Delhi District Court
Lokesh vs Rajbir Singh on 16 January, 2023
IN THE COURT OF MS. MANU VEDWAN,
ADDITIONAL DISTRICT JUDGE-2,
NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI
RCA No. 23/2017
CNR No. DLNE01-005691-2016
Shiv Kumar
(Represented through its LRs)
1. Lokesh
W/o Late Shiv Kumar
2. Neha
. D/o Late Shiv Kumar
3. Shivani
D/o Late Shiv Kumar
All residents of B-29, Gali No. 10,
Jagatpuri Extension, Delhi. .....Appellants
Versus
Rajbir Singh
S/o Sh. Gayadin
R/o 28, Abadi of F-Block, (Phase-10)
Gali No. 2 opposite Ram Leela Maidan,
Shiv Vihar, Karawal Nagar,
Delhi. ..... Respondent
Date of filing of the present appeal : 27.02.2017 Date of completion of Final Arguments : 16.01.2023 Date of judgment : 16.01.2023 Final Decision : Dismissed JUDGMENT-in-APPEAL
1. The present appeal has been preferred by the appellant RCA No. 23/2017 Shiv Kumar through its LRs Vs. Rajbir Singh Page No. 1 of 18 (plaintiff, before, the Learned Trial Court) against, the impugned judgment and decree, dated 03.01.2017, titled as Shiv Kumar Vs. Rajbir Singh in Civil Suit no. 4884/2015. The suit of the plaintiff was dismissed by the Court of Learned Judge, ACJ-cum-ARC-cum-ACJ, North East District, Karkardooma Courts, Delhi.
2. For the sake of convenience, parties shall be denoted as they were before Learned Trial Court. Appellant, herein, Sh. Shiv Kumar as plaintiff and respondent Sh. Rajbir Singh shall be referred to as defendant.
3. The brief facts as disclosed in the plaint are that plaintiff is the owner of Plot No. 28, Abadi of F-Block, Phase No. 10, Gali No.2, opposite Ram Leela Maidan, Shiv Vihar, Karawal Nagar, Delhi ad-measuring 228 sq. yards. The abovesaid plot/property was purchased from Sh. Pradeep Kumar vide documents viz. General Power of Attorney, Agreement deed of suit property and receipt of consideration all dated 04.03.1992. It is stated that defendant under some conspiracy with the land grabbers of the area, unauthorizedly occupied 50 sq. yards portion of plot no. 28, belonging to the plaintiff and raised construction over it, without consent of the plaintiff. The act was done by the defendant about three years before the filing of present suit. It is further stated that the possession of the defendant over the plot of land in question is illegal and unauthorized. Therefore, it is prayed that the defendant be directed to hand over back the possession of the occupied portion of the plot alongwith mesne profits to the plaintiff.
4. Defendant, contested the suit by filing his written statement. Defendant in his written statement stated that plaintiff was never in possession of the suit property and the documents relied upon by the RCA No. 23/2017 Shiv Kumar through its LRs Vs. Rajbir Singh Page No. 2 of 18 plaintiff do not create any right, title or interest in the suit property. Defendant has specifically stressed that he had purchased the suit property vide valid documents including General Power of Attorney, Agreement and Receipt. Defendant has also stated that plaintiff had filed the wrong suit by not asking for the relief of declaration as the title itself is disputed. Defendant has also stated that it is evident from the contents of the plaint itself that Pradeep Kumar had become the owner of 378 sq. yards out of the Khasra No. 36/9/1 bearing plot no. 28, Village Karawal Nagar, Illaqa Shahdara, Delhi. Subsequently, Pradeep Kumar had sold 150 sq. yards of the said property to Nagender Singh on 03.03.1992. It is further stated by the defendant that the Nagender Singh had sold 100 sq. yards of the property to Mangal Singh and Rajender Singh on 27.05.1996. Subsequently, Rajender Singh had transferred his 50 sq. yards portion in the suit property in the name of his wife Smt. Devi on 27.12.1999 by virtue of General Power of Attorney, Agreement, Receipt etc which was later on purchased by the defendant on 10.05.2000, based on such like documents. Defendant after purchasing the property, took its possession and had got it constructed. It is therefore, requested by the defendant that the suit of the plaintiff is devoid of merits and be dismissed with costs.
