Delhi District Court
Ajay Kumar Awasthi vs N K Ahluwalia on 28 March, 2025
IN THE COURT OF SH. SUMIT DALAL
DISTRICT JUDGE-04, SOUTH-WEST DISTRICT
DWARKA COURTS, NEW DELHI
RCA CIVIL DJ ADJ 1183/2024
CNR No: DLSW01-010354-2024
AJAY KUMAR AWASTHI
S/o Sh. Rajaram
R/o D-3/43, First Floor,
Vashishth Park, Pankha Road,
Delhi - 110046 ....APPELLANT
VERSUS
N. K. AHLUWALIA
W/o Sh. P. S. Ahluwalia
R/o WZ-688, Ground Floor
Back Side of DDA Market,
Shiv Nagar Extn. Jail Road,
Janakpuri, B-1, Delhi - 110058 ....RESPONDENT
DATE OF INSTITUTION : 24.10.2024
JUDGMENT RESERVED ON : 08.01.2025
JUDGMENT PRONOUNCED ON : 28.03.2025
APPEAL UNDER SECTION 96 READ WITH ORDER XLI OF THE
CODE OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT
AND DECREE DATED 23.09.2024 PASSED BY LD. CIVIL JUDGE-01
(SOUTH-WEST), DWARKA COURTS, DELHI IN COUNTER CLAIM
NO. 2/2021.
RCA Civil DJ ADJ 1183/24 Page 1 of 32
JUDGMENT
1. This First Appeal, preferred under Section 96 read with Order XLI of the Code of Civil Procedure, 1908 (CPC), is directed against the judgment and decree dated 23.09.2024 ("impugned judgment") rendered by the Ld. Civil Judge-01 (South-West), Dwarka Courts, Delhi ("Ld. Trial Court") in Counter Claim No. 2/2021. By the impugned judgment, the Ld. Trial Court decreed the Counterclaim instituted by the Respondent herein (Mrs. N.K. Ahluwalia), thereby issuing a mandatory injunction directing the Appellant herein (Mr. Ajay Kumar Awasthi) to vacate and handover possession of the first floor of property bearing No. D-3/43, Vashisth Park, Pankha Road, Sagarpur, Delhi-110046 ("suit property"). The decree further directed the Appellant to pay mesne profits calculated @ Rs. 200/- per diem, along with interest @ 8% per annum, commencing from the date of filing the Counterclaim until the date of actual delivery of possession. Aggrieved by this decision, the Appellant has approached this Court.
FACTUAL COMPENDIUM:
2. The genesis of the dispute lies in the rival claims over the right to occupy the first floor of the suit property. The Respondent, asserting absolute ownership, contended in her Counterclaim that the Appellant was employed as a Supervisor in her husband's (Sh. P.S. Ahluwalia) factory, M/s Griffon, in 2011. Moved by the Appellant's purported "sob story," her husband permitted him, purely as a licensee, to occupy a single room and use an adjacent toilet on the first floor of the suit property. This license, being ancillary to his employment, allegedly stood terminated in April 2020 RCA Civil DJ ADJ 1183/24 Page 2 of 32 upon the cessation of the Appellant's employment following the closure of the factory. The Appellant's refusal to vacate thereafter precipitated the Counterclaim.
3. Conversely, the Appellant vehemently contested this narrative. In his Written Statement to the Counterclaim, he asserted possession since 2001, claiming he occupied the first floor (described as comprising two rooms, toilet, bathroom, kitchen, and open terrace) after spending approximately Rs. 80,000/- on repairs to the then dilapidated structure, allegedly at the behest of the Respondent's husband. He further claimed to have joined the husband's factory as a 'partner' in October 2006, receiving nominal sums monthly. Central to his defence was the assertion that the Respondent and her husband treated him akin to a son and assured him of ownership, culminating in an alleged oral agreement to sell. He claimed a final payment of Rs. 2,20,000/- was made via cheque (No. 000004 dated 08.01.2019, drawn on Karur Vysya Bank) on 09.01.2019 as full and final consideration, and maintained having invested a total of Rs. 35 lakhs towards ownership and maintenance between 2001-2020. He thus denied being a licensee and claimed ownership rights.
4. For procedural context, it is noted that the Appellant had previously instituted a suit for permanent injunction (CS SCJ/605/2020) against the Respondent and her husband, seeking protection from forcible dispossession. This plaint was rejected under Order VII Rule 11 CPC by the Ld. Trial Court on 24.12.2021, and the Appellant's subsequent appeal (RCA No. 05/2022) was dismissed by the Ld. First Appellate Court on 19.07.2022.
RCA Civil DJ ADJ 1183/24 Page 3 of 32The Appellant stated he did not pursue this further due to financial constraints but defended the Counterclaim.
5. In the Counterclaim proceedings, the Ld. Trial Court framed issues on 20.11.2021, placing the onus (OPP) on the Respondent (Counter-Claimant) to prove her entitlement to mandatory injunction and mesne profits.
6. To discharge this onus, the Respondent led the evidence of her husband, Sh. P.S. Ahluwalia, as PW-1. He tendered his examination-in-chief via affidavit (Ex. PW-1/A), reiterating the Counterclaim's averments, and relied upon documents including a General Power of Attorney (GPA) allegedly executed by his wife (Ex. PW-1/1), copies of utility bills (Ex. PW-1/6), wage/salary slips (Ex. PW-1/4), and a bill of sale of machinery (Ex. PW-1/5). PW-1 underwent extensive cross-examination by the Appellant's counsel on 26.08.2023 and 20.01.2024.
