Delhi District Court
Sh. Balbir Singh Rana vs . Smt. Harcharan Kaur on 22 January, 2014
Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur
IN THE COURT OF SH. CHANDER SHEKHAR
DISTRICT & SESSIONS JUDGE (NORTHWEST)
ROOM NO. 401 : ROHINI COURTS: DELHI.
ARCT No. 114/11
Date of institution : 29.03.2004
Date of hearing arguments : 06.01.2014
Date of Judgment : 22.01.2014
In the matter of:
Shri Balbir Singh Rana
S/o Shri Lehri Singh
R/o : 133, Sainik Vihar, Pitampura,
Delhi110 034. ........Appellant
Versus
Smt. Harcharan Kaur,
W/o Late Shri Malik Singh,
R/o : C37, Bhajanpura,
Delhi. ..........Respondent
JUDGMENT
1 This Judgment shall govern the disposal of an Appeal filed by the appellant(respondent in the DRC Petition) U/s 38 of Delhi Rent Control Act, 1958 (henceforth 'the DRC Act') against the Judgment dated 20.03.2004 passed by the Ld. Additional Rent Controller, Delhi in the ARCT No. 114/11 Page 1 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur petition bearing No. M13/03 U/s 14(1)(b)(d) & (h) of the DRC Act whereby the Ld. Additional Rent Controller, Delhi has been pleased to pass eviction order U/s 14(1)(b)(d) & (h) of the DRC Act against the appellant in respect of the suit premises i.e., Premises No.26, Sawan Park Extension, Ashok Vihar, Delhi, as shown red colour in the site plan.
2 The appellant preferred an appeal against the impugned Judgment dated 20.03.2004 which was decided by the Ld. ARCT vide order dated 04.04.2005 whereby the Ld. ARCT was pleased to allow the appeal and the Judgment impugned in the appeal was set aside/ reversed, and the eviction petition was ordered to be dismissed vide order dated 04.04.2005 in RCA No. 167/2004. The respondent, aggrieved by the said order, filed CM(M) No.1417/05 before the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi while disposing of the CM(M) No.1417/05 on 21.09.2011 was pleased to remand back the appeal to this Court with directions to decide the same on the basis of evidence already available before the Court, re examine the evidence and pass a reasoned and speaking order on the eviction petition of the landlord, vide order dated 21.09.2011.
3 The respondent/ petitioner filed the eviction petition before the Ld. Additional Rent Controller, Delhi U/s 14(1)(b), 14(1) (d) & 14(1)(h) of ARCT No. 114/11 Page 2 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur the DRC Act stating therein that the premises No.26, Sawan Park, Extension, Ashok Vihar, Delhi was let out to the appellant/respondent by the previous owners at a monthly rent of Rs.75/ excluding electricity and water charges; and as per the petitioner, the premises is residential and has been let out for residential purposes but the appellant/respondent has sublet and allowed the use of the premises for residentialcum commercial purposes; and that the respondent has sublet, assigned and parted with the possession of the portion of the tenanted premises in favour of the various subtenants as shown in the red in the site plan, without the consent in writing or otherwise of the petitioner or his predecessor. It is further averred that the respondent has already acquired and built his own residence at 133, Sainik Vihar, Delhi and the respondent nor any member of his family has been residing in the suit premises for the last more than six months from the date of filing of the eviction petition. The Ld. ARC, Delhi, on the basis of his findings, passed the eviction order under Sections 14(1)(b), 14(1)(d) & 14(1)(h) of the DRC Act vide Judgment dated 20.03.2004. 4 Aggrieved by the impugned Judgment dated 20.03.2004 passed by the Ld. Additional Rent Controller, Delhi, the appellant/ respondent has filed the present Appeal U/s 38 of the Delhi Rent Control Act, apart from the other grounds, with the contentions that the respondent in order to grab the property in conspiracy with her other associates, first by producing ARCT No. 114/11 Page 3 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur bogus persons by the name of Tehal Singh and Makhan Singh, got a general power of attorney executed at Amritsar in respect of the property in suit in favour of one Vishwa Nath, who was the own man of the respondent and then on the strength of that attorney got the sale deed executed in respect of the property in suit in her favour qua which an FIR No.15/2001 U/s 420/467/468/471/120B IPC was registered with Police Station : Kotwali, Amritsar, Punjab, and that the respondent along with other associates is facing trial before the competent Court at Amritsar, Punjab. 5 This appeal, at the first instance, was decided by Sh. S.M. Chopra, the then Ld. ARCT: Delhi and CM(M) No. 1417/05 against the said order was filed before the Hon'ble High Court of Delhi. Hon'ble High Court while disposing the said CM(M) No. 1417/05 on 21.09.2011, remanded back the appeal to this Court with directions to decide the same on the basis of evidence already available before the Court, reexamine the evidence and pass a reasoned and speaking order on the eviction petition of the landlord.
