Delhi District Court
Angoori Devi Wd/O Late Sh. Harbhajan ... vs Sukh Lal (Since Deceased) on 12 October, 2011
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE
(SOUTH) - CUM - ADDITIONAL RENT CONTROL
TRIBUNAL, SAKET, NEW DELHI
ARCT No. 28/2010
ID No.: 02403C0283572010
1. Angoori Devi wd/o late Sh. Harbhajan Singh,
2. Amrit Singh s/o late Sh. Harbhajan Singh,
3. Mahinder Kumar s/o late Sh. Harbhajan Singh,
4. Ashok Kumar s/o late Sh. Harbhajan Singh,
5. Shobha d/o late Sh. Harbhajan Singh,
All R/o 351, Katwaria Sarai, New Delhi.
6. Usha d/o late Sh. Harbhajan Singh,
w/o Niranjan Lal,
R/o Village Bewari, Rajasthan,
7. Sanjay d/o late Sh. Harbhajan Singh,
w/o Sh. Bhagwan Singh,
R/o Village Chhuriavas, Rewari, Haryana
All LRs of Sh. Harbhajan Singh.
... Appellants.
Versus
1. Sukh Lal (since deceased)
through LR's
(i) Bal Kishan s/o late Sh. Sukh Lal,
(ii) Krishan Kumar s/o late Sh. Sukh Lal,
Both R/o 188C, Katwaria Sarai, New Delhi 110016.
(iii) Sukhbir Singh s/o late Sh. Sukh Lal,
(iv) Birwati w/o Sh. Bir Singh C/o Sukhbir Singh,
ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 1 of 46
Both R/o 172, Katwaria Sarai, New Delhi 110016.
2. Sh. Ram Bahadur,
3. A. V. Chitranjan Dass,
4. Salig Ram,
5. Sh. Jagan pershad,
6. Prem Bahadur
All respondents no.2 to no.6, unauthorised
subtenants R/o 172, Katwaria Sarai, New Delhi
... Respondents.
Instituted on:26.08.2010
Judgment reserved on: 27.09.2011
Judgment pronounced on : 12.10.2011
J U D G M E N T
1. This appeal under Section 38 of Delhi Rent Control Act (hereinafter referred to as "DRC Act") is directed against the judgment dated 21.07.2010 passed by Sh. Sandeep Yadav, Rent Controller (South) in eviction case registered as E201/09(1990), whereby the petition for an order of eviction preferred on 10.08.1990 by the predecessorininterest of the appellants on the grounds under Sections 14(1)(a) & (b) DRC Act was dismissed.
2. The appeal has been resisted by the respondents no.1.
3. I have heard Sh. H. L. Narula, advocate for the appellants and Sh. Virender Kumar Sharma, advocate for respondent no.1 at ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 2 of 46 length. I have gone through the record.
4. It will be apposite to take note at the outset of the history of this litigation and the background facts in brief.
5. The eviction petition was preferred on 10.08.1990 by Harbhajan Singh son of Sh. Kishan Lal Jatia, describing himself as the landlord, a resident of B24A3, IIT, New Delhi. The original petitioner Harbhajan Singh died on 29.08.1992, during the pendency of the eviction case. On application under Order 22 Rule 4 CPC, his successorsininterest were substituted in his place. They are now appellants before this court. It may be mentioned here that the said legal heirs of original petitioner include his son Amrit Singh who would appear as their witness (AW1) during the trial before the Additional Rent Controller (ARC).
6. The original petition impleaded Sukh Lal son of Sh. Harbal described as resident of 172, Katwaria Sarai, New Delhi as respondent no.1. In the eviction petition, the said Sukh Lal was claimed to be tenant in respect of suit property under the original petitioner. Sukhlal contested the eviction petition through a written statement and (in the course of trial before the ARC), even appeared as his own witness (RW5).
ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 3 of 46
7. The eviction petition also impleaded five other persons namely Ram Bahadur, A. V. Chitranjan Dass, Salig Ram, Jagan Pershad and Prem Bahadur, shown in the array of the parties as respondents no. 2 to 6. They were described in the eviction petition as subtenants inducted by respondent no.1. The said respondents no.2 to 6, however, chose to suffer the proceedings exparte as they would not appear despite service.
8. The eviction petition alleged that the property described as 172, Katwaria Sarai, New Delhi comprising four rooms, kitchen, bathroom, lavatory, courtyards, stairs on the ground floor, two rooms and chhaja on the first floor covering original area of 30"
x 20", (2" x 4" being part of the street having been added afterwards) had been let out by Harbhajan Singh in favour of Sukh Lal on oral tenancy in January, 1982 at the rent of Rs. 400/ per month. It was claimed that with mutual consent of the original petitioner and respondent no.1, it was agreed that the latter (the tenant) would raise further construction wherein the expenditure towards cost of construction incurred by the respondent no.1 from his own funds and which amount was to be adjusted towards rent payable to the petitioner. It was claimed that in terms of this arrangement, rent of the premises ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 4 of 46 in tenancy stood increased to Rs.600/ per month with effect from 01.04.1987.
9. The petition further alleged that the respondent no.1 had sub let, assigned or parted with the possession of part of the premises to respondents no.2 to 6. It was claimed that respondents no.2 to 6 had been inducted by respondent no.1 in different portion in green colour (markA, markB, markC, markD, and mark E respectively as shown in the site plan), at the rent of Rs. 300/ per month, Rs.300/ per month, Rs.175/ per month, Rs.250/ per month with effect from April, 1987, June, 1987, August, 1987, October, 1987 and December, 1987 respectively. It was also alleged that the respondent no.1 had neither paid nor tendered the arrears of rent with effect from October, 1987, inspite of service of notice of demand dated 12.04.1990.
10.The respondent no.1 who contested the proceedings submitted written statement on 20.11.1990. In the said written statement he denied the relationship of landlordtenant between the petitioners on one hand and himself on the other. According to his pleadings, he himself was the absolute owner of the property in question. He claimed that originally there existed two ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 5 of 46 chhapars, one in front and one on the back side in the suit property. He (respondent no.1), claimed to have constructed in 1972 one room on the back side to which two rooms were added on the first floor in 1985 besides the other construction later made.
