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2010 DIGILAW 651 (PNJ)

Ramesh Verma v. Madan Gopal Verma

2010-01-27

L.N.MITTAL

body2010
Judgment L.N.Mittal, J. 1. For the reasons mentioned in the application which is accompanied by affidavit, delay of 3 days in filing the appeal is condoned. RSA No.2409 of 2009 2. This is second appeal by plaintiff Ramesh Verma who has remained unsuccessful in both the courts below. 3. Plaintiff alleged that he is owner in possession of the disputed shop having purchased it vide registered sale deed dated 14.11.1991. However, the defendant fraudulently obtained judgment and decree dated 11.3.1996 in civil suit no.82 of 1996 passed by Civil Judge (Junior Division), Camp Court at Pehowa, on the basis of alleged family settlement which never took place between the parties. On the basis of said judgment and decree, the defendant who has no right, title or interest over the suit property came to the disputed shop with some strangers armed with deadly weapons and tried to dispossess the plaintiff. The plaintiff accordingly sought declaration that judgment and decree dated 11.3.1996 passed in civil suit no.82 of 1996 are illegal, null and void etc. and not binding on the rights of the plaintiff who is owner in possession of the suit property and the defendant has no right, title or interest therein. Plaintiff also claimed permanent injunction restraining the defendant from interfering in any manner in the possession of the plaintiff over the suit property and from dispossessing him therefrom and from alienating the same. The defendant, interalia, pleaded that he is owner in possession of the suit property on the basis of family settlement which took place on 22.6.1995 between the parties and as per family settlement, the plaintiff delivered the possession of the suit property to the defendant. The plaintiff herein himself appeared in civil suit no.82 of 1996 (filed by defendant herein) and filed written statement admitting the claim of present defendant and also made statement in the court to the same effect and thereupon judgment and decree dated 11.3.1996 were rightly passed. Plaint allegations have been denied by the defendant. Defendant also filed counter claim alleging that the plaintiff is occupying the disputed shop as licencee. The defendant, accordingly, claimed mandatory injunction directing the plaintiff to hand over the vacant possession of the suit property to the defendant. 4. Learned Additional Civil Judge (Senior Division), Pehowa vide judgment and decree dated 6.10.2006 dismissed the suit of the plaintiff as well as counter claim of the defendant. The defendant, accordingly, claimed mandatory injunction directing the plaintiff to hand over the vacant possession of the suit property to the defendant. 4. Learned Additional Civil Judge (Senior Division), Pehowa vide judgment and decree dated 6.10.2006 dismissed the suit of the plaintiff as well as counter claim of the defendant. First appeal preferred by the plaintiff has also been dismissed by learned Additional District Judge, Kurukshetra vide judgment and decree dated 24.12.2008. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. 5. The plaintiff besides summoning Record Keeper for producing the file in civil suit 82 of 1996 himself appeared in the witness box and broadly stated according to his version. On the other hand, defendant examined Mr. JB sharma, Advocate as DW2 who stated that he had filed written statement on the instructions of plaintiff herein in civil suit no.82 of 1996 admitting the claim of defendant herein made in the said suit. The defendant also examined mr. SD Murar, Advocate as DW1. He testified that he had identified the plaintiff herein when he made statement on 27.1.1996 in civil suit no.82 of 1996 admitting the claim of the defendant herein made in the said suit. Mr. Murar stated that the plaintiff had made the said statement in the court. 6. Learned counsel for the appellant contended that the defendant himself has not stepped into witness box. However, for this reason counter claim of the defendant has been dismissed but mere non-appearance of defendant in the witness box does not entitle the plaintiff to succeed in his suit. In so far as legality and validity of judgment and decree dated 11.3.1996 passed in civil suit no.82 of 1996 is concerned, the defendant herein could not have stated any material fact because counsel for the plaintiff herein appeared in that suit and the defendant herein could have no personal knowledge about the facts to be proved leading to the passing of the said judgment and decree. On the other hand, the defendant has examined Mr. J. P. Sharma, Advocate who has stated that he had filed the written statement on the instructions of the plaintiff herein, in the previous suit admitting the claim made by the defendant herein in that suit. The defendant has also examined Mr. On the other hand, the defendant has examined Mr. J. P. Sharma, Advocate who has stated that he had filed the written statement on the instructions of the plaintiff herein, in the previous suit admitting the claim made by the defendant herein in that suit. The defendant has also examined Mr. S. D. Murar in whose presence the plaintiff herein made statement in the court in the previous suit admitting the claim of the defendant herein. In these circumstances, non appearance of the defendant does not adversely affect his case regarding the validity and legality of judgment and decree dated 11.3.1996. On the other hand, the said judgment and decree were passed on the basis of written statement filed by the plaintiff herein and also statement made by him in that suit admitting the claim of the defendant herein made in that suit. The version of the plaintiff that he had not appeared in that suit nor filed written statement nor made statement in the court cannot be believed particularly because he has admitted his signatures on the aforesaid written statement as well as on the statement made in the court. Statement made in the court has to be attached some sanctity because otherwise the entire edifice of the administration of justice would crumble and fall to the ground. The plaintiff cannot be heard to say that somebody else had appeared for him to make statement and written statement which bear the signatures of the plaintiff himself. The plaintiff has also not led any evidence in support of his aforesaid version except appearing himself as witness and made bald, oral and self-serving statement. On the other hand, the defendant has examined two witnesses namely Mr. SD Murar, Advocate DW1 and Mr. JB Sharma, Advocate DW2. Both of them have demolished the stand taken by the plaintiff in the instant suit. There is, thus, no infirmity in the concurrent finding of both the courts below that judgment and decree dated 11.3.1996 passed in civil suit no.82 of 1996 are legal and valid and were not obtained by fraud and misrepresentation and the plaintiff is, therefore, not owner of the suit property. The aforesaid finding cannot be said to be perverse or illegal in any manner so as to warrant interference in the instant second appeal. The aforesaid finding cannot be said to be perverse or illegal in any manner so as to warrant interference in the instant second appeal. No question of law much less substantial question of law arises for determination by this Court in the second appeal. 7. Along with appeal, the appellant has moved CM No.7123. C of 2009 under section 151 of the Code of Civil Procedure (in short, CPC) for placing on record documents Annexures P/1 to P/7 and also CM No.7125. C of 2009 under order 41 Rule 27 read with section 151 CPC for additional evidence for producing same documents Annexures P/1 to P/7. However, these documents relate to some subsequent suit for possession filed by the defendant herein and the said suit was dismissed as withdrawn on the statement made by the defendant herein. The said documents have no bearing on the instant case. Accordingly both the aforesaid applications i. e. CM No.7123. C of 2009 and CM No.7125. C of 2009 are dismissed. For the reasons recorded hereinabove, I find no merit in the instant second appeal which is accordingly dismissed.