6 During the course of proceedings before this Court, an application under Order XLI R 27 r/w Section 151 CPC dated 28.04.2014 was also filed by the appellant and reply whereof was also filed by the ARCT No. 114/11 Page 4 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur respondent.
7 I have heard arguments simultaneously on the appeal as well as on the application under Order XLI R 27 r/w Section 151 CPC filed by the appellant. I would like to mention here that during the course of arguments, Ld. counsel for the appellant submitted that so far as the main appeal is concerned, the only question involved in the appeal is "Whether the respondent is landlady in view of the sale deed or not." The Ld. Counsel for both the parties have addressed the arguments only on this point before this Court and none other ground, as is evident from the ordersheet dated 19.12.2013, was argued.
8 Before delving deep into the facts of the present case, I would like to deal with the application under Order XLI Rule 27 r/w Section 151 CPC first. The appellant, after remanding back the matter to this Court, moved an application under Order XLI Rule 27 r/w Section 151 CPC stating therein that after the order of remand back, the appellant learnt that a case relating to the sale deed executed by one Vishwa Nath, the alleged attorney of Makhan Singh and Tehal Singh, on the basis of which the respondent had filed eviction petition against the appellant and had taken possession of property of one Bhanwar Singh, is pending; and that Vishwa Nath, the alleged attorney of the sellers Makhan Singh and Tehal Singh of the ARCT No. 114/11 Page 5 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur properties, including the property in dispute in favour of the respondent, appeared in the said suit and had filed written statement disclosing therein that he was a victim of the conspiracy of the respondent, her soninlaw Shri Sukhdayal Singh and others and by taking undue advantage of the fact that Vishwa Nath defendant was liquor addict and after drinking session, he was made to sign and get documents executed, and that he does not know either Makhan Singh and/ or Tehal Singh, the alleged vendors. It is further averred that he has no knowledge of the deal and the Sale Deed in favour of the respondent is a result of forgery and cheating done by the present respondent and defendants no.3 & 4 in that Civil Suit, and he further stated that he never sold the property to the respondent and that at the request of appellant Bhanwar Singh, he gave the certified copy of the written statement of Vishwa Nath, which was not within the knowledge of the appellant earlier and he could not, despite exercise of due diligence, produce the same in the Court of the Ld. ARC, Delhi during the proceedings of the eviction petition and even at the time when the order of eviction was passed or the appeal/ petition before the Hon'ble High Court was heard and disposed of. It is further averred that since the appellant has got the certified copy of the Written Statement of the alleged attorney, who allegedly executed the sale deed in favour of the respondent only about 2 weeks back, the same is very material and relevant for the purposes of the present appeal; and further that the factum of the registration of the FIR regarding the act of cheating has ARCT No. 114/11 Page 6 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur already got reference in the case and that since the factum of the filing of suit by Bhanwar Singh against the respondent, appearance of Vishwa Nath in the above case and filing of the Written Statement by him in the Civil court were not within the knowledge of the appellant earlier, therefore, the appellant, despite due diligence, could not file the said document in this case.
9 Controverting the contentions of the applicant/ appellant, the respondent filed a reply to the said application and prayed that the application is neither tenable nor maintainable under the law and the same is liable to be rejected/ dismissed. It is further stated that it is denied that the factum of the filing of the written statement was not within the knowledge of the appellant or his attorney, who has got moved this application, was fully aware of all these facts and the fact that the portion occupied by Shri Bhanwar Singh had already been got vacated by the respondent and it is apparent that this false plea is again being sought to be raised on the basis of which the FIR was got registered when this very plea was discarded right up to the Hon'ble High Court as raised by Shri Bhanwar Singh and also by the Criminal Courts and as such, the same needs no consideration and when even Vishwa Nath is not alive now and as such, the said Written Statement has no meaning when there are various documents got produced even in this case and even in the eviction case of Shri Rishal Singh which had the ARCT No. 114/11 Page 7 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur signatures of Shri Makhan Singh and Shri Tehal Singh which clearly matched with the signatures on the registered power of attorney executed in favour of Shri Vishwa Nath. It is further denied by the respondent that Shri Vishwa Nath ever appeared or made any statement as alleged and it is stated that after having got the FIR registered, the alleged Written Statement was got signed from him either under the influence of liquor or under threat or for any other consideration and as such the plea has no merit and needs no consideration. It is further averred that it is baseless to allege that the certified copy of the Written Statement is either a public document or is of any consequence when the said Shri Vishwa Nath is not even alive. It is further submitted that this plea has no meaning when the order of eviction was also passed against Shri Bhanwar Singh and even possession has been obtained from him by the respondent and when the prosecution launched on the basis of the said FIR, the respondent was acquitted and even the appeal of the State stands dismissed. It is submitted that the Suit of Sh. Bhanwar Singh is also handled by the office of the same counsel who is handling this appeal. It is submitted that the application under Order XLI Rule 27 r/w Section 151 CPC filed by the appellant is vague, evasive and vexatious and liable to be dismissed.