7. A fact of critical significance, undisputed before this Court, is that the Appellant elected not to lead any evidence in defence (DE) before the Ld. Trial Court to substantiate his claims of occupancy since 2001, repairs, partnership, the alleged sale agreement, or the payments purportedly made (including the Rs. 2.2 lakh cheque and Rs. 35 lakh total investment). His right to lead DE was closed on 01.06.2024.
IMPUGNED JUDGMENT'S RATIONALE:
8. The Ld. Trial Court, vide the impugned judgment dated 23.09.2024, decreed the Counterclaim. The key pillars of its reasoning were:
RCA Civil DJ ADJ 1183/24 Page 4 of 32a. The Respondent established prima facie ownership based on utility bills and the nature of the Appellant's defence which initially derived title through her.
b. The Appellant's claim of being a 'partner' was deemed contradictory (given the mention of 'salary') and unsubstantiated, particularly as the point was not put to PW-1 in cross-examination. The suggestion put by Appellant's counsel regarding salary deduction linked to a property promise was interpreted as undermining the 'partner' theory. c. The Appellant's defence of purchase/ownership failed comprehensively due to: (a) the mandatory requirement of a registered instrument for sale of immovable property (Section 54, Transfer of Property Act), which was absent; and (b) the complete lack of any evidence (oral or documentary) adduced by the Appellant to prove the alleged payment of Rs. 35 lakhs or the specific Rs. 2.2 lakhs cheque, rendering these claims "bald assertions."
d. In the absence of proof of the Appellant's claimed rights, and based on the employment evidence provided by the Respondent, the Court inferred the Appellant's status as a licensee whose license stood terminated.
e. No adverse inference was drawn against the Respondent for not testifying, primarily because PW-1 was directly involved in the transactions and, crucially, the Appellant himself adduced no evidence.
9. Consequently, the mandatory injunction was deemed justified.
Mesne profits were awarded based on judicial assessment for the admitted RCA Civil DJ ADJ 1183/24 Page 5 of 32 space (interpreted by the Trial Court based on PW-1's testimony as one room and toilet) at Rs. 200/- per day plus 8% interest.
APPELLANT'S GROUNDS OF CHALLENGE:
10. The Appellant assails the impugned judgment contending, inter alia, that:
a. The Respondent failed to discharge the primary burden of proof (Section 101, 102 Evidence Act) regarding her ownership and the specifics of the alleged license (start date, terms, agreement). Reliance was placed on Maria Margarida Sequeria Fernandes & Ors. Vs. Erasmo Jack De Sequeria (D) through his LRs, AIR 2012 SC 1727. b. No documentary proof of ownership was filed, contrary to Section 91, Evidence Act, and the Trial Court's finding otherwise is erroneous. c. The Respondent's non-appearance as a witness warrants an adverse inference under Section 114, Evidence Act (Vidyadhar Vs. Manikrao & Anr, (1999) 3 SCC 573 cited).
d. PW-1 was incompetent to testify due to fatal defects in the GPA (Ex. PW-1/1), admitted during cross-examination, rendering his testimony unreliable and liable to be discarded.
e. The Trial Court wrongly relied on the Appellant's failure to lead defence evidence, effectively decreeing the suit based on the weakness of the defence rather than the strength of the Respondent's case (Smriti Debbarma Vs. Prabha Ranjan Debbarma, 2023 SCC Online SC 9 cited).RCA Civil DJ ADJ 1183/24 Page 6 of 32
RESPONDENT'S STANCE IN APPEAL:
11. As noted, the Respondent did not file a formal reply. Her counsel orally defended the impugned judgment, arguing that the Respondent had sufficiently proved her case on the preponderance of probabilities, that the Appellant's claims were entirely unsubstantiated, and that the Ld. Trial Court's findings were well-reasoned and legally sound.
POINTS FOR DETERMINATION:
12. Based on the pleadings, evidence on record, the impugned judgment, and the grounds of appeal, the following points arise for determination by this Court:
(i) Did the Respondent/Counter-Claimant discharge the initial onus under Section 101 of the Indian Evidence Act to establish, on a preponderance of probabilities, her ownership of the suit property and the existence of a licensor-licensee relationship with the Appellant?
(ii) Was the testimony of PW-1 (Sh. P.S. Ahluwalia) rightly considered by the Ld. Trial Court, despite the procedural irregularities alleged in the GPA (Ex. PW-1/1)?
Furthermore, was the Ld. Trial Court justified in not drawing a conclusive adverse inference against the Respondent for her non-examination?
RCA Civil DJ ADJ 1183/24 Page 7 of 32(iii) Did the Ld. Trial Court correctly apply the principles governing burden of proof (Sections 101 & 102, Evidence Act), particularly in the context where the Appellant failed to lead any defence evidence against the prima facie case established by the Respondent? Was the reliance on Smriti Debbarma (supra) by the Appellant misplaced?
(iv) Is the impugned judgment and decree, including the award of mesne profits, sustainable on the facts and in law?
ANALYSIS AND FINDINGS ISSUE NO. (I): WHETHER THE RESPONDENT/ COUNTER-CLAIMANT DISCHARGED THE INITIAL ONUS UNDER SECTION 101 OF THE INDIAN EVIDENCE ACT TO
ESTABLISH, ON A PREPONDERANCE OF PROBABILITIES, HER OWNERSHIP OF THE SUIT PROPERTY AND THE EXISTENCE OF A LICENSOR-LICENSEE RELATIONSHIP WITH THE APPELLANT?