5. Vide order dated 07.07.2009, the following issues were framed:-
1. Whether plaintiff is owner of the property bearing no.
Plot No. 28, Abadi of F-Block (Phase-10), Gali No. 2, Opposite Ram Leela Maidan, Shiv Vihar, Karawal Nagar, Delhi? OPP
2. Whether defendant has acquired valid title of above mentioned plot? OPD
3. Whether plaintiff is entitled for mesne profits, as claimed? OPP RCA No. 23/2017 Shiv Kumar through its LRs Vs. Rajbir Singh Page No. 3 of 18
4. Whether plaintiff is entitled for decree of mandatory injunction, as prayed in prayer clause of the plaint? OPP.
5. Relief.
6. Plaintiff in order to prove his case examined four witnesses including himself.
Sh. OPS Tarar was examined as PW1. He tendered his evidence by way of affidavit Ex.PW1/A and relied upon the documents i.e. SPA executed by plaintiff in his favour as Ex.PW1/1, GPA dated 04.03.1992 pertaining to the suit property as Ex.PW1/2, Agreement deed of suit property in question as Ex.PW1/3, receipt of consideration of suit property as Ex.PW1/4, GPA, Agreement to Sell and receipt of consideration with respect to the previous chain of title documents of suit property as Ex.PW1/5 to Ex.PW1/7 respectively which were handed over by previous owner Pradeep Kumar to plaintiff, GPA executed by Sikandar Lal with respect to 150 sq. yards as Ex.PW1/8 to Ex.PW1/10 which were executed in favour of Ved Prakash with respect to 228 sq. yards of plot in question and also other title documents as Ex.PW1/11 to Ex.PW1/13 with respect to 150 sq. yards of plot in question executed by Sikandar Lal in favour of Ram Pratap, site plan of property as Ex.PW1/14, legal notice as Ex.PW1/15, registered AD/postal receipt as Ex.PW1/16, envelope of postal department with remark refusal as Ex.PW1/17, reply by defendant to the legal notice as Ex.PW1/18 and envelope of said reply as Ex.PW1/19.
Ms. Neha was examined as PW2. She tendered her evidence by way of affidavit Ex.P2. She had relied upon the documents already exhibited as Ex.PW1/1 to Ex.PW1/14.
Sh. Pradeep Kumar Gupta was examined as PW3. He deposed that he owned a plot of 378 sq. yards situated in Shiv Vihar, Karawal RCA No. 23/2017 Shiv Kumar through its LRs Vs. Rajbir Singh Page No. 4 of 18 Nagar, Shahdara, Delhi and out of which, he sold 228 sq. yards to Sh. Shiv Kumar and executed the documents in this regard that is General Power of Attorney, Agreement Deed, Receipt of rupees 36,000/-, all dated 04.03.1992 and the same bear his signatures at point A respectively. He further stated he had also handed over the documents in respect of abovesaid plot to Shiv Kumar which are already exhibited as Ex.PW1/5 to Ex.PW1/13. PW3 has also stated that rest of the plot i.e. 150 sq. yards was sold by him to Sh. Nagender Singh.
7. Thereafter, defendant examined three witnesses including himself.
Sh. Ram Dass was examined as DW1. He tendered his evidence by way of affidavit which is Ex.DW1/A. Sh. Ram Gopal was examined as DW2. He tendered his evidence by way of affidavit which is Ex.DW2/A. Defendant himself stepped into the witness box as DW3. He tendered his evidence by way of affidavit which is Ex.DW3/A and relied upon the documents I.e.. General Power of Attorney executed on 27.05.1996 by Devender Singh (running into 2 pages, colly) as Ex.DW3/1, Agreement to Sell between Nagender Singh and Mangal Singh and Rajender Singh (running into 2 pages, colly) as Ex.DW3/2, Affidavit of Sh. Nagender Singh dated 27.05.1996 as Ex.DW3/3 and copy of payment receipt executed by Sh. Nagender Singh on 27.05.1996 as Mark A.