11.Respondent no.1 pleaded in the written statement that one Panna Lal son of Sh. Mithwa claimed to be the owner of the area of land admeasuring 30 ft x 20 ft bounded on the East by property of Khakhi Ram, on the West by Harijans Chaupal, on the North by passage and on the South by property of one Pakharia. It was also stated by respondent no.1 in the written statement that the said piece of land claimed to be of ownership of Panna Lal was sold by said Panna Lal through a sale deed, duly registered on 11.01.1961 in the office of SubRegistrar, Delhi to the petitioner Harbhajan Singh.
12.The respondent no.1 pleaded that he having claimed the ownership of the land in question and the chhappar existing thereon, a Panchayat was convened wherein a decision was taken on 21.11.1971, in terms of which the petitioner Harbhajan Singh "handed over papers pertaining to the land to the respondent no.1 and admitted he had no right in the same and ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 6 of 46 will not take any action in respect thereof". Respondent no.1 further pleaded that the petitioner Harbhajan Singh had also "admitted" that he had returned back the land of respondent no. 1 to him and that "endorsement to that effect was made on the back of the registered sale deed and was duly signed by the petitioner and the other members of the Panchayat". Respondent no.1 also claimed that a sum of Rs.1000/ was received by the petitioner from him in respect of the said land "in pursuance to the Panchayat faisala".
13.Respondent no.1, thus, claimed to be the owner of the property in question and questioned the locus standi and the cause of action pleaded by the petitioner stating that he was neither the owner nor the landlord. The respondent no.1 conceded in the written statement that respondents no. 2 to 6 were at the time of the filing of the written statement, tenants under him in respect of different portions of the property in question, having been inducted at different points of time, at different rates of rent. He claimed that his son Sukhbir (who was later substituted as one of the legal heirs of original respondent no.1 upon his death) had constructed a tinshed in a part of the property in question which was bounded by walls and a gate. According to the ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 7 of 46 written statement the said portion of land was in possession and use of Sukhbir, rest of the accommodation being with the persons admittedly inducted as tenants by respondents no.1.
14.Against the backdrop of abovementioned facts, respondent no.1, in the written statement filed by him, denied the claim of the petitioner that he had been inducted as tenant in January, 1982 or that any construction had been raised in the said property by the petitioner. He denied that it had ever been agreed that he (respondent no.1) would raise further construction or that expenses incurred by him in the process were to be adjusted towards rent or that after such adjustment, the rent would increase from initial Rs.400/ per month to Rs. 600/ per month. He denied that there had been any subletting, assignment or parting with possession by him, while insisting that he had inducted respondents no.2 to 6 as tenants in his own rights. He denied having ever received the notice of demand dated 12.04.1990.
15.The respondent no.1 Sukh Lal in his written statement submitted on 20.11.1990 also made certain additional pleadings. He sated that in case it were to be held by the court that he is not the owner of the land beneath the construction or that the ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 8 of 46 endorsement dated 27.11.1971 on the back of the registered sale deed "is of no legal effect", then his claim was that he having been "in actual, physical continuous, uninterrupted, hostile, unequivocal possession of the land for the last more than 30 years in assertion of his own rights as owner thereof and in denial of the right of the true owner and he having raised the "entire construction" with his own funds and resources had "acquired title to the land by adverse possession and prescription and the title and interest of the petitioner, if any has been extinguished".
16.The petitioner Harbhajan Singh through replication filed on 04.08.1992 controverted the pleadings in the written statement to above effect. He denied the history of the title to the property in question as narrated in the written statement, particularly refuting the claim of respondent no.1 about he having agreed to transfer the property in question or having made endorsement on the sale deed. He claimed that endorsement, if any, on the document was an act of forgery. He denied the claim of respondent no.1 to be owner of the property in question or to have acquired any right, title or interest therein either by way of endorsement on the sale deed or by way of adverse ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 9 of 46 possession. He reiterated his case that he had been and continued to be the absolute owner of the property and in exclusive possession.
17. The eviction petition resulted in trial, during the pendency of which the original petitioner died on 29.08.1992. After his legal heirs had been substituted, the trial began in the course of which Amrit Singh son of Sh. Harbhajan Singh appeared as AW1. Respondent no.1, on the other hand, examined five witnesses which would include he himself appearing as RW5. The other witnesses were Karan Singh RW1, Hukam Singh RW2, Meer Singh RW3, Sushil Kumar RW4. RW4 is an official from the office of SubRegistrar, Asaf Ali Road, New Delhi and produced certified copy Ex. RW 4/1 of the sale deed executed on 11.01.1961 by Panna Lal son of Sh. Mithwa in favour of petitioner Harbhajan Singh. RW1, RW2 and RW3 are witnesses from the neighbourhood who spoke about a settlement between the petitioner on one hand and respondent no.1 on the other, resulting in an endorsement on the sale deed by the former in favour of the latter, pursuant to intervention of Panchayat.
18.The case came to be decided by Sh. K. S. Pal, ARC vide ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 10 of 46 judgment dated 02.11.1996. In the said judgment, the ARC concluded that it had been proved on record that the respondent Sukh Lal was not the owner of the property by virtue of endorsement on the back of the sale deed Ex. RW 2/1. But this would not mean that tenancy of respondent no.1 in resepct of the suit property had been proved. The ARC concluded that the question of respondent no.1 becoming tenant under the petitioner did not arise, if he had been in possession of the suit property by virtue of the endorsement dated 27.11.1971. He found it to have been proved as a fact that the construction on the first floor etc. had been made by respondent no.1 at his own expenses and that he had even got installed water/electricity connection. He concluded that the facts and circumstances showed that respondent no.1 had been in possession of the property not as a tenant but as owner on the basis of endorsement on the back of the original sale deed Ex. RW 2/1. At the same time, he concluded that the plea taken by respondent no.1 that he has become owner by adverse possession could not be considered by the court (of ARC) and for obtaining relief on that basis the parties had to approach the civil court.
ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 11 of 46
19.The ARC also concluded in the judgment dated 02.11.1996 that it had been proved that demand notice (Ex. AW 1/2) dated 12.04.1990 had been served upon the respondent no.1 and that no reply had been given thereto. The ARC, however, observed that no adverse inference could be taken on that basis on the question of ownership. The petition was dismissed on the ground that the petitioner had failed to prove the existence of relationship of landlordtenant visavis respondent no.1.