13. This primary issue comprises two distinct components that require separate examination: (a) the establishment of the Respondent's ownership over the suit property, and (b) the establishment of the nature of the Appellant's occupation, specifically whether it was based on a license granted by the Respondent (or her husband acting on her behalf) ancillary to his employment. The initial burden to prove both these assertions rests squarely upon the Respondent (Counter-Claimant) as per Section 101 of the RCA Civil DJ ADJ 1183/24 Page 8 of 32 Indian Evidence Act, 1872. The standard of proof required is not beyond reasonable doubt, as in criminal proceedings, but rather the preponderance of probabilities applicable to civil litigation.
Analysis of Ownership Proof:
14. The Appellant, in his grounds of appeal, has specifically challenged the Ld. Trial Court's finding regarding the Respondent's ownership, arguing a lack of documentary proof. The evidence adduced by the Respondent on this aspect primarily consists of the deposition of her husband (PW-1) and copies of utility bills (electricity bill and borewell bill, exhibited as Ex. PW-1/6 (colly)).
15. It is trite law that utility bills, while indicative of possession or connection to services at a property, are not documents of title and do not, in themselves, conclusively establish ownership. Ideally, proof of title is established through registered deeds of conveyance or other official documents reflecting title. The Respondent did not place such primary documents on record.
16. However, the issue of ownership must be viewed in the context of the pleadings and the defence raised by the Appellant before the Ld. Trial Court. In his Written Statement to the Counterclaim, the Appellant's core defence was not that the Respondent was never the owner, but rather that the Respondent (or her husband acting implicitly on her behalf) had transferred ownership of the first floor to him through an alleged oral agreement culminating in payments, including a specific cheque payment of Rs.
RCA Civil DJ ADJ 1183/24 Page 9 of 322,20,000/- in 2019. This very defence narrative presupposes the Respondent's pre-existing title, from which the Appellant claims his derivative right flows. While denying ownership in the Written Statement is a standard pleading tactic, the substance of the defence rested on acquisition from the Respondent.
17. Furthermore, during the trial, the Appellant led no evidence whatsoever to suggest that title vested in some third party or to otherwise challenge the Respondent's foundational claim to ownership derived presumably from an earlier acquisition. In the absence of any contrary evidence adduced by the Appellant challenging the Respondent's locus standi based on ownership during the trial, and considering the implicit acknowledgment within his own defence narrative, the Ld. Trial Court's reliance on PW-1's deposition and the utility bills (Ex. PW-1/6) to establish prima facie ownership for the limited purpose of maintaining the present action for possession against the Appellant appears justifiable. The standard is preponderance of probability, and the Respondent's assertion, supported minimally and unrefuted by any contrary evidence at trial, met this threshold sufficiently to proceed with the claim. The challenge raised at the appellate stage regarding ownership proof, while noting the absence of ideal documentation, lacks the support of any evidence led by the Appellant himself during the trial to create a genuine dispute on this specific point vis-à-vis the Respondent's standing.
Analysis of Licensor-Licensee Relationship Proof:
RCA Civil DJ ADJ 1183/24 Page 10 of 3218. This is the more contentious aspect. The Respondent claimed a license was granted in 2011, tied to the Appellant's employment as a Supervisor, covering only one room and a toilet. The Appellant countered with a claim of possession since 2001 under entirely different circumstances (repairer/occupant/partner/purchaser) involving a much larger portion (two rooms, kitchen, bathroom, toilet, terrace).
19. The analysis of the Respondent's evidence is as follows:
a. PW-1's Testimony: Sh. P.S. Ahluwalia deposed consistently with the Counterclaim, stating the Appellant was employed in 2011 and permitted limited occupancy out of sympathy, linked to his job. However, his credibility was impeached during cross-examination regarding the defective GPA (Ex. PW-1/1), his lack of direct knowledge about preparing salary slips, his failure to produce proof of proprietorship of M/s Griffon, and his inability to recall the contents of his own affidavit. This undoubtedly weakens the weight of his oral testimony.
b. Salary Slips (Ex. PW-1/4): These documents (running into 24 pages) were exhibited. Despite challenges during cross-examination regarding their preparation, signature, and completeness (PW-1 admitting he didn't prepare them), they do provide some documentary corroboration for an employment relationship, potentially showing the Appellant designated as 'Supervisor' and receiving wages/salary, which aligns more with the Respondent's narrative than the Appellant's claim of being a 'partner' since 2006.RCA Civil DJ ADJ 1183/24 Page 11 of 32
c. Absence of Written License: A significant lacuna in the Respondent's case is the absence of any written license agreement clearly defining the terms, duration, and scope of the alleged license granted in 2011. While oral licenses are legally permissible, their existence and terms are harder to prove definitively.
