Delhi District Court
Smt. Krishna Kumari vs Shri Hardwari Lal on 12 March, 2008
IN THE COURT OF MANOJ JAIN: ADDL. DISTRICT JUDGE:
DELHI
RCA No. 39/05 arising out of Suit No.36/02
And
RCA No.40/05arising out of Suit No.37/02
In Re
Smt. Krishna Kumari
W/o Shri Puran Chand,
R/o 21, Chitra Vihar,
New Delhi.
.....Appellant/defendant
Versus
Shri Hardwari Lal,
S/o Shri Nand Kishore,
R/o 3599, Main Road,
Chawri Bazar,
Delhi.
.....Respondent/plaintiff
Date of filing: :27.04.2005
Date on which judgment has been reserved :11.02.2008
Date of decision :12.03.2008
JUDGMENT
1 These are two connected appeals. Parties are the same and the contentions raised in both the appeals are also virtually identical. Moreover, even during the trial, as observed in order dated 26.11.2001, both the cases were consolidated for the purposes of evidence and Suit No. 36/02 had been treated as ''main suit''. In view of aforesaid, I deem it 1 appropriate to dispose of both the appeals by this common judgment. 2 For the sake of convenience, I would be referring to Suit No. 36/02 as ''first case'' and Suit No. 37/02 as ''second case'' and I would also be referring to parties as per their nomenclature in the suit. 3 Plaintiff has claimed himself to be the owner of plot No. 24 to 27, H Block, Laxmi Nagar, Delhi. He had purchased them vide registered sale deed dated 06.02.1959. First suit pertains to plot No.27 only. According to plaintiff, the area was uninhabited and desolate at the time of purchase of the property and. In the year 1975, the boundary walls were constructed around all the four plots. In the year 1985, the plaintiff came to know that defendant had encroached upon and taken illegal possession of plot No. H 27 measuring 200 sq. yards and had also raised some illegal kachha construction by raising tin roofed room. Defendant was asked to vacate the plot but she refused to hand over the possession of the plot No. H 27 to the plaintiff. It would be pertinent to mention that earlier suit was filed immediately in the year 1985 itself in District Courts, Delhi and the same was registered as Suit No. 405/85. In such previous suit, defendant had raised objection with respect to the valuation and plaintiff had accordingly withdrawn his such previous suit with the permission of the court to file fresh suit on the same cause of action. Plaintiff accordingly valued the suit as Rs.1,50,000/- for the purposes of court fees and jurisdiction and first case was accordingly filed in the Hon'ble High Court of Delhi, in its original side, on 01.05.1991.
2 4 Defendant resisted the suit and besides raising several legal objections, she claimed that she was owner of the said plot having purchased the same vide duly registered deed dated 03.02.1966. She claimed that she was in lawful possession of the suit plot and denied the title of the plaintiff. She also claimed that the property had been duly mutated in her favour and even the electricity connection was in her own name. She categorically claimed that her possession was legal and authorized. She also took plea of limitation and also asserted that she had become owner by adverse possession as well.
5 Contentions raised in the second case are almost akin, difference being that in the second case, the property in dispute is half portion of plot No. H-26 measuring 100 sq. Yards instead of H-27. Moreover, as far as the second case is concerned, earlier the plaintiff had not filed any suit in the year 1985 with respect to such portion. Such second case had been filed with Ld. District Judge on 12.04.1996 with the assertion that on 12.12.1995, defendant had illegally and unauthorizedly encroached upon half portion of plot No. H-26. In the second case also, defendant has come up with similar contentions and she raised the issue of limitation and has also claimed that she had become owner by adverse possession. She re-asserted her title as per aforesaid sale deed 6 Both the suits were decreed by ld Trial Court vide separate judgments passed on 04.04.2005. Ld. Trial Court held that defendant had 3 failed to show that her possession was hostile to the title of true owner and thus the plea of adverse possession was negated. Issue of valuation and limitation were also answered in favour of the plaintiff and on the basis of the title documents of the plaintiff, he was granted relief of possession and of permanent injunction. Similar findings have been returned by the Ld Trial Court in both the matters and in the second case besides granting decree of possession and injunction, the ld trial court has also passed decree of declaration and damages. Such findings have been assailed in the present appeals.