20.The judgment dated 02.11.1996 of the ARC was challenged by the appellants before the Rent Control Tribunal. The appeal RCA No. 194/2000 (1996) came up for consideration and disposal before Sh. H. P. Sharma, Additional Rent Control Tribunal, Delhi (ARCT) who allowed the appeal vide judgment dated 03.02.2001.
21.In the view of the ARCT, the petitioner had been successful in proving his case about the existence of relationship of landlord tenant between the parties. The contentions of respondent no.1 regarding his claim of ownership over the suit property on the basis of endorsement on the copy of the same deed and on the plea of adverse possession were found without merit. The ARCT concluded that the respondent no.1 had run into arrears ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 12 of 46 and had failed to pay the rent inspite of service of demand notice dated 12.04.1990. It took note of the pleadings in the written statement about respondent no.1 having inducted respondents no.2 to 6 as tenants in different portions of the suit property. On the basis of these conclusions, the ARCT passed an order under Section 15(1) DRC Act directing respondent no. 1 to pay to the appellants or deposit in the court of ARC arrears of rent @ Rs.600/ per month with effect from 01.10.1987 onwards till date. It directed that in case of compliance, respondent no.1 shall be entitled to the benefit of protection under Section 14(2) DRC Act. However, on the basis of conclusions respecting the tenancies in favour of respondents no.2 to 6, it found that the appellant had proved his case on the ground under Section 14(1)(b) DRC Act. Therefore, an eviction order on that ground was passed.
22.The respondent no.1 took the matter to Hon'ble High Court through CM(Main) 185/2001. Before the Hon'ble High Court, respondent no.1 moved applications seeking opportunity for producing further documentary evidence. The petition was disposed of by Hon'ble High Court vide judgment dated 29.07.2009. It was, interalia observed that the additional ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 13 of 46 documents which are of the period prior to 1987 and which would show the address of respondent no.1 as that of the suit property, if proved on record, would have a bearing on the claim of the appellant herein of being the landlord of the respondent no.1 since 1987. Hon'ble High Court, therefore, expressed inclination to allow the said application for additional evidence and to permit respondent no.1 to place on record "only such documents which specifically relate to premises no. 172, Katwaria Sarai and are in the name of the petitioner of the period prior to 1987".
23.The prayer for opportunity for additional evidence made by the respondent no.1 having, thus, been allowed, the judgment dated 03.02.2001 of ARCT was set aside and the matter remanded by Hon'ble High Court to the court of Rent Controller with permission to respondent no.1 to lead evidence in respect of such documents only (as mentioned above), with liberty also given to the appellants to lead rebuttal evidence in relation to such evidence as might be laid as a consequence by the respondent no.1.
24.During the pendency of the proceedings before the Hon'ble High Court, respondent no.1 died, the death having occurred on ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 14 of 46 16.02.2002. On an application being moved in that regard, the legal heirs of respondent no.1 came to be substituted as per amended memo of parties filed on 25.02.2010.
25.During the proceedings after remand, Sukhbir Singh son of respondent no.1 was examined as RW6. In addition to the said evidence, seven other witnesses were examined by the legal heirs of respondent no.1. They would include Bhupender Kumar (RW7), an official from office of SubRegistrar Births & Deaths; Sultan Mohd. (RW8) an official of Jal Board, Mehrauli; Hukam Chand Meena (RW9) Principal Primary School, Katwaria Sarai; D. K. Bhardwaj (RW10), an official from Govt. School R. K. Puram; Nirmal Marwah (RW11), an official of BSES, Rajdhani Power Limited; Ram Tirath (RW12) Patwari Sadar Kanoongo; and Gian Chand (PW13), Secretary of Residential Welfare Association Katwaria Sarai.
26.The Legal heirs of respondent no.1 concluded their (additional) evidence on 13.04.2010. On the same day, the counsel for the appellants made a statement to the effect that they did not want to lead any evidence in rebuttal.
27.The learned Rent Controller, thereafter, heard arguments and decided the case afresh vide judgment dated 21.07.2010. He ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 15 of 46 concluded that the appellant had failed to prove that the original petitioner Harbhajan Singh was the landlord and the respondent no.1 Sukhlal was the tenant in respect of the property in dispute. On the basis mainly of this finding, the Rent Controller dismissed the petition.
28.Through the appeal at hand, the appellants have challenged the legality, correctness and propriety of the findings recorded by the Rent Controller in the judgment dated 21.07.2010. It is submitted on their behalf that the Rent Controller has fallen in error in that the evidence on record has not been properly appreciated.
29.The appellants based their case before the Rent Controller mainly relying on the sale deed dated 06.01.1961 executed by Panna Lal son of Mithwa in favour of Harbhajan Singh in respect of the land beneath the suit property. The execution of the said sale deed and its registration is admitted even by the respondent no.1. In fact, the respondents themselves brought on record a certified copy of the registered document vide Ex. RW 4/1 through RW4, official from the office of SubRegistrar.
30. The original sale deed has not been brought on record. It was stated by AW1 during his examination in chief that the original ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 16 of 46 document had been destroyed in a fire which had broken out in the house of the appellant in 1965. He would, therefore, also rely on certified copy of the said sale deed vide Ex. AW 1/7, which is same document as Ex. RW 4/1. The respondent did not contest the claim of AW1 about the original document having been destroyed in fire in 1965. Therefore, and also for the added reason that the execution of the said sale deed and its registration is admitted by both sides, nothing turns against the case of the appellants on the nonproduction of the original sale deed.