8. Subsequently thereto, the matter was fixed for final arguments which were heard conclusively on 21.11.2016. After, hearing the final arguments, Learned Trial Court came to the conclusion that the suit of plaintiff deserves to be dismissed for the relief claimed in the plaint. Firstly, as the evidence led by the attorney of plaintiff appearing on his RCA No. 23/2017 Shiv Kumar through its LRs Vs. Rajbir Singh Page No. 5 of 18 behalf, and, deposing before the Court as PW1 was not considered tenable keeping in view of the judgment of Janki Vashdeo vs. Indusind Bank Ltd., AIR 2005 SC 439, Secondly, because, of the defective pleadings, of the plaintiff as he had miserably failed to exactly specify the time of construction undertaken by the defendant, after grabbing the suit property, Thirdly, the exact length and width of the plot of the plaintiff as occupied by the defendant was not clear, and, admittedly, no valid recognized site plan of the suit property in question was ever annexed alongwith the other property documents at the time of transfer of property from one party to the another; and Finally, the documents were not proved by the plaintiff in accordance with the provisions of Indian Evidence Act and the best admissible evidence had not been put forward by the plaintiff.
9. The appellant/plaintiff has taken the following grounds for preferring the instant appeal:=
(a) Appellant/plaintiff has raised that the impugned judgment and decree is based on wrong appreciation of oral as well as documentary evidences.
(b) It is specifically stated that the impugned judgment and decree is based upon perverse findings of Learned Trial Court who failed to appreciate the facts that the plaintiff has established and proved the chain of title documents of the property i.e., the plot bearing no. 28, Abadi of F-Block, Phase no. 10, Gali No. 2 opposite Ram Leela Maidan, Shiv Vihar, Karawal Nagar, Delhi-110094.
(c) It is also stated that the Learned Trial Court erred in holding that the Special Power of Attorney holder of plaintiff who appeared in the witness box to prove the case of plaintiff is not a competent witness and that he had no personal knowledge of the facts.
(e) The Learned Trial Court had also failed to consider that RCA No. 23/2017 Shiv Kumar through its LRs Vs. Rajbir Singh Page No. 6 of 18 from the evidences led by the parties of the suit, particularly PW1 Sh. OPS Tarar, PW2 Ms. Neha, PW3 Sh. Pradeep Kumar Gupta and from the testimonies and cross-examination of the defendant's witnesses, it is established and proved by the plaintiff that he is the exclusive owner of the suit property and the defendant has no right, title or interest over the same and the possession of the defendant over the suit property is unauthorized and illegal. Hence, the finding of Learned Trial Court that the plaintiff is not the owner of the property is liable to be set aside.
10. Per contra, it is submitted by the respondent/defendant that the present appeal had been filed by the appellant with the false, fabricated and manipulated grounds and hence, the same is liable to be dismissed. It is also stated that the Learned Trial Court had passed an order in the present case after going through the evidence and documents filed on record as per law. It is also stated that Learned Trial Court has rightly observed that plaintiff has vaguely raised the allegations qua the land grabbing and unauthorized occupation by the defendant without specifying the exact details regarding the sequence of events. It is also stated that appellant/plaintiff must have claimed a relief of declaration in accordance with law/judicial precedents as title to the suit property itself is disputed, but, for the reasons best known to the appellant/plaintiff, he has not done so. It is also stated that the Learned Trial has rightly observed that there is no valid recognized site plan of the suit property in question which was transferred from one party to another during the course of sale/purchase of the suit property. It is stated that the respondent/defendant is the absolute owner and is in possession of the property in question for more than 32 years.
11. I have heard the arguments from both sides on the grounds of RCA No. 23/2017 Shiv Kumar through its LRs Vs. Rajbir Singh Page No. 7 of 18 appeal and perused the impugned judgment as well as evidence adduced by both parties. Written submissions have also been filed on behalf of both the appellant as well as respondent.