10 On the aspects of the fate of the application under Order XLI Rule 27 CPC, in the matter of State of UP vs. Manbodhan Lal Srivastava, ARCT No. 114/11 Page 8 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur AIR 1957 SC 912, the Constitution Bench of the Hon'ble Supreme Court held that "additional evidence" should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacuna in presenting its case at proper stage and to fill in gaps. In the matter of Natha Singh vs. Financial Commissioner Taxation, Punjab, AIR 1976 SC 1053, the Hon'ble Apex Court was pleased to hold that unless additional evidence is necessary to pronounce the judgment, it should not be permitted to be adduced as the discretion given to the Appellate Court to receive and admit additional evidence, is not an arbitrary one but it is judicial one circumscribed by the limitation specified in Order 41 Rule 27 of the Code. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence, so brought on record, has to be ignored. In Smt. Pramod Kumari Bhatia vs. Om Parkash Bhatia & Ors., AIR 1980 SC 446, the Hon'ble Supreme Court was pleased to hold that there can be no justification to entertain the application under Order XLI Rule 27 at a belated stage and it deserves to be rejected on this count alone. In Shivajirao Nilangekar Patil Vs. Dr. Mahesh Madhav Gosavi, AIR 1987 SC 294, the Hon'ble Apex Court was pleased to hold that if the application unnecessarily prolongs the disposal of the case and not directly connected with the immediate issue, it deserves rejection. Party filing such an application has to establish with his best efforts that such additional ARCT No. 114/11 Page 9 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur evidence could not have been adduced at the first instance; secondly, the party affected by the admission of additional evidence, should have an opportunity to rebut such evidence; and thirdly, the additional evidence was relevant for determination of the issue. In Mahavir singh & Others vs. Naresh Chandra and another, AIR 2001 SC 134, the Hon'ble Apex Court considered the issue elaborately and observed that "Principle to be observed ordinarily is that the Appellate Court should not travel outside the record of the lower Court and can not take evidence in appeal. However, Section 107(d) CPC is an exception to the general rule and an additional evidence can be taken only when the conditions and limitation laid down in the said rule are found to exist. The Court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled, as a right, to the admission of such evidence and the matter is entirely in the discretion of the Court, which is, of course, to be exercised judiciously and sparingly."
11 In the case of Mahavir Singh (supra), by the time the Hon'ble Supreme Court decided the case, the additional evidence had been taken on record. The Court rejected the prayer that the evidence already taken on record may be considered by the Court below while making the final decision as the provisions could become unending and additional evidence can be taken only in the circumstances prescribed under Order XLI Rule 27 ARCT No. 114/11 Page 10 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur of the Code.
12 In Purushottam Reddy Vs. Pratap Steel Limited, AIR 2002 SC 771, the Hon'ble Apex Court examined a case, wherein the Hon'ble High Court had remanded the case to the trial Court to take additional evidence and decide the case afresh. The Court came to the conclusion that such a view was not permissible in the fact situation of that case; thus, the order of remand was set aside observing as under :
".......... Although, the order of remand has been set aside....yet it should not be understood as depriving the High Court of its power to require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, within the meaning of Clause (b) of sub rule (1) of Rule 27 of Order 41. That power inheres in the Court and the Court alone which is hearing the appeal. It is the requirement of the Court (and not of any of the parties) and the conscience of the Court feeling inhibits in satisfactorily disposal of the lis which rule the exercise of this power."