31.Though it has been claimed in the pleadings and in the course of evidence by and on behalf of respondent no.1 that the dispute when taken to the Panchayat by him, a settlement had been arrived at in November, 1971, whereunder the original petitioner Harbhajan Singh had made endorsement on the original sale deed dated 06.01.1961 (executed by Panchayat in his favour) acknowledging the right, title and interest of the respondent no.1 and had handed over the said original sale deed with such endorsement to him, i.e. respondent no.1. The document on which such endorsement purports to have been recorded and attested by certain witnesses has been presented ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 17 of 46 in the course of evidence as Ex. RW 4/1. It is not the original sale deed but a certified copy of the sale deed obtained on 16.12.1969, on the basis of application moved in the office of SubRegistrar on 28.11.1969. The endorsement purporting to be under the signatures of the original petitioner Harbhajan Singh is in Hindi and is to the effect that pursuant to a decision by Panchayat on 21.11.1971, he was handing over the documents relating to the registry to Sukh Lal son of Harbal and hereinafter he (Harbhajan Singh) would have no title to the land in question, also assuring that he would not take any action concerning this piece of land in future. It also purports to add that he (Harbhajan Singh) was "returning the land" to Sukh Lal.
32.AW1 proved site plan Ex. AW 1/1 which depicts the disputed premises in colour red. He narrated the different portions let out by respondent no.1 in favour of other respondents with reference to the said site plan and affirmed on oath that respondent no.1 had never obtained any permission, in writing or otherwise, to let out to different persons. It may be mentioned here that this part of the case of the petitioner was never contested by the respondent no.1 as he would assert having let out different portions to the other respondents in his ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 18 of 46 own independent rights.
33.AW1 affirmed on oath that his father was owner of the suit property and that it was assessed for purposes of House Tax in his name. He also asserted on oath that his father had never sold the property to any other person nor to respondent no.1. He also stated that his father had never taken any sum of Rs. 1000/ from respondent no.1
34.AW1 also proved the notice of demand vide Ex. AW 1/3 whereby the original petitioner had called upon the respondent no.1 to pay to him arrears, of rent at the rate of Rs.600/ per month with effect from October, 1987 from which date the noticee had fallen in arrears, having been inducted originally as tenant in the suit premises at the rate of Rs.400/ per month which was later revised on account of expenses incurred by the noticee for raising further construction as has been allowed. In the notice, the original petitioner set out the background facts on same lines as pleaded in the eviction petition. The notice also referred to the induction of other respondents as unauthorised subletees by the respondent no.1.
35.AW1 proved the dispatch of legal notice Ex. AW 1/2 sent by registered AD post against postal receipt Ex. AW 1/3. The ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 19 of 46 notice had also been sent to respondent no.1 and others under postal certificate Ex. AW 1/4. The postal article Ex. AW 1/5, however, had returned with the report of refusal upon tender. The returned postal article has also been proved by AW1.
36.As mentioned earlier, the receipt of the legal notice dated 12.04.1990 had been denied in the pleadings by respondent no.
1. The fact that this denial was wrong and false to his own knowledge, came out on record during the crossexamination of RW 5, when he conceded that he had actually received the notice Ex. (AW 1/2) sent by the petitioner also conceding at that stage that he had neither sent any reply to the notice nor paid any rent to the petitioner after receipt of the said notice.
37.During crossexamination of AW1, he was questioned about the history of the title to the suit property as claimed by the petitioner. In answer to the questions raised on behalf of the respondent no.1 at that stage, AW1 explained that his father had purchased this property from Panna Lal in 1961 for consideration of Rs.400/. He admitted that at that stage the only construction existing was in the form of two chhappars. He stated that respondent no.1 had been inducted as tenant on oral agreement, as per the prevalent practice in 1982 by the ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 20 of 46 original petitioner. He reiterated the case in the petition to the effect that respondent no.1, having been inducted as a tenant in respect of the entire house, had carried out construction on the first floor and the amount spent was accounted for in the rent. He further reiterated the case that the rent stood increased to Rs.600/ from October, 1987, subsequent to the construction.
38.As mentioned earlier, in the written statement it was the case of respondent no.1 that at the time of settlement before Panchayat on 21.11.1971 an amount of Rs.1000/ had been paid by respondent no.1 and received by the petitioner "in respect of the said land". In this context, reliance is placed on a receipt purported to be dated 27.11.1971 which has been produced in evidence as Ex. RW 5/1. It purports to be an acknowledgement on the part of the petitioner Harbhajan Singh having received from Sukh Lal, the said amount of Rs. 1000/ in respect of the land. In the receipt, there is no description of the land in context of which the amount had been paid/received. During cross examination of AW1, it was put to the witness that it was he who had received the amount of Rs.1000/before the Panchayat. AW1 denied the suggestion as incorrect. AW1 conceded that he had not paid any house tax and further electricity and water ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 21 of 46 connection was in the name of respondent no.1 who was making the payment of electricity and water charges.
39.AW1, during his crossexamination, asserted that the respondents no.2 to 6 were paying rent in respect of their respective portions to respondent no.1. He would not, however, know from which date they had been inducted as tenants by respondent no.1. This is of no consequence as the factum of they having been inducted as tenants by respondent no.1 is admitted even in the pleadings.
40.During the crossexamination of AW1, he was not confronted either with the endorsement Ex. RW 1/1 dated 21.11.1971 on the back of the sale deed Ex. PW 4/1 or with the receipt dated 27.11.1971 vide Ex. RW 5/1. Mere suggestions that respondent no.1 was the owner of the suit property and further that there was no relationship of landlordtenancy between the parties were suitably denied by AW1.
41.The respondent no.1 examined himself as RW5 to depose that "previously" he was the owner of the suit property and that he had allowed Panni Lal (same person as named Panna Lal in the sale deed Ex. AW 1/7) who he would describe as his nephew. RW5 deposed that Panna Lal had sold the suit property to the ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 22 of 46 petitioner by playing a fraud. He deposed that it was he who had constructed pakka house after 1971. He stated that Panchayat was held wherein the petitioner had handed over "the possession of the suit premises to him against the payment of Rs.1000/". He also deposed that he had paid Rs.1000/ to the petitioner "before the Panchayat", as per the receipt Ex. RW 5/1 which he stated had been executed by the petitioner. He further stated that after he had been given possession of the suit premises, he had constructed six rooms in the form of two storied building in which he had inducted other tenants though he would not remember their names. He further stated that the other tenants has been inducted some time in 1981 at different rates of rent and further that the said tenants were paying rent either to him or to his son Sukhbir (RW6). He further stated that he had never paid any rent in respect of the suit premises to the petitioner. He referred, in this context, to the assessment of the property in his name and the electricity & water connections installed therein in his name.