20. The analysis of Appellant's evidence is as follows:
a. The Appellant's narrative, as pleaded in his Written Statement, involved specific, verifiable claims - occupancy since 2001; spending Rs. 80,000/- on repairs then; joining as a partner in 2006; receiving specific low payments; investing Rs. 35 lakhs over time; and critically, paying Rs. 2,20,000/- via a specific cheque from a specific bank account belonging to his friend's wife (Smt. Reena Devi) in January 2019 as final sale consideration.
b. Despite the specificity of these claims, the Appellant adduced zero evidence in support. He did not enter the witness box himself to testify about these events. He did not produce any bills or proof for the alleged Rs. 80,000/- repairs in 2001. No partnership agreement or proof of partnership status was filed. Most strikingly, no evidence was led to prove the alleged payment of Rs. 2,20,000/-; the Appellant could have summoned Smt. Reena Devi or Sh. Dev Kumar Rai, or produced certified bank statements showing the debit from her account and credit to the Respondent's husband's account (or the firm's account). Similarly, no proof was offered for the alleged Rs. 35 lakh investment.RCA Civil DJ ADJ 1183/24 Page 12 of 32
c. The cross-examination of PW-1 regarding the Rs. 2.2 lakh cheque resulted in an equivocal response regarding the firm's account ("I do not know"). While this is not a categorical denial, it does not amount to proof that the payment was made. The onus remained squarely on the Appellant, who asserted this payment as a cornerstone of his defence, to prove it. He failed to do so. PW-1's inability to recall or deny knowledge regarding the firm's account transaction cannot be leveraged by the Appellant to discharge his own burden of proof.
21. Weighing the probabilities, the Court must compare the two competing narratives based only on the evidence placed on the record. The analysis of the same is as follows:
a. The Respondent's narrative (license linked to employment) is supported by PW-1's testimony (albeit weakened) and employment-related documents (salary slips). It suffers from the lack of a written license.
b. The Appellant's narrative (long possession culminating in sale/purchase) is supported only by averments in his pleadings and is entirely devoid of any corroborating evidence, despite involving specific and verifiable financial transactions. c. When faced with one narrative having some (even if imperfect) evidentiary support and a conflicting narrative having none, the principles of preponderance of probability dictate that the narrative with some support must be preferred. The existence of an employment relationship makes the grant of an associated license a plausible RCA Civil DJ ADJ 1183/24 Page 13 of 32 scenario. The claim of an oral sale of immovable property, involving substantial alleged payments over years without any documentation or proof thereof, is inherently less probable and requires cogent evidence, which was completely absent.
Conclusion on Issue (i):
22. Therefore, this Court finds that the Respondent, despite certain weaknesses in her evidence (lack of title deeds, no written license, PW-1 credibility issues), did manage to discharge the initial burden under Section 101 of the Evidence Act. She established a prima facie case regarding her ownership (sufficient for maintaining the suit against the Appellant who claimed title derivatively) and presented a plausible, minimally supported narrative of a licensor-licensee relationship linked to employment. The evidentiary burden consequently shifted to the Appellant to prove his defence of ownership via purchase or any other right to remain in possession. As analyzed above, the Appellant completely failed to discharge this burden. Accordingly, Issue (i) is decided in favour of the Respondent/Counter-Claimant.
ISSUE NO. (II): WHETHER PW-1 WAS A COMPETENT WITNESS, AND HIS TESTIMONY COULD BE RELIED UPON DESPITE THE ALLEGED DEFECTS IN THE GPA (EX. PW-1/1)? WAS AN ADVERSE INFERENCE WARRANTED AGAINST THE RESPONDENT FOR NOT TESTIFYING PERSONALLY?
RCA Civil DJ ADJ 1183/24 Page 14 of 3223. This issue involves two interrelated questions concerning the evidence led by the Respondent/Counter-Claimant: the validity and impact of Sh. P.S. Ahluwalia's testimony as PW-1, particularly in light of the challenged General Power of Attorney (GPA), and the legal consequences of the Respondent, Smt. N.K. Ahluwalia, not entering the witness box herself. The Appellant strenuously argues that PW-1 was incompetent due to a defective GPA and that an adverse inference ought to be drawn against the Respondent for her non-appearance.
Analysis of PW-1's Competence and the Validity/Impact of the GPA (Ex. PW-1/1):
24. The law permits parties to conduct legal proceedings, including deposing, through their duly authorized Power of Attorney holders. However, the scope of deposition by a POA holder is circumscribed. The Hon'ble Supreme Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217, clarified the position, holding that while a POA holder can give evidence on behalf of the principal regarding acts done by the holder in pursuance of the power of attorney and facts whereof the holder has personal knowledge, they cannot depose "for the principal" regarding matters which only the principal can have personal knowledge of and for which the principal is liable to be cross-examined.
25. In the present case, PW-1 is the husband of the Respondent. His testimony primarily related to: (a) employing the Appellant in his factory (M/s Griffon); (b) granting the Appellant permission to occupy a portion of the suit property (owned by his wife) ancillary to that employment; (c) the RCA Civil DJ ADJ 1183/24 Page 15 of 32 subsequent termination of employment and license; and (d) interactions concerning the Appellant's refusal to vacate. These are predominantly matters where PW-1 appears to have been the primary actor or negotiator on behalf of his wife, or at least jointly involved. Therefore, the substance of his deposition largely pertains to facts arguably within his personal knowledge due to his direct participation. He wasn't merely relaying information told to him by his wife; he was deposing about his own alleged actions and interactions with the Appellant.
26. The Appellant rightly points to serious defects in the GPA document (Ex. PW-1/1) itself, as admitted by PW-1 during cross-examination dated 26.08.2023: it lacked a date, did not mention names or signatures of attesting witnesses, and PW-1 professed ignorance about its preparation and stamp value. These irregularities undoubtedly cast significant doubt on the formal validity and proper execution of the GPA as a legal instrument authorizing PW-1 qua agent.