13 For the purpose of adjudication of the application under Order XLI Rule 27 CPC, it would not be out of place to reproduce the relevant provisions of the said Order, which provides as follows :
Production of additional evidence in Appellate Court. (1) The parties to an appeal shall not be entitled to produce additional evidence, ARCT No. 114/11 Page 11 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur whether oral or documentary, in the Appellate Court. But if
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any substantial cause, the Appellate Court may alone such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
14 The law regarding adducing of the additional evidence is very clear. The Hon'ble Supreme Court has been pleased to hold that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacuna in presenting its case and to fill in gaps. However, there are certain situations when the Court can allow the parties to adduce the additional evidence but strictly within the parameters of the Order 41 rule 27 CPC. The appellant has sought to adduce the evidence under sub rule (aa) of Order 41 rule 27 of CPC. The appellant is bound to establish that notwithstanding the exercise of due diligence, such evidence was not within its knowledge or could not, after the exercise of due ARCT No. 114/11 Page 12 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur diligence, be produced by it at the time when the judgment/decree appealed against was passed.
15 Additional evidence in appeal is to be taken strictly in accordance with the statutory provisions of Order 41 Rule 27 of the Code of Civil Procedure and not otherwise, as held in the Adil Jamshed Frenchman(D) by L.Rs. vs. Sardar Dastur School Trust & Ors., AIR 2005 SC 996 16 Additional evidence should not be permitted to be adduced when there was sufficient opportunity for the party to place the same before the Court below. There can be no justification to entertain the application under O.41 R.27 at a belated stage and it deserves to be rejected on this count alone. Party filing such an application has to establish with his best efforts that such additional evidence could not have been adduced at the first instance; secondly, the party affected by the admission of additional evidence, should have an opportunity to rebut such evidence; and thirdly, the additional evidence was relevant for determination of the issue. If any of the conditions is failing then the party concerned is not entitled to lead such evidence.
17 The Ld. counsel for the appellant/ applicant has placed on ARCT No. 114/11 Page 13 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur record the certified copy of the WS intending to be adduced as additional evidence. As per the record, the said WS is dated 14.05.2001 and copy whereof was applied on 22.09.2011 which was supplied on 26.09.2011 and the present application under Order 41 Rule 27 r/w Section 151 CPC has been moved on 28.04.2012. In this regard, in the matter of N. Kamalam (Dead) & Anr. Vs. Ayyasamy & Anr., (2001) 7 SCC 503, the Hon'ble Apex Court has been pleased to observe as under :
"Needless to record that the Court shall have to be conscious and must always act with great circumspection in dealing with the claims for letting in additional evidence, particularly in the form of oral evidence at the appellate stage and that too, after a long lapse of time. In our view, a plain reading of O.41 R. 27 would depict that rejection of the claim for production of additional evidence after a period of ten years from the date of filing of the appeal, as noticed above, cannot be permitted to be erroneous or an illegal exercise of discretion. The three limbs of Rule 27 do not stand attracted."
18 In this case, I have perused the record. It is mentioned that the Suit of Shri Bhanwar Singh has also been dealt by the office of the same Ld. Counsel who is handling this appeal. The judgment dated 15.10.2013 passed in Suit No. 119/02 clearly demonstrates that Sh. Rajendra Dutt, Adv., who is appearing in this appeal, was also dealing with the same. The ARCT No. 114/11 Page 14 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur application in hand has been signed only by the counsel for the appellant though supported by the affidavit of the attorney. The appellant was well aware through his counsel about the filing of the Written Statement. This Court after lapse of almost 13 years of the filing, cannot allow, at such belated stage, to file the same on record. The appellant has failed to establish despite his best efforts that such an additional evidence could not have been adduced at the time when the judgment was passed. It is evident that filing of WS was well within the knowledge of the counsel for the appellant. This fact was well within the knowledge of the appellant even before passing of the Judgment also. The appellant ought to have sought permission to bring on record the written statement by way of additional evidence before the Court of Ld. ARC, Delhi, even before the passing of Judgment, to prove the same but he failed to do so, which shows lack of due diligence on the part of the appellant.
19 Even otherwise, the WS is not relevant for the purpose of proper adjudication of the present appeal. It is stated by the Ld. counsel for the appellant that Vishwa Nath has expired. I am able to lay hands on the testimony of Vishwa Nath dated 22.07.1998 which has been relied upon by the Courts in case No.63/01 and Criminal Appeal No.95/2008, who stepped into the witness box in the Court at Delhi and made the statement as under : ARCT No. 114/11 Page 15 of 46
Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur "PW2. Biswa Nath son of Shri Mohan Lal, aged 50 years, r/o Ludhiana, Punjab on SA.
I was the attorney of Shri Makhan Singh and Tehal Singh who were the owners of the property No.26 & 27, Sawan Park Extension, Ashok ViharIII, Delhi52. I have seen the original sale deed which was executed by me on behalf of Makhan Singh and Tehal Singh. I identify their signatures on each page on the original, the certified copy of the same is Ex.PW2/1 and Ex.PW2/2 respectively (Original seen and returned). My signatures and thumb impression appears at point A1 to A12.