7 I have heard ld counsels for the parties and given my thoughtful consideration to the authorities cited by them at the bar and also the written submissions placed on record.
8 Shri J.P. Sharma and Sh S.K. Gupta, Advocates have appeared on behalf of appellant and Ms. Uma Aggarwal, Advocate has defended the appeals on behalf of the plaintiff/respondent herein. 9 Shri Sharma has first and foremost contended that the first suit was hopelessly barred by limitation. He has also argued that since the plaintiff had alleged that he was in possession of the suit plot and was subsequently dispossessed, the suit was liable to fall under Article 64 of Limitation Act and in view of the statement made by the plaintiff before the ld Trial Court on 04.09.1995 and in view of the facts on record, plaintiff had failed to prove that the suit had been filed by him within the prescribed 4 period of 12 years reckoned from the date of dispossession. He has also argued that though the previous suit which had been filed in the year 1985 in connection with the first case had been withdrawn by the plaintiff and though the fresh suit had been filed in the year 1991 yet in view of the provision contained in Order 23 Rule 2 CPC, such permission to withdraw the first suit could not have saved the limitation. It has been argued that plaintiff knew about the possession of the defendant since January 1979 and, therefore, the suit filed by him in May 1991 was hopelessly barred by limitation. It has also been argued that plea of adverse possession is not contradictory to the plea of ownership but it has been simply taken as an alternate plea. It has been argued that defendant had been able to substantiate her case as she has able to prove that she was having the possession of the plot since 1966 and, therefore, ld Trial Court could not have decreed the suit. It has also been argued that suit has been grossly under valued. Simultaneously, it was also prayed that the inspection of the plots was very necessary in order to identify the properties properly and application was accordingly moved seeking appointment of Local Commissioner. Contentions in this regard were also heard. 10 Ms. Uma Aggarwal, ld counsel for the plaintiff/respondent has refuted all the aforesaid contentions. She has contended that adverse possession is essentially hostile possession in denial of the title of the true owner and it has come on record that the defendant did not know as to who was the true owner. She has also argued that moreover the plea of ownership by virtue of lawful title and plea of ownership by way of adverse 5 possession are completely contradictory in nature and, therefore, can not be taken up simultaneously. She has also argued that the property was valued properly and appropriately and the suit had been filed within the period of limitation. It has been argued by her that the suit was not based on previous possession and subsequent dispossession. According to her, the suit is based on dispossession as well as basis of title and, therefore, it is Article 65 of Limitation Act which stands attracted and since the defendant had failed to discharge the burden with respect to adverse possession, suits were rightly decreed.
11 I have given my thoughtful consideration to the rival contentions and carefully perused the grounds of appeal, trial court record and the authorities cited at the Bar.
12 Issue of limitation and plea of adverse possession seem to be the most crucial aspect of the matter and, therefore, I would straightaway come to the contentions raised in this regard.
13 Let me see the relevant Articles which govern period of limitation for the purpose of suit for possession.
6
Description of suit Period of Time from which
limitation period begins to
run
Article 64
For possession of immovable Twelve years The date of
property based on previous dispossession.
possession and not on title,
when the plaintiff while in
possession of the property
has been dispossessed.
Article 65
For possession of
immovable property or any Twelve years
interest therein based on When the
title. possession of the
defendant becomes
adverse to the
plaintiff.
14 Whenever anyone seeks possession, there can be following
situations:
(i) Possession is sought only on the
basis of previous possession and
alleged dispossession and not on
title. In such a situation, suit is
primarily based on possessory title.
Such suit is not based on title at all.
(ii) Suit is based on title only.
(iii) Suit is based on title as well as
previous possession & alleged
dispossession.
15 As far as the first situation is concerned, there is no dispute
whatsoever that it squarely falls within the scope and ambit of Article 64 of Limitation Act. Time begins to run from the date of alleged dispossession 7 and the period of limitation is 12 years. Similarly, as far as second situation is concerned, it is Article 65 which comes into play and the period of limitation is 12 years which begins to run when the possession of the defendant becomes adverse to the plaintiff.