It is stated in the written submissions filed on behalf of appellant/plaintiff that the appellant/plaintiff led his piece of evidence in terms of section 5 of Indian Evidence Act on facts in issue and relevant facts by examining witnesses and exhibiting the documents including General Power of Attorney, Agreement, Receipt and previous chain of documents of the suit property. It is further stated that Learned Trial Court instead of appreciating the evidence both oral and documentary rather, made unnecessary observations with respect to form and contents of the plaint. It is further stated that the Learned Trial Court had passed its judgment more on the pleadings rather then on the evidence led by the appellant/plaintiff.
It is further stated that the ratio of Janki Vashdeo vs. Indusind Bank Ltd., AIR 2005 SC 439 was wrongly applied by the Learned Trial Court, while, appreciating the evidence led by the Special Power of Attorney of the plaintiff. It is further stated that even otherwise also, the appreciation of the testimony led by PW1 has not been made in accordance with either Code of Civil Procedure or the Indian Evidence Act. It is further stated that the appellant/plaintiff has fully proved his case and discharged the burden as required under section 101 of the Indian Evidence Act by examining his attorney as well as the remaining witnesses. It is further stated that the respondent/defendant had made contrary claim to the claim of the plaintiff. Defendant must produce the documents showing his clear title which he had failed, therefore, the title of appellant/plaintiff must be accepted. It is further stated that the suit of the appellant/plaintiff has been improperly dismissed, and, that he has through his evidence discharged the burden of proving better title then that RCA No. 23/2017 Shiv Kumar through its LRs Vs. Rajbir Singh Page No. 8 of 18 of the respondent/defendant.
Respondent/defendant had also filed written submissions in which he apart from reiterating, the facts of the case, submitted that the appellant has no locus standi to file the present suit as the property never belonged to the appellant neither he was ever in possession of the same. It is further stressed that the respondent had purchased the suit property based on the valid documents. It is further stated that as title of the property was disputed right after the filing of the written statement therefore, appropriate course for the plaintiff is to file/amend the suit for declaration, so the appeal of appellant/plaintiff be dismissed as it is not in accordance with law.
It is further stated that the appellant/plaintiff has chosen not to examine himself rather sent his attorney. It is further stated that the appellant/plaintiff produced only the photocopied title documents pertaining to the property. It is further stated that the Learned Trial Court after going through all the evidence and material available on record produced by the appellant/plaintiff dismissed his suit and therefore, there is no merit in the present appeal as well.
12. Findings:-
The first ground raised by the appellant/plaintiff is that there is wrong appreciation of oral as well as documentary evidence, including the facts, by the Learned Trial Court, while passing the impugned judgment. No doubt, appreciation of evidence is the backbone of a judgment. Appreciation is basically, the systematic, scientific and methodical evaluation of evidence. As, according to, Benjamin N. Cardozo J. in "The Nature of Judicial Process", a judge is not totally free during the course of appreciation of evidence, instead he has to draw his inspiration from consecrated principles. He is to exercise a discretion informed by RCA No. 23/2017 Shiv Kumar through its LRs Vs. Rajbir Singh Page No. 9 of 18 tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life.
Also, no separate scheme has been provided in the Evidence Act for civil and criminal cases. Long back, Best Justice, in R.V. Badett (1820) 4 B.D. ALD. 95 commented that there is no different between the rules of evidence in civil and criminal cases. If the rules of evidence prescribe the best course to get at truth, they must be and are same in all cases. Though, a civil case can be proved by applying the yardsticks of preponderance of probabilities, while, guilt in a criminal case be proved beyond reasonable doubt. Under section 3 in the Indian Evidence Act, a fact is said to be proved when the Court either believes it to exist or considers it's existence so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that it exits. The belief regarding the existence of a fact thus be founded on a balance of probabilities. The first step in this process is to fix the probabilities, the second to weight them though, the two may often intermingle. As, per Lord Denning, the degree of probability depends on the subject matter with respect to the appreciation of documentary evidence in civil cases. Cardinal principle is that clear and unambiguous words prevail over the intention. Reliance is placed upon Avadh Kishore vs. Ram Gopal AIR 1979 SC 861. Now, in the present case, Learned Trial Court had endeavoured to make detailed analysis/appreciation of each piece of evidence brought forward by the parties and, in that course, final judgment had dedicated paragraphs. Therefore, in totality of circumstances there is no merit in this ground.