XXXXX Shri Makhan Singh and Shri Dehal Singh are residents of Amritsar and have left Delhi. The said property was given on rent by us to Shri Balbir Singh and others. They are still in possession. I know Hindi. I am not a summoned witness. I have come to depose on the request of plaintiff.
RO & AC CJ/Delhi,22.7.98
Sd/ in Hindi"
The said Vishwa Nath has already expired, as disclosed to this Court. He has given statement on oath, as discussed above, on 22.07.1998, and the contents of the Written Statement cannot be, even otherwise, relied upon, or has any relevance on the merits of this appeal, in view of above the statement of said Vishwa Nath given on oath on 22.07.1998 in the Court at Delhi.
ARCT No. 114/11 Page 16 of 46
Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur 20 Ld. counsel for the appellant/ applicant has relied upon the Judgments titled as 'Shalimar Chemical Works Ltd. Vs. Surendra Oil & Dal Mills (Refineries ) & Ors., VII (2010) SLT 635' and 'Malayalam Plantations Ltd. Vs. State of Kerala & Anr.,VIII (2010) SLT 452'. I have gone through the contents of the abovesaid Judgments relied upon by the applicant/appellant. In my opinion, the judgments relied upon by the appellant are not applicable in the present case being distinguishable on facts.
21 Even otherwise, the Written Statement sought to be brought on record as an additional evidence is not relevant for the proper adjudication of the present case.
22 In view of the above discussions, I am of the considered view that the application, in hand, is liable to be dismissed. Hence, the application under Order XLI Rule 27 r/w Section 151 CPC, filed by the appellant, is dismissed.
23 Now reverting to the facts of the present appeal, it is pertinent to mention here that none of the counsel for both the parties addressed arguments on merits regarding the grounds of eviction under Sections 14(1)(b), 14(1)(d) & 14(1)(h) of the DRC Act i.e., (i) subletting by the ARCT No. 114/11 Page 17 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur appellant, (ii) the appellant has already acquired and built his own residence at : 133, Sainik Vihar, Delhi, and (iii) neither the appellant nor any member of his family has been residing in the suit premises for more than six months. The only question involved in the present appeal is as discussed herein above and submitted by the Ld. counsel for the appellant and arguments addressed by the Ld. counsel for both the parties is "Whether the respondent is landlady in view of the sale deed or not." 24 During the course of arguments, Ld. counsel for the appellant submitted that the petitioner along with other persons including her General Power of Attorney, Sukhdayal Singh, Vishwa Nath and others got executed bogus, forged and fabricated General Power of Attorney on behalf of bogus persons namely Tahal Singh and Makhan Singh in favour of Vishwa Nath, and subsequently on the strength of bogus and fabricated Power of Attorney, got the Sale Deed of property in suit executed through Vishwa Nath in favour of the petitioner. It is further submitted that on the complaint, an FIR U/s FIR No.15/2001 U/s 420/465/467/468 & 471 IPC was registered with Police Station : Kotwali, Amritsar, Punjab which was relating to the acts of criminal conspiracy, forgery of documents in favour of Vishwa Nath in September, 1996 allegedly by one Tehal Singh and one Makhan Singh, both sons of Sawan Singh, in favour of Vishwa Nath, and the said Vishwa Nath is the person who became attorney of Tehal Singh, above named and sold the ARCT No. 114/11 Page 18 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur property in suit to the petitioner. It is further contended on behalf of the appellant that the FIR was registered against the petitioner, Vishwa Nath, Sukhdayal Singh and others and against those persons who were party to the execution of forged and fabricated documents including the Power of Attorney, at Amritsar. However, the Ld. counsel for the appellant conceded at bar that all the accused persons in the said FIR have already been acquitted of the charges framed against them by the Court of the Ld. Judicial Magistrate First Class, Amritsar vide Judgment dated 16.01.2008; and that later on, the appeal against the said Judgment was dismissed by the Ld. Additional Sessions Judge, Amritsar, Punjab vide Judgment dated 19.10.2011. However, the Ld. counsel for the appellant submitted that the decision of the Criminal Court cannot be relied on as one binding in Civil action (as held in Krishnan Asari and Anr. Vs. Adaikalam and Ors., AIR 1966 Madras 425 (V 53 C 136). It is further submitted by the Ld. counsel for the appellant that a Judgment of acquittal in a criminal Court is irrelevant in a Civil suit based on the same cause of action, just as a Judgment of conviction cannot, in a subsequent civil suit, be treated as evidence of facts on which the conviction is based. The Civil Court must independently of the decision of the criminal Court investigate facts and come to its own finding( as held in AIR 1962 Rajasthan 127 (V 49 C30). 