16 However, it is the third situation that is little bit thought- provoking. It postulates the title as well as previous possession. It is to be seen as to what would be the period of limitation in case plaintiff comes up with a plea that he had a clear title over the suit property and also simultaneously alleges that previously he was in possession of such suit property and lost such possession.
17 According to learned counsel for appellant, in case plaintiff alleges the title as well as previous possession, situation has to fall within the scope of Article 64 of Limitation Act and Article 65 does not stand attracted at all. In this regard, he has placed his strong reliance upon RAMAIAH V. N. NARAYANA REDDY AIR 2004 SUPREME COURT 4261 wherein it has been held as under:-
''Art. 64 of the Limitation Act, 1963 (Art. 142 of the Limitation Act, 1908) is restricted to suits for possession on dispossession or discontinuance of possession. In order to bring a suit within the purview of that article, it must be shown that the suit is in terms as well as in substance based on the allegation of the plaintiff having been in possession and having subsequently lost the possession either by dispossession or by discontinuance. Art. 65 of the Limitation Act, 1963 (Art. 144 of the Limitation Act, 1908) on the other hand is a residuary article applying to 8 suits for possession not otherwise provided for. Suits based on plaintiffs' title in which there is no allegation of prior possession and subsequent dispossession alone can fall within Art. 65. The question whether the article of limitation applicable to a particular suit is Art. 64 or Art. 65 has to be decided by reference to pleadings.
18 Besides aforesaid case of Ramaiah, learned counsel for appellant has also placed his reliance upon several other authorities. One such judgment is of our own High Court cited as Sushila Kumari v Rama Store 120 (2005) DLT 479. In the aforesaid judgment also, Hon'ble High Court of Delhi placed reliance upon aforesaid judgment of Ramaiah. 19 On the strength of authorities viz Ambika Prasad Thakur & others etc. v Ram Ekbal Rai (dead) by his legal representatives and others etc. AIR 1966 Supreme Court 605, Gumani Puntia v Khetrabasi Puntia and others AIR 1954 Orissa 189 & Karuthayaa Thevar (died) & others v Karuthayya Thevar and others AIR 1954 Madras 797 , it has been claimed that if plaintiff alleges possession and dispossession then plaintiff is required to establish his possession within 12 years of the suit. It has been argued on that the primary burden is on plaintiff to show that he was in possession of the suit property within 12 years of the commencement of the suit. It has also been argued that even if defendants are not able to show continuous possession within 12 years prior to the date of suit, such fact only dis-entitles the defendants to acquisition of title by adverse possession but that does not absolve the plaintiff from showing that 9 they were in possession within the period of 12 years.
20 Strong reliance has also been placed upon one judgment of Punjab & Haryana High Court cited as Lila Ram v Mohar Chand AIR 1968 Punjab 60 wherein it has been observed that if plaintiff bases his claim on title and also on alleged previous possession and subsequent dispossession, plaintiff is required to show that he was in possession of the property within 12 years of the institution of the suit. 21 Sh. Sharma has accordingly argued that in the present case, plaintiff has pleaded previous possession and dispossession and simultaneously has pleaded title and such a situation is covered under Article 64 of Limitation Act only and since plaintiff has failed to place on record sufficient material in order to show that plaintiff was in possession of suit properties within 12 years of the institution of the case, suit was hopelessly barred by limitation.
22 I have carefully considered the aforesaid judgments and also the legal provisions. Article 64 of Limitation Act clearly provides that for possession of immovable property based on previous possession and not on title, period of limitation is 12 years from the date of dispossession. Thus according to Article 64 of Limitation Act when any plaintiff pleads his case on the basis of previous possession only and does not set up title as a part of his claim, then suit attracts applicability of Article 64 of Limitation Act. Undoubtedly, in the aforesaid judgment of Ramaiah Hon'ble Supreme 10 Court has observed that suit based on title in which there was no allegation of prior possession and subsequent dispossession was liable to fall within Article 65 of Limitation Act. Facts in that case were, however, different. In that case, plaintiff had filed a suit for possession and injunction claiming himself to be the owner of entire land and he also prayed that defendant be restrained from interfering with his entire possession. Plaintiff was held owner of part land but since he was found in possession of land in excess to what he was entitled to, his adversary had been granted liberty to take steps to recover such excess portion. Such defendant then filed a fresh suit which was held barred by limitation as filed much beyond 12 years. Facts in that case were thus different and in that case it was also held that he had suppressed material facts and had made admission in previous litigation. Moreover, Hon'ble Supreme Court had, in the same judgment, also observed that the question of applicability of Article 64 or Article 65 was to be decided by reference to pleadings. Thus, there cannot be any strait- jacket formula and it is the pleadings or the stance taken by the parties which seem to be the real deciding factor.
