADJ vide impugned judgment dated 26.11.2011 has also upheld the findings of the learned Civil Judge. 3. The stand of appellant is that he along with respondent no.2 are the owners of B-37/2A, East Azad Nagar, Delhi measuring 200 sq. yds. They have relied upon certain documents which are mentioned in the preceding paras to substantiate their stand. The findings of the learned Civil Judge in this regard is as under:- "Ld. counsel for the Objectors has taken me through the documents of so called title of the objectors. It is noteworthy that these are only G.P.A, agreement to sell, affidavit & receipt etc. There is no sale deed. Perusal of these documents would reveal that one Sh.Budh Ram s/o Sh.Heera La has been shown as owner of 200 sq. yds portion in Khasra no.267, Village Gondli, East Azad Nagar Shadara, delhi. The said Sh.Budh Ram vide G.P.A dated 12.7.1977 appointed Objector no.2 as his attorney. It is pertinent to note that this is the initial document of so called title of objectors. The objectors have not filed any document of title of the said Sh.Budh Ram. It is not known how the said Sh.Budh Ram was the owner of the disputed property. Merely a recital is