25 Ld. counsel for the appellant further submitted that in order to ARCT No. 114/11 Page 19 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur get relief regarding the eviction of the respondent from the property in dispute, the petitioner is required to prove that the Sale Deed Ex.AW1/1 purported to have been executed in her favour by operation of law; further that the petitioner has not produced any evidence regarding the fact that the power of attorneys by persons, namely, Makhan Singh and Tehal Singh in favour of Vishwa Nath were genuine and that those persons were residents of the addresses given in the power of attorneys executed in favour of Vishwa Nath, who on the strength of the said Power of attorney, executed Sale Deed Ex. AW1/1 in favour of the petitioner and on the other hand, the respondent has produced evidence as well as RW3 ASI Vishwa Nath of P.S. Kotwali who has proved the aforesaid facts to the hilt and therefore, the eviction petition is liable to be dismissed on this score alone. It is further argued on behalf of the appellant that the petitioner produced AW1 Ram Singh, an official from the office of the Sub Registrar, regarding certified copy of the Sale Deed AW1/1 purported to be on behalf of Vishwa Nath as attorney of Tehal Singh in favour of petitioner Smt. Har Charan Kaur and AW2 Dalbir Singh from the office of the Delhi Vidyut Board, produced documents of the year 1971; further AW3 Sukhdayal Singh who was also accused along with the petitioner in the aforesaid criminal case and also soninlaw of the petitioner; and further AW4 Satbir Singh from the office of Jal Board. He further submitted that the abovesaid witnesses do not prove the case of the petitioner either with regard to the Sale Deed or with ARCT No. 114/11 Page 20 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur regard to the material facts that the General Power of Attorney in favour of Vishwa Nath as well as the Sale Deed Ex.AW1/1 were genuine and thus the petitioner failed to prove that she is owner and has become landlady. It is further argued on behalf of the appellant that the respondent produced himself as RW1, RW2 Ram Bachan Yadav and RW3 ASI Vishwa Nath, RW4 Dev Giri and RW6 Puran Mal Sharma regarding the criminal case and execution of the Power of Attorney in favour of Vishwa Nath by Tahal Singh at Amritsar in September, 1996 and that said Vishwa Nath being attorney sold the property of Tehal Singh to the petitioner but he was not produced as a witness in the Court; that the entire evidence produced by the petitioner has failed to prove that she acquired ownership vide AW1/1 or that she is entitled to seek eviction of the respondent and further that the petitioner did not come in the witnessbox and the attorney AW3 Sukhdayal has no authority to depose in favour of the petitioner and further that Vishwa Nath who executed Sale Deed Ex.AW1/1 in favour of the petitioner had filed written statement in the Court of Ms. Sunita Gupta, the then Ld. ADJ admitting therein that he was victim of the criminal conspiracy hatched by the petitioner.
26 On the other hand, Ld. counsel for the respondent, during the course of arguments, submitted that Judgments in the criminal case on the same facts can be considered by this Court on the point of appreciation of ARCT No. 114/11 Page 21 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur facts. Ld. counsel for the respondent further submitted that the order of the Ld. ARC, Delhi is well reasoned order and that the Ld. ARC, Delhi has taken into consideration all the relevant facts, evidence and the documents while holding that the respondent is the landlady of the suit premises. It is further submitted that vide Judgment dated 20.03.2004, the Ld. ARC, Delhi has been pleased to hold that the petitioner has proved on the basis of the evidence on record that the petitioner, now the respondent before this Court, is the owner of the suit premises and the respondent was the tenant. 27 In the light of the above submissions, I have carefully perused the record including the Appeal, reply to the Appeal, Trial Court Record, Written Arguments and Judgments filed and relied upon by both the parties. 28 In view of the facts of the case and evidence available on record, observations of the Ld. Trial Court and proposition of law in this regard, I deem it appropriate to analyse the appeal under the following three broad categories :
A. Consideration of the present appeal U/s 38 of the DRC Act;
B. Evidence available on record and findings of the Ld. Trial Court thereon, and C. Statutory provisions available/ applicable in this regard.