The second ground taken by the appellant is that Learned Trial Court erred in holding that Special Power of Attorney holder of the plaintiff is not a competent witness. With, regard to this issue, it is to be noted that despite, there being divergent views with respect to the aspect of RCA No. 23/2017 Shiv Kumar through its LRs Vs. Rajbir Singh Page No. 10 of 18 relevancy of the testimony of Special Power of Attorney, one thing is very clear that the evidence given by the Special Power of Attorney cannot be rejected, merely because he is the father or a relative of plaintiff. Further, no adverse inference can be drawn against the plaintiff on the ground that he had not appeared as a witness in his own case as plaintiff is a master of his case. If an attorney is aware of the facts and can answer the questions of the Court, the attorney cannot be told that he is not a competent witness. The Court may reject that part of his statement which is based on hearsay or which he has no personal knowledge. Reliance is placed upon Om Prakash vs. Inder Kaur 156 (2009) DLT 292.
Also, the case of Janki Vashdeo vs. Indusind Bank Ltd., AIR 2005 SC 439 on which reliance was placed by Learned Trial Court while, denying to act upon the testimony of Special Power of Attorney, basically, re-affirms the well settled law that Power of Attorney holder cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge of. Now, here the question arises that whether what was deposed by attorney holder, the brother of appellant/plaintiff was something that the principal had a personal knowledge of or was relating to some act done by the appellant/plaintiff which only he was privy to? In this case, Power of Attorney has himself stressed that he was present at the time of execution of documents of property in favour of plaintiff. Power of Attorney also deposed that he had seen the unauthorized construction and that the legal notice to the defendant, regarding, raising of unauthorized construction was also sent in his presence. Thus, as per his own affidavit, he was present at each stage of the case and he cannot be dismissed by saying that he is a hearsay witness/Power of Attorney deposing on behalf of plaintiff. Here it would be relevant to refer to the judgment of Capt. Praveen Davar (Retd.) & Anr. vs. Harvansh Kumari & Ors. 2010 (119) DRJ 56 D wherein, the Court while distinguishing the judgment in the case RCA No. 23/2017 Shiv Kumar through its LRs Vs. Rajbir Singh Page No. 11 of 18 of Janki Vashdeo vs. Indusind Bank Ltd., AIR 2005 SC 439 held as under:-
"16. An attempt was made by Mr. Singla, the learned senior counsel for the appellants to contend that none of the plaintiffs having entered into the witness box to assert their title, the evidence of PW-1 Shri Bihari Lal Walia, the Attorney of the respondents, could be of no assistance to the respondents. Relying upon the judgment of the Hon'ble Supreme Court in Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. : AIR 2005 SC 439, the learned senior counsel for the appellants contended that the word "acts", employed in Order 3 Rules 1 & 2 CPC, was confined to acts done by the power of attorney holder in exercise of powers granted by the instrument and was not inclusive of deposing in place and instead of the principal in respect of the matters in which the acts were done by the principal and not by him, and in which only the principal could have a personal knowledge. Apart from the fact that this point was not urged before the learned trial court and has been taken up for the first time in this appeal, there is, even otherwise, in my view, no merit in the same. The provisions of Order 3 Rules 1 and 2 CPC, as is clear from a reading thereof, contain no impediment to the Attorney deposing in place of and instead of the landlord. In Smt. Ramkubai (since deceased) by Lrs and Ors. v. Hajarimal Dhokalchand Chandak and Ors. : AIR 1999 SC 3089, the Supreme Court while dealing with a case where the landlady did not appear in the witness box herself, but instead produced her son, who was also her G.P.A. holder, held that it was not important or essential for the landlord/landlady to enter the witness box to support the case. [See also: Om Prakash v. Inder Kaur 2009 107 DRJ 263 and Satnam Channan v. Darshan Singh 2006(2) RCR (Civil) 615 P and H].