23 Moreover, in the case of DEVA V. SAJJAN KUMAR AIR 2003 SUPREME COURT 3907, Hon'ble Supreme Court has, in no uncertain terms held as under:-
'The plaintiff suit is not merely based on his prior possession and subsequent dispossession but also on the basis of his title to Survey No.
452. The limitation for such a suit is governed by Article 65 of the Limitation Act of 1963. The plaintiff's title over the encroached land could not get extinguished unless the defendant had 11 prescribed title by remaining in adverse possession for a continuous period of 12 years.'
24 Counsel for respondent has also placed reliance on SAROOP SINGH VS. BANTO & ORS. AIR 2005 SC 4407. In that case, it was observed as under:
''The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 & 65 of the Limitation Act, 1963. In the instant case, plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant-Appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred.
In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak and Others Vs. Somnath Muljibhai Nayak and Others (2004) 3 SCC 376).
Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the Appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mdl. Mohammad Ali (Dead) By LRs. Vs. Jagdish Kalita and Others, (2004) 1 SCC 271, para 21).12
Yet again in Karnataka Board of Wakf Vs. Government of India and Others (2004) 10 SCC 799, it was observed:
Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all fact necessary to establish his adverse possession.''
25 In the case of AIR 1976 MADRAS 124 BHAGAVATHY Vs. SAVARIMUTHU it was observed that Art.65 related to suits for possession based on title. In such a case period of limitation was 12 years when the possession of the defendant became adverse to the plaintiff. If in a suit falling under Art.65, the defendant wanted to defeat rights of the plaintiff, he had to establish his adverse possession for a period of 12 years which would have the effect of extinguishing the title of the owner. It was further held that if defendant failed to do so then the plaintiff could not be non-suited merely because he was not able to prove possession within 12 years. In the case of a suit for possession based on title the plaintiff had no longer to prove that he was in possession of the property for a period of 12 13 years. It was for the defendant to establish that his possession had been adverse for the requisite period of 12 years.
26 In view of aforesaid judgments and also keeping in mind the stand taken in the pleadings, it becomes apparent that plaintiff in the present case has come up with both pleas i.e. plea of title and plea of previous possession and in such a situation, it cannot be said that Article 64 of Limitation Act is attracted. To me it appears that present situation falls within Article 65 of Limitation Act. As discussed above, in Article 64 of Limitation Act, question of title does not come into play at all. Once, Article 65 of Limitation Act is applied then plaintiffs are only required to prove the title. It is for the defendant to show that she had perfected her title by adverse possession by remaining in possession for a period of continuous 12 years or more preceding the filing of the suit. In such a situation, plaintiff is not required to prove his possession within the aforesaid period of 12 years preceding filing of the suit. Once any such defendant fails to discharge such onus then plaintiff is entitled to decree of possession on the basis of title deeds irrespective of the fact whether such plaintiff was in possession for the previous period of 12 years or not. 27 Both the parties are driving their respective title from different persons. According to the plaintiff, he had purchased the suit property from M/s Delhi Adarsh Financiers Pvt. Ltd. through its Chairman Sh. Vidya Prakash Sethi in 1959 whereas according to defendant, she had purchased the property in the year 1966 from one Sh. Matadeen. 14 28 It would be also, however, curious as to how properties have been described in both the sale deeds. In the sale deed in favour of plaintiff, properties have been described as a plot ad-measuring 800 square yards, plot no. 24, 25, 26 & 27, Block No. H, situated at Khasra No. 68, Colony Laxmi Nagar, bounded area Shakkar Pur and boundaries were mentioned as under:-
East : Road 100'
West : Government Way
North : Plot No. 23
South : Plot No. 28
29 There are two sale deeds in favour of Smt. Krishna Kumari and
in the first sale deed, property has been mentioned as a piece of land measuring 200 square yards out of plot nos. 12 & 13 comprising in khasra no. 65 situated at Village Shakkarpur Khas, Gulshan Park, Block A, bounded as under:
East : Road
West : Road 33'
North : Plot No. 12 of Brindi Devi
North : Remaining Portion of Road No. 13.