42.RW5, during his statement, denied having received any notice from the petitioner. But then, as mentioned earlier, during crossexamination, he would himself show that this was not the ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 23 of 46 truth and that he had actually received the notice Ex. AW 1/2 from the petitioner.
43.In order to find corroboration to his word, the respondent no.1 also relied on the evidence of RW1, RW2 and RW3. These witnesses are stated to be from the neighbourhood who were acquainted with both sides. They were projected as witnesses to the settlement in Panchayat in November, 1971.
44.RW1 stated that originally Panni (i.e. Panna Lal) was the owner of the suit property. He further affirmed that Panna Lal had sold the suit property to Harbhajan Singh some time in 1969. According to him, Sukh Lal had asked Harbhajan Singh to deliver the said property to him "as the same belonged to his relatives". He stated that the matter was taken before Gram Panchayat and, in 1971, the matter was settled before Gram Panchayat where it was agreed that Sukh Lal would give Rs. 1000/ to Harbhajan Singh within two or three weeks and thereafter Harbhajan Singh would deliver the possession of the suit property to Sukh Lal. RW1 stated that Harbhajan Singh had handed over the original sale deed to the Gram Panchayat and an endorsement about the settlement was recorded on the back of the original sale deed.
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45.RW2 stated that the suit property originally belonged to Panni who had sold it to Harbhajan Singh for Rs. 400/. He stated according to Sukh Lal, the property belonged to his relatives and he had "better right over it". He deposed that in the Panchayat of the Welfare Association, the matter was settled and it was decided that Sukh Lal would give Rs.1000/ to Harbhajan Singh and, in turn, Harbhajan Singh would hand over the suit property to him. RW2 claimed to have been present when this settlement was reached and endorsement made on the back of the sale deed as per copy Ex. RW 2/1.
46.RW3 deposed that, originally, Panni was the owner of the suit property and Harbhajan Singh had purchased the same from Panni. He stated that Sukh Lal had purchased the said property from Harbhajan Singh and that in the Panchayat it was settled that Sukh Lal would give Rs.1000/ to Harbhajan Singh (as sale consideration) of the suit property. He also referred to the endorsement on the document Ex. RW 2/1 on which he had signed as attesting witness.
47.During crossexamination, RW1 stated that Rs.1000/ was given before the Panchayat in his presence on the day of the settlement and making of the endorsement on the back of the ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 25 of 46 sale deed. He deposed that, to his knowledge, no other sale deed was executed. He stated that Panchayat had given its decision in writing but the said decision was not got registered. He also stated that the possession of the house was delivered in his presence after the decision of the Panchayat.
48.RW2 claimed that the Welfare Association which he had referred to was a registered body, though he was unable to give its particulars. He had not seen the title documents of Panni. He would describe Panni and Sukh Lal as cousins. According to him, Panni and Sukh Lal had equal shares in the house.
49.RW3 also stated under crossexamination that Panni and Sukh Lal were cousins and that he had not seen the title document of Panni. He, however, admitted that Harbhajan Singh had purchased the suit property from Panni. He further conceded that no agreement was executed in his presence between Harbhajan Singh and Sukh Lal before the Panchayat.
50.When the matter had been remanded by Hon'ble High Court with permission to respondent no.1 to lead additional evidence, though liberty was restricted to documents which had been executed prior to 1987, specifically in respect of the premises no. 172, Katwaria Sarai, the opportunity seems to have been ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 26 of 46 availed by RW6 so as to introduce on record documents beyond the scope of the said permission.
51.RW6 introduced the said additional material through his affidavit Ex. RW 6/X sworn on 24.11.2009. Noticeably, in para 3 of the said affidavit, he would himself state that earlier statement made by his late father (RW5) "also be read herein and not repeated".
52.The documents brought on record through the affidavit Ex. RW 6/X of RW6 include SC certificate dated 24.01.1971 in his favour (Ex. RW 6/1); School leaving certificate dated 28.07.1977 in respect of his brother Krishan Kumar (Ex. RW 6/2); Certificate issued by a Government School in his favour on 30.11.1979 (Ex. RW 6/3); Certificate issued by a Muncipal school dated 23.12.1981 in favour of his brother Krishan Kumar (Ex. RW 6/4); documents dated 22.09.1985 and 09.08.1985 in connection with election of Sukh Lal as Pradhan of Harijan Welfare Association of the Area (Ex. RW 6/5 and 6/6); Birth Certificate of his own daughter dated 30.01.1985 (Ex. RW 6/7) along with Ration card (Ex. RTW 6/810); Certificate issued by local Residents Welfare Association in favour of Sukh Lal (Ex. RW 6/11); Certified copy of old revenue record of the suit ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 27 of 46 property with site plan (Ex. RW 6/1213) with Hindi translation (Ex. RW 6/XY); letter dated 09.12.1983 regarding water connection/boring (Ex. RW 6/14) along with water bills (Ex. RW 6/14A to M) for the period 1984 to 1989; documents relating to water connection pertaining to 04.02.1984 (Ex. RW 6/15 and 15A to I); documents relating to electricity connection for the period 1984 to 1988 (Ex. RW 6/16A to D); House Tax receipts (Ex. RW 6/17 to 20); Pension book dated 01.03.1976 in respect of Sukh Lal (Ex. RW 6/21); Certificate of service dated 22.04.12942 in respect of Sukh Lal (Ex. RW 6/22); Identity Card of Sukh Lal dated 13.02.1946 (Ex. RW 6/23), Certifidate dated 27.07.1962 from Village Pardhan (Ex. RW 6/24); Letter dated 01.03.1976 of Ministry of defence (Ex. RW 6/26); Ration card of 1986 (Ex. RW 6/26); documents relating to a purchase, agreement etc. relating to 1986 (Ex. RW 6/27 to
30).
53.Since the case of the petitioner even in the original petition has been that respondent no.1 was inducted as tenant in January 1982, most of the documents which pertain to the period after January, 1982 are of no consequence either way. The possession of respondent no.1 in respect of the suit property ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 28 of 46 since January, 1982 is admitted. Therefore, nothing turns on such documents as show his presence or connection with the property for the period starting with January 1982.