27. However, the critical question is whether these defects in the authorizing document (GPA) render PW-1 inherently incompetent to testify about facts that are otherwise within his personal knowledge as the husband actively involved in the disputed transactions. While a defective GPA might fail to legally establish the agency relationship if strictly challenged on that ground, PW-1's competence to testify regarding his own actions and knowledge does not solely hinge on the perfection of the GPA document. He testified as 'PW-1', the first witness for the plaintiff/Counter-Claimant, about matters he was directly involved in. The GPA served primarily to explain RCA Civil DJ ADJ 1183/24 Page 16 of 32 why he, rather than his wife, was deposing. While the flaws reflect poorly and impact the overall credibility assessment, they do not, in the opinion of this Court, operate as an absolute legal bar preventing consideration of his testimony regarding facts personally known to him. The Ld. Trial Court implicitly took this view by considering his evidence. This Court finds that while the weight and credibility of PW-1's testimony must be assessed cautiously in light of these irregularities and other factors emerging from cross-examination (like lack of memory regarding his affidavit), the testimony itself was not liable to be discarded in toto merely due to the GPA's formal defects, particularly concerning facts within his personal knowledge.
Analysis of Adverse Inference for Respondent's Non-Examination:
28. The Appellant strongly relies on the principle enunciated in Vidyadhar (supra) and Section 114 of the Indian Evidence Act, contending that the Respondent's failure to testify personally warrants an adverse presumption that her case is untrue. The principle is well-established: where a party possesses personal knowledge of relevant facts and refrains from entering the witness box without adequate reason, the Court may draw an inference against them.
29. However, this inference is discretionary ("may presume") and context-dependent. It is not an invariable rule of law. Factors to consider include whether the party had personal knowledge distinct from the witness produced, whether the witness produced was competent and sufficiently RCA Civil DJ ADJ 1183/24 Page 17 of 32 knowledgeable about the core issues, and the nature of the evidence presented by the opposing party.
30. In this case, the Ld. Trial Court reasoned that PW-1, being the husband and the one directly involved in employing the Appellant and permitting his occupation, was the relevant witness. This reasoning has merit, as the core dispute revolved around the terms of employment and occupancy allegedly negotiated and managed by PW-1.
31. More significantly, the Appellant's argument for adverse inference against the Respondent must be viewed in light of his own conduct. The Appellant made substantial positive assertions in his defence - occupation since 2001, Rs. 80,000/- repairs, partnership since 2006, an oral agreement to sell, total investment of Rs. 35 lakhs, and a specific payment of Rs. 2,20,000/- via cheque as final consideration. These are matters squarely within the Appellant's personal knowledge. Yet, the Appellant chose not to testify himself or lead any other evidence whatsoever to substantiate these claims. If the principle of adverse inference is to be applied, it applies with arguably greater force to the Appellant's failure to support his own positive, verifiable assertions.
32. Therefore, while acknowledging the principle in Vidyadhar (supra), drawing a decisive adverse inference solely against the Respondent for her non-appearance would be imbalanced and unjustified in the specific factual matrix where: (a) her husband, who was directly involved, did testify (however imperfectly), and (b) the Appellant himself completely failed to adduce any evidence, including his own testimony, to support his substantial RCA Civil DJ ADJ 1183/24 Page 18 of 32 counter-narrative. The Appellant cannot reasonably insist on an adverse inference against the Respondent while ignoring his own profound evidentiary failure on the positive case he pleaded. The Ld. Trial Court was therefore justified in not allowing this factor alone to negate the Respondent's claim.
Conclusion on Issue (ii):
33. In conclusion, regarding Issue (ii):
a. PW-1 (Sh. P.S. Ahluwalia) was competent to testify regarding facts within his personal knowledge concerning the employment of the Appellant and the circumstances of his occupation, despite the procedural defects in the GPA (Ex. PW-1/1), if any. These defects primarily affect the weight and credibility of his testimony rather than its admissibility per se regarding facts personally known. b. No conclusive adverse inference is warranted against the Respondent (Smt. N.K. Ahluwalia) for her non-examination under Section 114 of the Evidence Act or the principle in Vidyadhar (supra), given that her husband (PW-1) who was directly involved in the relevant transactions testified, and critically, the Appellant himself failed to lead any evidence or testify in support of his own positive defence narrative.
34. Accordingly, Issue (ii) is decided against the Appellant.
ISSUE NO. (III): WHETHER THE LD. TRIAL COURT CORRECTLY APPLIED THE PRINCIPLES GOVERNING BURDEN RCA Civil DJ ADJ 1183/24 Page 19 of 32 OF PROOF, PARTICULARLY CONSIDERING THE APPELLANT'S FAILURE TO LEAD ANY DEFENCE EVIDENCE AGAINST THE PRIMA FACIE CASE ESTABLISHED BY THE RESPONDENT? WAS THE RELIANCE ON SMRITI DEBBARMA (SUPRA) BY THE APPELLANT MISPLACED?
35. This issue delves into the core procedural aspect of the trial and the Ld. Trial Court's application of fundamental principles of evidence law, specifically concerning the burden and onus of proof. The Appellant contends that the Ld. Trial Court erroneously decreed the Counterclaim by relying on the Appellant's failure to lead defence evidence, thereby violating the principle that a plaintiff (or Counter-Claimant) must succeed on the strength of their own case, citing Smriti Debbarma Vs. Prabha Ranjan Debbarma, 2023 SCC Online SC 9.
