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Shiv Prakash vs Mool Chand & Ors on 15 February, 2022

Author: Prathiba M. Singh

Bench: Prathiba M. Singh

                                                           Signature Not Verified
                                                           Digitally Signed
                                                           By:DEVANSHU JOSHI
                                                           Signing Date:18.02.2022
                                                           02:01:29


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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                            RSA 173/2017
       SHIV PRAKASH                              ..... Appellant
                      Through: Mr. L.K. Singh, Advocate.
                      versus
       MOOL CHAND & ORS                          ..... Respondents
                      Through: Mr.      R.K.   Shukla,     Advocate.
                                  (M:9250746530)
       CORAM:
       JUSTICE PRATHIBA M. SINGH
                ORDER

% 15.02.2022

1. This hearing has been done through video conferencing.

2. The present second appeal arises out of a suit filed by the Petitioner/Plaintiff- Sh. Shiv Prakash (hereinafter "Plaintiff") against the Respondent No.1/Defendant No.1- Mool Chand (hereinafter "Defendant No.1"). Defendant No.1 is the only contesting Defendant and the other four Respondents/Defendants are occupants of the property-1 Bigha 4 Biswas comprising in Khasra No.580, Karkardooma, Delhi (hereinafter "suit property"). The case of the Plaintiff is that Plaintiff's mother had appointed Defendant No.1 as a Pairokar for managing the affairs of the suit property and collecting rent from the tenants. However, Defendant No.1 became dishonest and started challenging the rights of the Plaintiff & the Plaintiff's mother itself. The Plaintiff accordingly sought the following reliefs:

"a) a decree of declaration thereby declaring that the defendant No.1 was only managing the suit property i.e. 1 Bigha 4 Biswas comprising in Khasra No.580, Karkardooma, Delhi on behalf of the plaintiff and was/is having no right, title or interest whatsoever in the suit property of his own:

b) a preliminary decree for rendition of accounts against defendant No.1 thereby directing the defendant No.1 to give a complete and detailed account of all the rents/ receipts made by him by way of letting out different portions of the suit premises from time to time to various tenants including defendants 2 to 5 herein and on such rendition, pass final decree for the balance unpaid amount in favour of the plaintiff and against defendant No.1.

c) a decree of permanent injunction in favour of plaintiff and against the defendants thereby restraining the defendant No.1 from realising the rent of the different portions of the property in question comprised in Khasra No.580, Karkardooma, Delhi which has been let out by him to defendants 2 to 5 herein and further the defendants 2 to 5 herein and further the defendants 2 to 5 may be restrained from paying the rent of their respective portions to defendant No.1 in future and they be directed to pay the same to the plaintiff directly;

d) a decree of mandatory injunction thereby the defendant 2 to 5 may be directed by way of mandate to start paying rent of their respective portions in the suit premises i.e. 580, Karkardooma, Delhi to the plaintiff directly.

e) costs of the suit be also awarded in favour of the plaintiff and against the defendant No.1.

f) such other or further relief as this Hon'ble Court may deem fit and proper, be as well, granted."

3. The Trial Court vide judgment dated 12th October 2011 in CS No. 754/2006 titled Shiv Prakash v. Mool Chand held that the Plaintiff had not discharged the burden under issue no.5 of proving that the Defendant No.1 was Pairokar of the Plaintiff and has, therefore, rejected the reliefs sought by the Plaintiff. The Appellate Court has also upheld the judgment of the Trial Court vide order dated 23rd March 2017 in RCA- 98/2016 titled Shiv RSA 173/2017 Page 2 of 4 Signature Not Verified Digitally Signed By:DEVANSHU JOSHI Signing Date:18.02.2022 02:01:29 Prakash v. Mool Chand.

4. It is submitted by Mr. L.K. Singh, ld. Counsel for the Plaintiff, that the ground on which the Appellate Court has non-suited the Plaintiff is that the Plaintiff has sought the relief of declaration, and the suit property was acquired in 1975 by the Government. Thus, the Plaintiff does not have any title or interest in the suit property. He submits that this issue of acquisition of the suit property by the Government would not affect the private lis between the Plaintiff and the Defendant No.1 inasmuch as the Government has not taken possession of the land in question. Also, the acquisition cannot be to the advantage of the Defendant who is the Pairokar appointed by the mother of the Plaintiff and not to the actual owner i.e., the Plaintiff.

5. On the other hand, Mr. Shukla, ld. Counsel appearing for the Defendant No.1 submits that the Plaintiff did not lead any evidence before the Trial Court to establish that the Defendant No.1 was appointed as Pairokar. Therefore, the Trial Court denied the relief sought in the plaint.

6. A perusal of the judgment of the Trial Court and the Appellate Court shows that there is a clear question of law that arises in the case. In a suit of this nature between two private parties, the question has to be considered by the Court on the basis of preponderance of probabilities in the lis between the parties. The Trial Court's decision that the Plaintiff failed to prove that Defendant No.1 is Pairokar would also require to be looked into inasmuch as the land is a precious land over which the Plaintiff claims that the Plaintiff's mother had executed the power of attorney in favour of Defendant No.1. However, it is the Defendant No.1's case that no evidence was led by the Plaintiff to this effect.

7. It must also be noted that Plaintiff and Defendant No.1 are related.

Defendant No.1 was the cousin brother of the Plaintiff's mother. Thus, the issues arising in the present appeal are required to be considered.

8. Accordingly, the following substantial questions of law are framed in the matter:

i) Whether in a lis between private parties, can the relief be denied merely on the ground that the land was an acquired land?

ii) Whether the Plaintiff had established on record that the Defendant No.1 was a Pairokar and if so, whether the Plaintiff is entitled to relief on the preponderance of probabilities?

9. List this matter for hearing on 26th July, 2022.

10. In the meantime, the Defendant No.1 shall continue to maintain accounts of all the earnings from the suit property. The said accounts shall be filed before this Court on a quarterly basis.

11. Parties are permitted to file synopsis and judgments they wish to rely upon.

12. Let the record of CS No. 754/2006 titled Shiv Prakash v. Mool Chand before the Senior Civil Judge-cum-Rent Controller (NE) Karkardooma Courts, Delhi and RCA No. 98/2016 titled Shiv Prakash v. Mool Chand before ADJ-02/Shahdra/Karkardooma Courts/New Delhi be requisitioned before the next date of hearing.

PRATHIBA M. SINGH, J.

FEBRUARY 15, 2022 /Rahul/SK RSA 173/2017 Page 4 of 4