30 In the second sale deed, a piece of land measuring 76 square
yards, out of plot no. 13, comprising in khasra no. 65, Village Shakkarpur Khas, Gulshan Park, Block A, Shahdara, Delhi and the boundaries were 15 shown as under:
East : Road
West : Road 33'
North : Remaining portion of Plot No. 13
South : Land of others
31 Indisputably, in the suits, plaintiff had described property as
per description given in the sale deed in her favour. However, in the written statement, defendant claimed that she was in lawful use of suit property. In the first case, possession has been prayed with respect to property bearing no. H-27 and in the written statement in Para-10, defendant has simply claimed that she was in exclusive possession of plot in question i.e. H-27, Laxmi Nagar, Delhi and had become the owner by adverse possession. She also relied on her title deeds but it was not clarified in the written statement as to how she had reconciled description of the property as given in the title deed in her favour with plot no. H-27. Blocks are different and even khasra nos. are different and properties have been described completely differently. According to the appellant, property when purchased was not known as Laxmi Nagar at all and at that time it was only a property situated in Village Shakkarpur Khas, Gulshan Park, Block-A. In the second case also, possession had been prayed for half portion of plot bearing no. H-26, Laxmi Nagar but when written statement was filed, it was claimed that defendant was lawful owner and it was in possession of plot no. H-27. Second case is with respect H-26 and no H.
27. According to the defendant, however, she was in possession of plot no. 16 H-27 and the property which had been described in the second case also fell in plot no. H-27. In witness box, however, attorney of defendant deposed that he could not say whether numbers H-23 to H-28 were in existence in 1959 or not. He also claimed that he could not say whether suit land fell in Khasra No. 68.
32 First case was filed by the plaintiff in the year 1991. However, as I have already noticed, even prior to that plaintiff had filed one suit in 1985 and he had withdrawn the same with the permission to file a fresh one. Said suit had been withdrawn mainly on the ground of valuation and jurisdiction. Order 23 Rule 2 CPC reads as under:
'Limitation law not affected by first suit- In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.'
33 Such ground is also contemplated by Section 14 (1) of Limitation Act and, therefore, as per aforesaid Section of Limitation Act, the time spent for prosecuting such previous suit can be excluded. Section 14 reads as under:-
"14. Exclusion of time of proceeding bona fide in court without jurisdiction- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is 17 unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted on the ground that the first suit must fail by reasons of a defect in the jurisdiction of the court or other cause of a like nature."
34 Thus, defendant cannot be permitted to shy away from said provision of Limitation Act. O.23 R.2 CPC can not be read in isolation at all and has to be read in conjunction with special statute governing limitation 35 In the suit filed in the year 1985, plaintiff had claimed that defendant Krishna Kumari had illegally encroached upon plot no. 27 about 5-6 years ago. Such previous suit was filed on 20.04.1985 which means that defendant had allegedly encroached in 1979/1980. In the first case, statement of plaintiff Hardwari Lal was recorded in the Court on 04.09.95 wherein he claimed that he remained in possession of the suit property for a period of 5-6 years after he purchased the same in 1959. He also claimed that he could not say as to who remained in the property afterwards but 18 came to know about 8 to 9 years back that defendant was in possession. First case was filed in the Court on 01.05.1991.