Understanding Burden of Proof (Section 101) vs. Onus of Proof (Section
102):
36. It is essential to distinguish between the 'burden of proof' (legal burden or onus probandi) as defined under Section 101 of the Indian Evidence Act, 1872, and the 'onus of proof' (evidentiary burden) contemplated under Section 102.
37. Section 101 (Burden of Proof) places the fundamental burden of establishing a case upon the party who asserts the existence of facts necessary for a legal right or liability they claim. This legal burden is constant and never shifts. In the context of the Counterclaim, the burden lay RCA Civil DJ ADJ 1183/24 Page 20 of 32 squarely on the Respondent (Counter-Claimant) to prove the foundational elements of her claim: her ownership of the suit property and that the Appellant occupied it as her licensee under terms that had since terminated.
38. Section 102 (Onus of Proof) deals with the evidentiary burden - the obligation to adduce evidence at different stages of the trial. This onus is not static; it shifts. Initially, it rests on the party bearing the legal burden (Section 101). If that party produces sufficient evidence to raise a presumption or establish a prima facie case (meaning, a case which, if unrebutted, would entitle them to succeed), the evidentiary burden shifts to the opposing party. The opponent must then adduce evidence to rebut the prima facie case or prove facts which negate the inference drawn. Failure to discharge this shifted onus can lead to the success of the party who established the prima facie case. Section 102 essentially asks: "On whom the burden of proof lies... who would fail if no evidence at all were given on either side?" This question is posed sequentially throughout the trial as evidence is introduced.
Application in the Present Case:
39. As analyzed under Issue (i), this Court has found that the Respondent, despite weaknesses in her evidence, did manage to discharge her initial burden under Section 101. She presented some evidence through PW-1's testimony, utility bills (Ex. PW-1/6), and salary slips (Ex. PW-1/4) which, taken together and in the absence of immediate refutation, raised a probability favouring her claim of ownership and a license linked to employment. This constituted a prima facie case.
RCA Civil DJ ADJ 1183/24 Page 21 of 3240. Upon the establishment of this prima facie case by the Respondent, the evidentiary burden (onus) shifted decisively onto the Appellant. It became incumbent upon him to:
a. Rebut the Respondent's Prima Facie Case: He attempted this partially through the cross-examination of PW-1, aiming to discredit the witness and challenge the documents (like the GPA and salary slips). However, cross-examination alone, while capable of weakening the opponent's case, often does not suffice to demolish it entirely, especially when positive counter-claims are made. b. Prove His Own Positive Defence: Critically, the onus shifted onto the Appellant to positively establish the elaborate defence he had pleaded:
that he occupied since 2001, spent Rs. 80,000 on initial repairs, worked as a partner (not employee), invested Rs. 35 lakhs over two decades, and crucially, purchased the property via an agreement culminating in a verifiable payment of Rs. 2,20,000/- by cheque in January 2019.
41. Appellant completely failed to discharge the shifted onus. The record is unequivocal:
a. the Appellant led zero defence evidence. He did not testify; b. he did not call his friend or his friend's wife regarding the alleged cheque payment;
c. he did not produce bank statements;
d. he did not produce bills for repairs or investments; e. he did not produce any document hinting at a partnership.RCA Civil DJ ADJ 1183/24 Page 22 of 32
His entire defence, replete with specific factual and financial assertions, remained confined to his pleadings. By failing to adduce any evidence after the onus had shifted, the Appellant failed completely to discharge the evidentiary burden placed upon him by Section 102.
42. The legal consequence of the Appellant's failure is that the Respondent's prima facie case, established earlier, stood largely unrebutted by positive evidence from the Appellant. The court, when deciding the matter finally, was left with the Respondent's evidence (however imperfect) on one side and a complete vacuum of evidence supporting the Appellant's conflicting narrative on the other. The Ld. Trial Court was, therefore, bound to decide based on the preponderance of probability arising from the material on record.
Analysis of the Trial Court's Approach and the Applicability of Smriti Debbarma (supra):
43. The Appellant's reliance on Smriti Debbarma (supra), which holds that a plaintiff must succeed on their own strength and not merely due to the weakness of the defence, is based on a sound legal principle. However, its application to the present facts is misconceived. This principle primarily guards against granting relief where the plaintiff's own case is inherently flawed, legally insufficient, or devoid of essential proof, even if the defendant offers a poor or non-existent defence. It ensures a minimum threshold of proof is met by the claimant.
RCA Civil DJ ADJ 1183/24 Page 23 of 3244. The Ld. Trial Court, in its judgment, did not violate this principle. Its reasoning followed the correct sequence:
a. First, it assessed whether the Respondent (Counter-Claimant) had met her initial burden under Section 101 and established a prima facie case. It concluded, based on its appreciation of PW-1's testimony and documents like salary slips, that she had established such a case, sufficient to shift the onus. (Paragraphs 28, 29, 38 of the Trial Court Judgment).
b. Second, it examined whether the Appellant had discharged the onus that shifted onto him under Section 102 to prove his defence of purchase/ownership. It found a complete failure ("failed to bring any iota of evidence," "mere bald assertions which he has failed to substantiate," Paragraphs 36, 38 of Trial Court Judgment). c. Third, it weighed the probabilities based on the available evidence. Finding the Respondent's minimally supported case unrebutted by any positive evidence from the Appellant, it concluded her version was more probable.