17. The judgment in Janki Vashdeo Bhojwani's case (supra) relied upon by the learned senior counsel for the appellants also does not come to the aid of the appellants and is clearly distinguishable. It has been held in the said case that if the power of attorney renders some acts in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Further, it has been held that he cannot depose for the principal in respect of the matters, in which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. It nowhere states that even though the facts deposed are not facts within the personal knowledge of the principal alone, the power of attorney holder cannot RCA No. 23/2017 Shiv Kumar through its LRs Vs. Rajbir Singh Page No. 12 of 18 depose on behalf of the principal.
Again, in Mr. Vinay Jude Dias vs. Ms.Renajeet Kaur AIR 2009 Delhi 70, it is held that:-
"........"Facts which are within the special knowledge of principal and are not in the knowledge of attorney can only be deposed by the principal. Whether the parties were married on a particular day, is not a private act of the parties. Marriage is normally a public act in this country and evidence can be given by anyone who has knowledge of the fact. Whether the parties are living separate or not is also known to other people associated with the parties and is not something secret. Similarly, for how long parties were living separate can be deposed in the Court by any person who is aware of the facts. If an attorney aware of these facts and can answer the questions of the Court, the attorney cannot be told that he is not a competent witness or his statement would not be recorded. Similarly an attorney, on the basis of instructions/directions given to him, can answer the queries, if there was any possibility of parties patching up and living together or the marriage has broken down irretrievably. An attorney has to be allowed to appear in the witness box and make statement. The Court may reject that part of his statement which is based on hearsay or which he has no personal knowledge. But he cannot be prevented from appearing in the witness box and deposing and answering the queries. Same is the import of judgment of Supreme Court in Janaki Vasudeo Bhojwani (supra) wherein Supreme Court had not debarred an attorney from appearing in the witness box but the Supreme Court has stated the facts which are only in the knowledge of the principal, about those facts attorney cannot testify in the Court......."
Therefore, any act which is not a private act or which is not something, the principal alone can have personal knowledge of can be deposed by the attorney holder. This is equally and instead emphatically said about deposing qua documentary piece of evidence. Thus, in view of above discussion, Special Power of Attorney may depose provided he is not hearsay witness to facts he wanted to depose. Here, in this case Special Power of Attorney specifically stated he has witnessed the facts and thus, his testimony cannot be discarded merely on the ground that it is plaintiff who should instead depose.
RCA No. 23/2017 Shiv Kumar through its LRs Vs. Rajbir Singh Page No. 13 of 18 Finally, at last, appellant has raised the ground that Learned Trial Court had failed to consider the evidence led on the behalf by plaintiff through his witnesses PW1, PW2, PW3 and PW4 and from other relevant material including the cross examination of defendant's witnesses that plaintiff is the exclusive owner of the suit property. It is stated that with the help of chain of documents produced on the behalf of plaintiff, he was successful in proving that defendant has no right, title or interest over the suit property.
Now, that the burden of proof qua the agitated facts falls upon the plaintiff, as it is he who claims possession and other reliefs from defendant. In a suit for possession, plaintiff has to create a high degree of probability so as to shift the onus on the defendant. At the same time, it needs to be understood that in civil case, a mere preponderance of probability, due regard being had to the burden of proof, must be a sufficient basis of decision. So, also there may be degree of probability with in the higher domain of probability. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. Reliance is placed upon A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136 and R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr, (2003) 8 SCC 752.