36 Plea of adverse possession has been taken by the defendant and it is for the defendant to establish that she was in possession for a period of 12 years or more preceding the filing of the suit. Adverse possession means hostile possession. If such adverse possessor does not know as to who is the true owner then her such possession cannot be said to be adverse possession in the eyes of law. Defendant Krishna Kumari has not chosen to grace the witness box and she has rather spoken through her husband Sh. Puran Chand. I have seen the testimony of Sh. Puran Chand and he deposed before the Court that they had seen the plaintiff for the first time only in the Court when the suit was filed in the year 1991. In his cross- examination, he also deposed that plaintiff was neither known to him nor his wife in the year 1985. Even in written statement in first case, defendant claimed that she had never seen the plaintiff till then. 37 In the case of Deva (supra), it was also observed that mere long possession of defendant for a period of more than 12 years without intention to possess suit land adversely to title of plaintiff and to latter's knowledge could not result in acquisition of title by defendant. In that case defendant in his deposition admitted that dispute of encroachment concerning suit portion came to his knowledge only after filing of the suit. It was observed that such deposition did not make out a case in his favour of having acquired title by adverse possession as animus to hold the land 19 adversely to the title of the true owner could be said to have started only when the defendant derived knowledge that his possession over the suit land had been alleged to be an act of encroachment on plaintiff's survey number. In the present case also, defendant's attorney deposed that they came to know about the plaintiff only after filing of the suit. In such a situation, defendant can not claim plea of adverse possession since she did not know the true owner at all these alleged years.
38 In the case of "Rama Kanta Jain v. M. S. Jain" AIR 1999 DELHI 281, it was observed by Hon'ble Delhi High Court that where in a suit for possession of property, the defendant claimed himself to be the owner in possession over disputed property on the ground that he had purchased the same, the alternative plea by the defendant that he had perfected his title by adverse possession was not liable to be allowed. A person who traced his possession to a lawful title could never become an owner by adverse possession. Admittedly, adverse possession means a hostile assertion which is expressly and impliedly in denial of the title of the true owner. Thus the defendants are not permitted to blow hot and cold in the same breath. The mere fact that the defendants have come forward with a plea of adverse possession, means that they admit the plaintiff to be the true owner. For a plea of ownership on the basis of adverse possession the first and the foremost condition is that the property must belong to someone else other than the person pleading his title on the basis of adverse possession, such defences would be irreconcilable and mutually destructive and inconsistent with one another.
20 39 Viewed from any angle, it becomes apparent that defendant had failed to discharge the onus. Descriptions of properties given in her deeds are different. I do not foresee any requirement of getting the plots inspected through local commissioner either. Application moved in this regard is devoid of merit. Defendant was blissfully unaware as to who was the true owner and in such a scenario, she can not claim ownership by adverse possession more so when she has chosen not to depose herself. No evidence has been brought which may show that suit was grossly undervalued. Moreover, as far as first case is concerned, same was withdrawn solely due to said reason and had been filed before the Hon'ble High Court in its original side and the defect stood removed. As already noticed above, in 1992, the suit had been filed in High Court which had clear cut jurisdiction at that time as it could have entertained any suit valued for more than Rs one lac and simply because due to change in pecuniary jurisdiction, such suit was transferred to District Court does not mean that defendant can re- agitate same issue all over again. Moreover, the words "unless the over- valuation or under valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits" in S. 11 Suits Valuation Act clearly show the decrees passed in such cases are liable to be interfered with in an appellate court, not in all cases and as a matter of course, but only if prejudice such as is mentioned in the Section results. The prejudice on the merits contemplated by S. 11 must be directly attributable to over valuation or under-valuation. Any alleged error in a finding of fact reached on a consideration of the evidence cannot possibly be said to have been caused 21 by over-valuation or under-valuation and cannot, therefore, be held to be prejudicial within the meaning of that section.
40 In view of aforesaid discussions, I do not find any merit in the appeals. Both the appeals are accordingly dismissed. A copy of this judgment be placed in each appeal files. Decree-sheets be prepared accordingly. A copy of this judgment be also sent to learned trial court along with trial court record.
41 Appeal files be consigned to record room.
Announced in the open Court On this 12th day of March, 2008.
(MANOJ JAIN) ADDL. DISTRICT JUDGE: DELHI 22