45. This approach does not equate to deciding solely based on the "weakness of the defence." Rather, it reflects a decision based on the relative strengths of the cases as presented through evidence on record. The Respondent presented some strength (enough for a prima facie case), while the Appellant presented none for his positive defence. In such a scenario, the Respondent succeeds not because the Appellant's defence was weak, but because her own case, having crossed the initial threshold, remained RCA Civil DJ ADJ 1183/24 Page 24 of 32 essentially unchallenged by any contrary evidence from the Appellant regarding his specific claims of sale and payment. Smriti Debbarma (supra) does not absolve a defendant from leading evidence to prove their own positive assertions once a prima facie case has been established by the plaintiff.
Conclusion on Issue (iii):
46. This Court finds that the Ld. Trial Court correctly understood and applied the distinct concepts of the legal burden of proof (Section 101) and the shifting evidentiary onus (Section 102). The finding that the Respondent discharged her initial burden, thereby shifting the onus to the Appellant, is supported by the record. The Appellant's absolute failure to lead any defence evidence meant he failed to discharge the onus cast upon him. The Ld. Trial Court's final decision was appropriately based on the preponderance of probabilities arising from the evidence adduced (or conspicuously not adduced) by the parties. The Appellant's reliance on the principle that the plaintiff must win on their own strength, while correct in abstracto, is misplaced here because the Respondent did establish a prima facie case, which the Appellant failed entirely to rebut with evidence supporting his own specific, positive defence. Therefore, the Ld. Trial Court did not err in its application of the burden of proof principles. Issue (iii) is accordingly decided against the Appellant.
ISSUE NO. (IV): WHETHER THE IMPUGNED JUDGMENT AND DECREE, INCLUDING THE AWARD OF MESNE PROFITS, ARE SUSTAINABLE ON THE FACTS AND IN LAW?
RCA Civil DJ ADJ 1183/24 Page 25 of 3247. This final issue requires the Court to synthesize the findings on the preceding issues and determine the overall sustainability, both factually and legally, of the judgment and decree passed by the Ld. Trial Court. This involves assessing whether the conclusions reached by the Ld. Trial Court flow logically from the evidence on record (as appreciated by this Court) and conform to established legal principles, and whether the relief granted is appropriate and justified.
Synthesis of Findings on Preceding Issues:
48. As determined in the analysis of Issues (i), (ii), and (iii) above:
a. The Respondent/Counter-Claimant was found to have discharged her initial burden of establishing prima facie ownership and a licensor-licensee relationship on a preponderance of probabilities (Issue i).
b. PW-1 (Respondent's husband) was found competent to testify on facts within his personal knowledge despite procedural defects in the GPA, and no conclusive adverse inference was deemed warranted against the Respondent for her non-examination, particularly in light of the Appellant's own failure to lead evidence (Issue ii). c. The Ld. Trial Court was found to have correctly applied the principles of burden of proof, recognizing the shift in onus to the Appellant, which he completely failed to discharge regarding his positive defence of purchase/ownership (Issue iii).
Sustainability of the Decree for Mandatory Injunction:RCA Civil DJ ADJ 1183/24 Page 26 of 32
49. The primary relief granted by the Ld. Trial Court is a decree of mandatory injunction directing the Appellant to vacate the suit property. The sustainability of this relief hinges on the finding regarding the nature of the Appellant's occupation.
50. Having affirmed the Ld. Trial Court's finding (based on preponderance of probability derived from the available evidence) that the Appellant occupied the premises as a licensee whose license was ancillary to his employment, and that this license stood terminated, the legal consequence follows. A licensee holds no independent right, title, or interest in the property itself; their right to occupy is purely permissive and ceases upon termination of the license.
51. The Appellant, having failed entirely to establish any alternative legal right to remain in possession - be it ownership through the alleged (and unproven) sale, rights as a partner (contradicted and unproven), or any other form of protected tenancy - his continued occupation post-termination of the license became unlawful.
52. In such circumstances, where a erstwhile licensee refuses to vacate upon termination of the license, a suit for mandatory injunction is a legally recognized and appropriate remedy for the licensor to recover possession. Therefore, the Ld. Trial Court's decision to grant the decree of mandatory injunction is a direct, logical, and legally sound consequence of its findings on the Appellant's status as a licensee whose permission to occupy had ceased. This part of the decree is held to be sustainable.
RCA Civil DJ ADJ 1183/24 Page 27 of 32Sustainability of the Decree for Mesne Profits:
53. The Ld. Trial Court also awarded mesne profits/damages for wrongful use and occupation @ Rs. 200/- per day, plus 8% p.a. interest, from the date of filing the Counterclaim until possession handover. The sustainability of this award requires examining both the entitlement and the quantification.
54. Mesne profits, as defined under Section 2(12) of the CPC, are essentially damages payable by a person in wrongful possession of property for such wrongful occupation. Once it is established that the Appellant's license terminated and his continued possession became unlawful, the Respondent's entitlement to mesne profits from the date the possession became wrongful arises as a matter of law (Order XX Rule 12 CPC). The Trial Court correctly identified the date of filing the Counterclaim as the point from which such wrongful occupation (and thus entitlement to mesne profits) commenced for the purpose of the decree.
55. Quantification is often a contentious aspect. The Respondent claimed Rs. 250/- per day but, as the Ld. Trial Court noted, adduced no specific evidence (like lease deeds of similar properties, valuer's report etc.) to substantiate this rate. The Appellant, similarly, led no evidence to suggest a lower rate would be appropriate.