54.During his crossexamination on 28.01.2010, RW6 tried to introduce altogether a new complexion to the case. He stated under crossexamination that the general understanding/ consciousness of his father had started deteriorating some 20 years before his death. Death. As mentioned earlier, the death had occurred on 16.10.2002. Thus he was referring to period beginning 1982. He claimed that it was difficult to say that on the day the statement of his father was recorded in the court, he would have been in a sound physical and mental health. He claimed that he had told about physical and mental health and condition of his father at the relevant time of recording his statement. This theory, in fact, had been attempted to be developed originally in the pleadings Ex. RW 6/X8 in Civil Misc. (Main) no. 185 fo 2002. In the said petition, drafted and presented under the signatures of Sukh Lal himself, it was pleaded before the Hon'ble High Court that he was a man aged about 90 years who had undergone heart operation and that the appellant court (ARCT) had completely misconstrued, and ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 29 of 46 misinterpreted out of context, the evidence particularly the statement made by him as RW5 during his crossexamination.
55.The effort on the part of RW6 to wriggle out of the statement of RW5 by implying (not stating in so many words) that he was not in a sound mental or physical condition cannot be given much credit, in as much as in the latter part of his statement RW6 would concede that Sukh Lal was in good physical and mental condition even in August, 2001. It is clear from the record that relying upon the last Will and testament dated 27.08.2001 left behind by respondent no.1, RW6, had inter alia, moved an application along with other legal heirs of Sukh Lal and got himself and others substituted in his place vide order dated 14.01.2003 of Hon'ble High Court in CM(M) No. 185/2001. Thus, the endorsement of RW6 to escape from the conclusions on the basis of admission on part of RW5 must be repelled, especially as in affidavit Ex. RW 6/X, he would himself beseech the statement of his father to be read as part of his statement.
56.RW7 only proved the documents relating to registration of Birth in 1985.
57.RW9 proved School leaving certificate dated 23.12.1981 in ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 30 of 46 respect of Bal Kishan another son of Sukh Lal. RW9 was only party examined but on objection to the documents sought to be produced by him being taken his evidence was not pressed further nor witness tendered for crossexamination.
58.RW10 produced on record certified copy of documents Ex. RW 10/1 and 10/2 relating to admission/withdrawal register of the school in respect of RW6, pertaining to 1979 to 21.07.1982. It was brought on record during his cross examination that the address mentioned against relevant entry in Ex. RW 10/1 is "147 Katwaria Sarai, Delhi" and in the other record there is no address indicated.
59.RW8 proved documents relating to the water connection in the suit premises on the basis of water connection installed on 06.02.1984.
60.RW11 is a witness from BSES Rajdhani Power Limited who proved existence of electricity connection in the name of Sukh Lal since 09.02.1984.
61.RW12 brought on record documents Ex. RW 12/1 and 12/2 on the basis of record of Sadar Kanoongo Branch. It relates to the year 1963. During crossexamination, he could not tell what are the numbers mentioned in the map Ex. RW 12/2. He was unable ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 31 of 46 to state if the Map pertains to whole Abadai or of village Katwaria Sarai. He did not know if particulars of change of possession of houses in village was recorded in the said office record or not.
62.RW13 is General Secretary of the Resident's association of Katwaria Sarai who had issued certificate Ex. RW 13/1. His crossexamination would show that certificate is not based on any particular record maintained by the Residents Welfare Association . It came out during his crossexamination that sons of the original respondents no.1 have different houses in the same area. He was unable to tell as to when the sons of Sukh Lal constructed their respective houses. He conjectured that the premises in question may have been constructed by father of Sukh Lal.
63.Amongst the documents that have been brought on record during the additional evidence allowed by Hon'ble High Court through the mouth piece of RW6, there are several which do not take the case of the respondent no.1 any further in as much as the possession of the suit premises since January, 1982 in his hands is admitted. These documents would include those relating to the permission for boring, water bills, water meter, ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 32 of 46 electricity bills, ration card, purchase of television etc. Aks shazra and site plan as sought to be proved on record through RW 6/12 and 6/13 is of no help as there is nothing in the said documents reflecting the identity or title of the suit property.
64.A number of documents filed by RW6 through his affidavit Ex. RW 6/X are of doubtful origin. Such of these documents as relate to Residents Welfare Association are not supported by any corroborative evidence. It is own case of respondent no.1 that so long as he was alive, he was himself the Pradhan of the local area community. After his death, his son Krishan Kumar has taken over as Pradhan. The name of the Welfare Association on various certificates varies from one document to the other.
65.In the affidavit, RW6 would refer to document Ex. RW 6/17 as House Tax Receipt. Ex. RW 6/17 in fact is not a receipt but a notice issued under Section 126 of Delhi Municipal Corporation Act, 1957. The document, on its face, appears to be a doctored one. It has been presented on record in a laminated condition. Even when examined by naked eye, it reveals that it was addressed by MCD to the owner of House No. 172 named Harbhajan Singh. The expression "owner" and the name of ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 33 of 46 Harbhajan Singh have been later scored off by some one and instead name of Sukh Lal son of Harbal added. The document in this condition cannot be accepted as a good proof of the interest of respondent no.1 in the property. In all fairness, it required to be strictly proved on the basis of record of MCD. No such effort has been made to prove the document in accordance with law. Same is the position with regard to the document Ex. PW 6/18 and 19. Even otherwise, they are very illegible documents which cannot be taken as good proof on their own without confirmation from the official records.
66.Some of the documents referred in the evidence of RW6, i.e., an agreement Ex. RW 6/28, stamp paper Ex. RW 6/29 and promissory note Ex. RW 6/30 are also not reliable. First of the said documents purports to be one recorded on 17.12.1987 as agreement executed by Orde Investment Ltd., an agency functional from Asaf Ali Road, New Delhi. It is addressed to RW6 at address F172, Katwaria Sarai, New Delhi. It refers to some agreement dated 13.11.1986 relating to purchase of a television. The said agreement has not been produced in evidence. No official from the agency in question has been called in evidence to prove this document on the basis of office ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 34 of 46 records.