ARCT No. 114/11 Page 22 of 46
Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur A. Consideration of the present appeal U/s 38 of the DRC Act
29 It is well settled proposition of law that under Section 38 of the DRC Act, the Addl. Rent Control Tribunal is to act as an Appellate Court only on a question of law. In this regard, in 'Ram Dulari thru. L.Rs'. Vs. Om Parkash Gupta and Anr. MANU/DE/1017/2010, our Hon'ble Delhi High Court has been pleased to observe as under :
"12. I also consider that the learned Additional Rent Control Tribunal exceeded its jurisdiction by entering into an area which was prohibited. It is prohibited for Additional Rent Control Tribunal to reappreciate the facts and change the finding of fact given by Additional Rent Controller."
30 Also, in Kulwant Singh and Anr. Vs. Arjun Singh MANU/DE/9677/2006, our Hon'ble Delhi High Court has been pleased to observe as under :
"7. If the matter is examined in terms of aforesaid, it will be found that it is not the function of this Court to re appraise the evidence. There are concurrent findings by both the courts below, i.e., the ARC and the ARCT. In fact, under Section 38 of the said Act, the ARCT is to act as an Appellate Court only on a question of law."
31 Furthermore, in Dr. Mrs. Sushil Puri and Ors. Vs. Shri Jai Gopal and Ors.MANU/DE/9637/2006, our Hon'ble Delhi High Court has ARCT No. 114/11 Page 23 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur been pleased to observe as under :
"9. An important aspect which cannot be lost sight of is that the legislature in its wisdom has amended the said Act whereby the appeal to the Tribunal under Section 38 of the said Act has been confined to only a question of law."
32 And also, in Smt. Kiran Sajjan and Ors. Vs. Smt. Swarnkanta Mahajan MANU/DE/9022/2006, our Hon'ble Delhi High Court has been pleased to observe as under :
"5. It cannot lose sight under the provisions of the said Act that the appeal lies to the Tribunal under Section 38 of the said Act only on a question of law. This was in terms of the legislative intent as a conscious decision in December, 1988 prior whereto the appeal was both on an error of law. These aspects have been emphasised to set forth the contours within which the impugned orders have to be scrutinised."
33 Since the present matter has been remanded back to this Court by the Hon'ble High Court of Delhi while disposing of the CM(M) No.1417/05 on 21.09.2011 with directions to decide the same on the basis of evidence already available before the Court, re examine the evidence and pass a reasoned and speaking order on the eviction petition of the landlord, vide order dated 21.09.2011, the only legal question involved in the present appeal "Whether the respondent is landlady in view of the sale deed or not" ARCT No. 114/11 Page 24 of 46
Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur can be considered, in the light of above.
Regarding the issues involved in the present appeal, the proposition of law laid down by the Hon'ble Superior Courts are being discussed herein below for ready references
34 The doctrine of estoppel applies where the tenant has been let into possession by the landlord. But where the landlord did not himself induct the tenant into the land but claims his position under a derivative title i.e., as assignee, donee, vendee, lessee, heir etc., there is no estoppel against the tenant. So, a tenant already in possession is entitled to show that the plaintiff does not possess the derivative title he claims, but it is in some other person as long as he has not attorned to him or paid any rent to him. The tenant petitioner, in his written statement filed in the release application that the shop was let out to the predecessor of the tenant by grandfather of the plaintiff, now respondent before this Court. In the written statement exclusive title of grandfather was not denied. If there was any denial of title either of the plaintiff or his father, then it was only denial of derivative title and not denial of title of the landlord who let out the shop to the ancestor of petitioner. It was, therefore, not hit by the doctrine of estoppel provided for under Section 116 of the Evidence Act. The claim of the transferee having derived a good title from the original landlord is concerned, the same does ARCT No. 114/11 Page 25 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur not come under the protection of the doctrine of estoppel and is vulnerable to a challenge. The tenant is entitled to show that the plaintiff has not as a matter of fact secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason which renders the transfer non existent in the eye of law.