56. In the absence of specific evidence from either party, courts often resort to some level of judicial notice or estimation based on the property's nature, size, location, and the time period involved, as recognized RCA Civil DJ ADJ 1183/24 Page 28 of 32 in the judgment of the Hon'ble Delhi High Court in M.C. Agrawal and Ors. Vs. Sahara India and Ors, 183 (2011) DLT 105. The Ld. Trial Court assessed the rate at Rs. 200/- per day (approximately Rs. 6,000/- per month). It based this presumably on the description of the premises as predominantly one room and an adjacent toilet (as per PW-1's testimony, although disputed by Appellant who claimed a larger area but failed to prove it) located in Sagarpur, Delhi, for residential use during the period from late 2020/early 2021 onwards.
57. Considering the location within Delhi and the general rental values, even for basic accommodation, an amount of Rs. 200/- per day does not appear, on the face of it, to be punitive, arbitrary, or wholly unreasonable. It reflects a modest assessment for unauthorized occupation in the National Capital Territory. While estimation always carries a degree of imprecision, the Appellant provided no basis whatsoever to challenge this figure as excessive during the trial. Therefore, the Ld. Trial Court's quantification, being an exercise of judicial discretion based on available information and general knowledge of local conditions, cannot be termed perverse or unsustainable.
58. The award of interest on mesne profits is well-established, as interest is considered an integral part of the compensation for being kept out of possession and deprived of the property's potential returns. The rate awarded, 8% per annum, is reasonable and standard in such matters.
RCA Civil DJ ADJ 1183/24 Page 29 of 3259. Therefore, the award of mesne profits at the assessed rate, along with interest, is also found to be legally sound and factually sustainable based on the record.
Overall Conclusion on Sustainability:
60. Synthesizing the findings on all issues, this Court concludes that the Ld. Trial Court engaged in a proper appreciation of the pleadings and the evidence as available on record. It correctly identified the legal principles governing ownership, license, transfer of property, and burden of proof. While the Respondent's evidence had certain infirmities, the complete failure of the Appellant to lead any defence evidence to substantiate his specific and positive counter-narrative was fatal to his case. The Trial Court's conclusions regarding the Appellant's status as a licensee and the termination thereof are supported by the preponderance of probabilities emerging from the record. The reliefs of mandatory injunction and mesne profits granted are the logical and legal consequences of these findings. The judgment does not suffer from any patent illegality, irrationality, or procedural impropriety that would necessitate interference by this Court.
61. Accordingly, Issue (iv) is decided against the Appellant, holding that the impugned judgment and decree dated 23.09.2024 are sustainable both on facts and in law.
FINAL CONCLUSION:
62. This Court has undertaken a thorough re-appreciation of the evidence and considered the legal arguments advanced. While RCA Civil DJ ADJ 1183/24 Page 30 of 32 acknowledging the procedural irregularities and weaknesses in the Respondent's evidence (flawed GPA, non-examination of Respondent, lack of written license, PW-1 credibility issues), these are significantly outweighed by the Appellant's complete and inexplicable failure to lead any evidence whatsoever in support of his positive defence involving substantial claims of repairs, partnership, purchase, and specific payments. The Appellant had ample opportunity to substantiate his claims, particularly the alleged cheque payment of Rs. 2,20,000/-, which was easily verifiable. His failure to do so leaves his defence entirely unsupported. In this scenario, the Ld. Trial Court correctly weighed the available evidence and decided the case based on the preponderance of probabilities, which favoured the Respondent's narrative of a license linked to employment. The legal principles regarding burden of proof and requirement of registered documents for sale were correctly applied.
ORDER
63. In view of the foregoing analysis, this Court finds no merit in the present appeal. The appeal is hereby dismissed.
64. The impugned judgment and decree dated 23.09.2024 passed by the Ld. Civil Judge-01 (South-West), Dwarka Courts, Delhi in Counter Claim No. 2/2021 is upheld and confirmed.
65. The Appellant shall bear his own costs and is further directed to pay the costs incurred by the Respondent in this appeal. Counsel's fee assessed as per rules/certificate, if filed.
RCA Civil DJ ADJ 1183/24 Page 31 of 3266. Decree sheet be drawn up accordingly.
67. The Trial Court Record be returned forthwith along with an attested copy of this judgment.
68. The appeal file be consigned to the Record Room.
PRONOUNCED IN THE OPEN COURT
ON 28.03.2025 AND DIGITALLY SIGNED Digitally
signed by
SUMIT SUMIT DALAL
1
AND UPLOADED ON 02.04.2025 Date:
DALAL 2025.04.02
10:15:35
+0530
(SUMIT DALAL)
DISTRICT JUDGE-04,
SOUTH WEST DISTRICT,
DWARKA COURTS, NEW DELHI.
1
The judgment could not be digitally signed and uploaded on 28.03.2025 (the day of the pronouncement of the judgment) due to an unusually heavy cause list comprising 71 matters. On 29.03.2025, the undersigned was deputed for training at the Delhi Judicial Academy. The subsequent days, i.e., 30.03.2025 and 31.03.2025, were court holidays, and on 01.04.2025, the undersigned was on sick leave. In view of the above, the judgment is digitally signed and uploaded at the earliest possible opportunity on 02.04.2025.
RCA Civil DJ ADJ 1183/24 Page 32 of 32