67.Mere production of an agreement or affidavit cannot be taken as a good proof in its respect. Stamp paper Ex. RW 6/29 is a blank document. Endorsement on its reverse does not even reveal as to who purchased this stamp paper or for what purpose. It is not even clear for which document this stamp paper was utilized by RW6. The document referred in the affidavit as promissory note Ex. RW 6/30 also is wholly unreliable as it does not show in what context it was executed. It is in two parts, one meant to be executed as promissory note and other as a receipt. Except for signatures of the executant and the witnesses, all the remaining columns are left blank.
68.All the remaining documents as brought on record through RW6 also do not help the respondent no.1 as they do not refer to the property by its full description. Reference to House No. 172 is missing. Therefore, these documents cannot be the basis of a claim that they show control of respondent no.1 over house no. 172 Katwaria Sarai.
69.During crossexamination of RW6, certain facts came to the fore. RW6 claimed that municipal numbers of the house in the area known as Katwaria Sarai came to be allotted some time in ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 35 of 46 1960. Though there is no corroboration to this claim from any official records. In absence of any other material this may be taken as the correct position. But then, the manner in which municipal numbers seem to have been assigned would indicate that houses are not located in a particular ascending or descending order of number. This is reflected by statement of RW6 during his crossexamination that house no. 188 (admittedly of respondent no.1) is adjacent to house No.199 (which belongs to Krishan Kumar son of respondent no.1). What however of great import is the fact that RW6 admits that respondent no.1 as also the petitioner would own a number of houses in the area of Katwaria Sarai. The Houses of respondent no.1 (even as per RW6) would include House nos. F188, 188B and 188C. The description of the house as revealed by RW6 itself shows numbering of the houses by the municipal authority does not follow a particular pattern.
70.It is clear from the statement of RW6 that house no. 172, is distinct from house no. F172. This exposes the effort on the part of respondent no.1 to pass off certain documents relating to his other property in Katwaria Sarai as documents showing his connection with property no. 172 Katwaria Sarai. ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 36 of 46
71.It is the argument of the respondent no.1 that in a case of this nature, it is the jural relationship of landlordtenant which needs to be shown and proved and that the question of title qua the property of the person claiming to be the landlord is of no consequence. He refers in this context to Puthiya Velappil Ayissama Vs. Chowakkaram Puthiya Purayil Bavachi Keyi [AIR (37) 1950 Madras 61]; Uda Ram Vs. Tej Karan [1975 RCR 271]; Ambala Bus Syndicate (P) Ltd. Vs. Indra Motors [VII1969 AIRCJ 569 and Rajinder Lal Vs. Bhushan Monga [2003(1) RCR 242].
72.While it is not wrong on his part to submit that it is essentially the relationship of landlordtenancy which is to be found and acted upon in proceedings before the Rent Controller Authority, in the present case the question of title has been raised by the respondent himself. In the facts and circumstances, there is no escaping consideration of the material adduced so as to answer the issue of fact raised by him, firstly as to his claim of being a person in possession on account of ownership and secondly that of his plea, in the alternative, based on the principle of adverse possession.
73.It is further the argument of the respondent no.1 that the ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 37 of 46 document on which the petitioner claims ownership is actually not a sale deed but an agreement to sell. He submitted that document Ex. RW 4/1 did not transfer any right, title or interest in favour of the petitioner because it uses expression that the vendor "had agreed to sell and transfer and convey" and further because the entire consideration had not been acknowledged to have been paid, the balance being shown as payable before the SubRegistrar at the time of registration of the document. His argument is that this document is a sham transaction and, therefore, confers no title, particularly because there is no proof adduced as to the tile of the person executing it as the vendor. Reliance has been placed on Lala Parsotam Das Vs. Syed Ali Haidar & others [AIR 1937 Oudh 493]; Sri Padma Kumari Patto Mahadevi Vs. Nanda Padhan and anr. [ AIR 1941 Patna 219]; Chitu Vs. Charan Singh and anr. [AIR 1923 Allahabad 563]; Beyas Singh and others Vs. Ramjanam Ahir and others [AIR 1961 Patna 16] and Yellapragada Gopalkrishanamurthi Vs. Pettu Poda Madireddi and others [ AIR (36) 1949 Madras 883].
74.I have given my considered thoughts to the above submissions but find no merit in the contentions of the respondent no.1. The ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 38 of 46 respondent is in no position to question the title of Panna Lal, as vendor in document Ex. RW 4/1 in as much as his own witnesses RW1, RW2, RW3 and RW4 have deposed about the property being earlier owned by Panna Lal and he having sold it to the petitioner. The document is to be read as a whole. Inferences are not to be drawn by reading sentences or expressions in isolation. The document clearly stipulates that the vendor had thereby sold, transferred and conveyed the title of the plot of land in favour of the vendee, i.e. the petitioner, for consideration.
75.The original sale deed has not been produced. There is a valid explanation given by AW1 that it had been destroyed in fire in 1965. His claim to that effect has not been refuted. If the entire consideration had not been paid, it was for the vendor to raise issue in that regard. Respondent no.1 being a stranger has no locus to raise questions on that score. It is not correct, in these circumstances, to describe the sale deed RW 4/1 as merely an agreement to sell. In fact, such an argument runs counter to the own case set up by the respondent no.1 himself in the pleadings wherein he would refer to it, and also in the course of evidence, as the original sale deed, which it is not.
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76.In the above context, the counsel for the respondent no.1 also referred to two applications moved by the appellant during the proceedings before the Additional Rent Controller after the written statement had been filed by respondent no.1 on 19.11.1990. The appellant had moved an application under Order 8 Rule 1 and Order 11 Rule 14 & 15 CPC seeking a direction to respondent no.1 for "production of original sale deed". The respondent no.1 had filed a reply to the said application on 27.03.1991 stating, interalia, that he would file the document and list of reliance at or before filing of the replication. On this, the learned Additional Rent Controller issued a direction on 25.07.1991 calling upon the respondent no.1 to file the document within 10 days. The respondent no.1 failed to comply with the said directions. The appellant, therefore, moved another application under Section 151 CPC on 04.04.1992 seeking a fresh direction to the respondent no.1 referring in this context to order dated 25.07.1991.