Appellant/plaintiff claims title through Sh. Pradeep Kumar Gupta (PW3), while respondent/defendant claim the title through Sh. Nagender Singh. Both sides produce their sets of documents viz. General Power of Attorney, Agreement, Receipt. Sh. Pradeep Kumar Gupta, admittedly sold 150 sq. yards to Sh. Nagender Singh from whom defendant claims the title. None of the witnesses produced on behalf of plaintiff including the Special Power of Attorney was able to exactly specify the location of the suit property. In fact, PW3 Sh. Pradeep Kumar Gupta through whom plaintiff is claiming ownership of suit property RCA No. 23/2017 Shiv Kumar through its LRs Vs. Rajbir Singh Page No. 14 of 18 specifically mentioned during the course of cross examination that no site plan was annexed alongwith documents executed in his favour by erstwhile owner, therefore, he had also not supplied the same either to plaintiff or to other purchaser that is Sh. Nagender Singh. A site plan is basically a detailed architectural drawing that exhibits the form, location and orientation of a building on a site. It generally includes the dimensions, contours, landscapes and significant features of a piece of land and is commonly referred to as the plot plan. Admittedly, there is no site plan of suit property, in fact, no site plan was ever attached with the chain of documents handed over to the plaintiff by the, erstwhile owner, Sh. Pradeep Kumar Gupta. Reliance is placed upon RSA No. 28/2001 titled as Smt. Subhadra & Anr. vs. Delhi Development Authority and RSA No. 64/2020 titled as Nathu Ram vs. Delhi Development Authority & Anr. decided on 01.02.2022 by the Hon'ble High Court of Delhi. Any degree of preponderance of probability qua the identification of suit property or say regarding it's location/direction/length/breadth etc. was not raised in favour of appellant/plaintiff, as such the burden of proof lying upon him is not discharged what to speak of shifting of onus.
Even, otherwise also defendant had disputed the title of plaintiff at the very first stage of their appearance in the case that is at the time of filing of written statement. An action for declaration, is the remedy to remove the cloud on the title to the property. As, both parties do not have registered deeds of conveyance which of course is the best piece of evidence as far as question of title needs to clarified. Both the parties have their chain of documents in which common point/person is Sh. Pradeep Kumar Gupta, and this Sh. Pradeep Kumar Gupta has appeared as PW3 never deposed anything against the title/possession of defendant. Here undoubtedly, defendant discloses in his defence the details of his right/title, and it raises a serious dispute or cloud over the plaintiff's title, there was RCA No. 23/2017 Shiv Kumar through its LRs Vs. Rajbir Singh Page No. 15 of 18 therefore a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. It has been explained in Corpus Junis Secundum (Vol. 50, para 735, page 229) that, where title to the property is the basis of the right of possession, a decision on the question of possession is resjudicata on the question of title to the extent that adjudication of title was essential to the judgment.
Also, in Anathula Sudhakar vs. P. Buchi Reddy (dead) by LRs & Anr. (2008) 4 SCC 594, the position was explained as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction.
Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)].
Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, RCA No. 23/2017 Shiv Kumar through its LRs Vs. Rajbir Singh Page No. 16 of 18 and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
Thus, in accordance with the abovesaid judgment, plaintiff should have amended his suit for relief of declaration as cloud was raised over plaintiff's title by the defendant as and when they filed their written statements. Therefore, it can be safely said that there is no merit in the ground undertaken by plaintiff/appellant that through the testimonies of his witnesses/evidences produced on his behalf he had established and proved that he is exclusive owner of the suit property. Instead, plaintiff/appellant has never been able to create a high degree of probability qua the ownership of suit property in his favour so as to shift the onus on the defendant. Thus, there is no merit in this ground as well raised by the appellant/plaintiff.
13. In view of the forgoing analysis and observation, there is no merit in appeal and thus, this appeal qua the judgment of Learned Trial Court dated 03.01.2017 is hereby dismissed, with, no order as to costs. Decree sheet be prepared accordingly.
14. Copy of this judgment be sent along with Trial Court Record.
RCA No. 23/2017 Shiv Kumar through its LRs Vs. Rajbir Singh Page No. 17 of 18 Appeal file be consigned to Record Room, after necessary compliance.
(Manu Vedwan) Addl. District Judge-02(NE)-01 Karkardooma Courts, Delhi.
Announced in the open court today i.e. 16th January, 2023 RCA No. 23/2017 Shiv Kumar through its LRs Vs. Rajbir Singh Page No. 18 of 18