77.The argument of the respondent no.1 based on the above mentioned applications of the appellant is that the very fact that he was demanding that the respondent no.1 be called upon to produce the original sale deed shows that the original sale deed ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 40 of 46 had been handed over the respondent no.1. I am afraid such inferences do not arise from these facts and the argument is wholly without substance. It is the respondent no.1 who claimed that he had received from the petitioner the original sale deed pursuant to the decision taken in Panchayat. Therefore, it was his responsibility to account for the original sale deed. As far as the petitioner is concerned, he stated on oath without it being refuted that the original title deed had been destroyed in fire incident. In the name of producing original sale deed, the respondent no.1, came up with document Ex. RW 4/1 describing it as the original sale deed. The document is in fact an attested copy obtained from the office of Sub Registrar on 28.11.1969 and is not the original sale deed. There is no adverse effect against the case of the petitioner on account of above mentioned applications. On the contrary, noncompliance exposes the hollowness of the claim of the respondent no.1 of being in possession of original title deed.
78.Respondent no.1 himself has produced Ex. RW 4/1 as the sale deed of the property in question executed on 11.01.1961 by Panna Lal in favour of the petitioner. There is no title deed in respect of the property in question produced by or on behalf of ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 41 of 46 respondent no.1 as a document in his favour. The witnesses produced by respondent no.1 himself, particularly RW1, RW2 and RW3 themselves admitted that the property was originally owned by Panna Lal and further that Panna Lal had sold the said property through a sale deed in favour of the petitioner. The property was assessed to house tax in favour of the petitioner as has been further shown by document Ex. PW 1/6.
79. Respondent no.1, during his statement, did say that originally he was owner of the suit property and had only allowed his nephew Panna Lal to reside there. He also spoke about fraudulent sale of the property to the petitioner by Panna Lal, But then, it is clear from his evidence that he did not lodge any case, civil or criminal, to allege fraud on the part of Panna Lal or to legally claim the property in question from the petitioner. Under crossexamination, he admitted that he had been inducted as tenant in the suit premises by the petitioner. In the written statement he had denied having been served with the legal notice dated 12.04.1990. Under crossexamination, he exposed the falsehood of the said stand by conceding that he had received the notice corresponding to copy Ex. AW 1/2 and further that he had not given any reply resisting the claim of the ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 42 of 46 petitioner in the said notice.
80. The legal notice had made serious assertions respecting the title of the petitioner in the suit property and the status of respondent no.1 being that of a tenant (in its respect) one who had not only fallen into arrears in payment of rent but one who had sublet certain portions in favour of strangers. The respondent no.1 failed to respond to the said notice. He came with a false reply in the pleadings denying having even received the notice. He admitted the receipt and also his failure to send a reply only at the stage of evidence. This is bound to result in an adverse inference being raised against him. [Kalu Ram Vs. Sita Ram (1980 RLR Note 44)].
81.In the above facts and circumstances, there is no credible proof of the right, title or interest of respondent no.1 in the suit property beyond that of a person in occupation.
82.Given the facts and circumstances of the case in general and particularly on account of omission on his part to respond to the legal notice Ex. AW 1/2, his status cannot be taken as anything but that of a tenant visavis the suit property. The claim of ownership on the basis of title and claim by way of averse possession are inconsistent pleas. In the face of evidence as led, ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 43 of 46 the claim of adverse possession cannot be accepted because of the legal title of the petitioner proved through the evidence and certified copy of the sale deed produced by respondent no.1 himself. Thus, the plea of adverse possession must be thrown out as untenable. Karnataka Board of Wakf Vs. Govt. of India & others [(2004) 10 SCC 779] and Rama Kanta Jain Vs. M. S. Jain [1999(50) DRJ 232].
83.The endorsement dated 21.11.1971 on the said certified copy vide Ex. PW 2/1 on the reverse of the certified copy RW 4/1 of the sale deed has not been properly proved. The witnesses would describe this document as the original sale deed. The document is actually not the original sale deed. Though evidence led by respondent would claim that the endorsement was authenticated by respondent no.1 under his signatures at point "A", this document along with receipt Ex. RW 5/1 were not even put to AW1 during his crossexamination. The endorsement Ex. RW 2/1 would not refer to any consideration being paid in lieu of the purported handing over of the property by the petitioner in favour of respondent no.1. In the pleadings, the respondent no.1 would claim at one stage that Panchayat had reached the decision on 21.11.1971. At another ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 44 of 46 stage in the pleadings he would refer the Panchayat decisions of 27.11.1971. In the evidence, it would be claimed that the payment was made on the same date when the transaction took place before the Panchayat. In these circumstances, the document Ex. RW 2/A cannot be reconciled with document Ex. RW 5/1. Even otherwise, the evidence respecting the receipt Ex. RW 5/1 is contradictory as PW5 during his statement would claim that he had made payment of Rs.1000/ to the father of the petitioner which is not borne out from any document.
84.Even if the endorsement on the certified copy of the sale deed is assumed as one recorded at the instance of, or authenticated by, the petitioner before the Panchayat, it would not result in the title to the property passing on to the respondent no.1. The right, title or interest in an immovable property cannot be transferred merely by such endorsement. There is no execution or registration of any document transferring the property in favour of respondent no.1.
85. In the result the impugned order must be set aisde and the appeal allowed. Ordered accordingly.
86.The appellant is, thus, found to have brought home his case for ARCT No. 28/2010 Angoori Devi & Anr. Vs. Sukh Lal (deceased) & anr. 45 of 46 eviction on both grounds agitated before the Rent Controller. The eviction order is, accordingly passed in favour of the petitioner and against respondent no.1 directing him to hand over vacant peaceful possession of property described as 172, Katwaria Sarai, New Delhi comprising four rooms, kitchen, bathroom, lavatory, courtyards, stairs on the ground floor, two rooms and chhaja on the first floor covering original area of 30"
x 20", (2" x 4" being part of the street having been added afterwards), as shown in red colour in site plan Ex. AW 1/1.
87.The trial court record be returned with copy of this judgment.
88.File of the appeal be consigned to Record Room. Announced in open Court today on this 12th day of October, 2011 (R.K. GAUBA) District Judge (South) - cum -
Additional Rent Control Tribunal, Saket, New Delhi.
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