35 It is well settled proposition of law that the decision of the Criminal Court cannot be relied on as one binding in Civil action. Equally the findings in a civil proceeding are not binding on subsequent prosecution founded upon the same or similar allegations. (as held in Krishnan Asari and Anr. Vs. Adaikalam and Ors., AIR 1966 Madras 425 (V 53 C 136). A judgment of acquittal in a criminal Court is irrelevant in a civil suit based on the same cause of action, just as a judgment of conviction cannot, in a subsequent civil suit, be treated as evidence of facts on which the conviction is based. The Civil court must independently of the decision of the criminal court investigate facts and come to its own finding (Onkarmal and another vs. Banwarilal and others, AIR 1962, Rajasthan 127 (V 49 C 30)). 36 Under Section 43 of the Indian Evidence Act, the Judgment of the Criminal Court can be used only to establish the fact that an acquittal has taken place as a fact in issue in the subsequent civil suit. The civil Court cannot take into consideration the grounds upon which the acquittal ARCT No. 114/11 Page 26 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur was based. It lies upon the civil Court itself to undertake an entirely independent enquiry before satisfying itself of the absence of reasonable and probable cause. The standard of proof for imposing liability is widely different between the civil and criminal Courts and while in a civil suit, a defendant can be made liable on probabilities or the action decided on a mere consideration of the burden of proof in the absence of other evidence, no accused can be convicted on such uncertain grounds. In a civil suit the decisions in criminal cases relating to the subject matter of the suit cannot be relied upon. Civil Court is not bound to adopt the view of the criminal court as to the genuineness or otherwise of a document. A judgment of acquittal in a criminal Court is irrelevant in a civil suit based on the same cause of action, just as a judgment of conviction cannot, in a subsequent civil suit, be treated as evidence of facts on which the conviction is based. The Civil court must independently of the decision of the criminal court investigate facts and come to its own finding. A judgment in a criminal case is admissible to show what order was made, who the parties to the dispute were, what the land in dispute was and who was held entitled to possession. The decision of the criminal Court does not operate as res judicata in a civil suit in respect of the same cause of action. The decision of the criminal Court is not binding upon this Court and the civil Court itself has to undertake an entirely independent enquiry and come to its own findings.
ARCT No. 114/11 Page 27 of 46
Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur 37 Furthermore, it is well settled proposition of law that a criminal case does not affect the merits of the civil or eviction case. It is also well settled principle of law that once a tenant is always a tenant. It was held in the matter of Smt. Shanti Devi Vs. Smt. Ved Prabha, AIR 1987 Supreme Court 2028 "what appears to be the meaning of the term 'owner' is visavis the tenant i.e., the owner should be something more than a tenant." It is also evident from the record that the respondent has not filed any suit for getting declared the sale deed in favour of the petitioner as null and void. 38 Now reverting to the facts of the present case, I have perused the pleadings, evidence and the documents proved on record in compliance of the directions of the Hon'ble High Court of Delhi dated 21.09.2011 in CM(M) 1417/05.
B. Evidence available on record and findings of the Ld. Trial Court thereon 39 In support of her case, the petitioner has examined four witnesses whose testimonies are being discussed herein below :
AW1 Sh. Ram Singh: This witness is a UDC in the office of the Sub Registrar, SDVIB, Pitampura, Delhi, who has brought the summoned record relating to the Sale Deed executed by Sh. Vishwa Nath as General Attorney of Sh. Tehal Singh in favour of Smt. Harcharan Kaur and ARCT No. 114/11 Page 28 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur he has proved the certified copy of the sale deed Ex. AW1/1 in respect of the suit property which was got executed in their office and was registered as document No. 8932 in Addl. Book No.1, Vol. No.461 at Page No.10 to 14 on 22.10.1997. He has identified the signature of the concerned Sub Registrar who accepted the documents for registration as AW1 had worked with him. He has been cross examined by the Ld. counsel for the respondent but nothing contrary has come on the record.
AW2 Sh. Dalbir Singh: This witness is a Senior Clerk in the office of DVB, Keshav Puram, Delhi. He inter alia testified that he has brought the summoned record relating to Connection bearing K No.600729 which was sanctioned in the name of Capt. Balbir Singh and further that he has applied the same as a tenant; further that he has brought the original file containing the said rent receipt and document in Urdu, photocopy of the said rent receipt, documents and receipt of payment Ex.AW2/1 to Ex.AW2/3 respectively which are maintained in their regular course of official duties and are correct. He has been cross examined by the Ld. counsel for the respondent but nothing contrary has come on the record. He inter alia, during the course of cross examination, stated that he does not know Sh. Balbir Singh Rana personally and he admitted that Sh. Balbir Singh Rana has not given the application for sanctioning electric connection to him. He denied that Sh. Balbir Singh Rana had never applied for electric connection as a tenant.
ARCT No. 114/11 Page 29 of 46
Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur AW3 Sh. Sukh Dayal Singh This witness is soninlaw and the general attorney of the petitioner. Besides his categorical testimony, he has proved the power of attorney Ex. AW3/1, certified copy of the khatoni Ex. AW3/2, certified copy of the sale deed in the name of Sh. Tehal Singh in respect of the plot Ex. AW3/3 and also proved the site plan of the suit property Ex. AW3/4. He has categorically and unambiguously proved on record that the property in question was owned by Sh. Tehal Singh as per revenue record and through sale deed Ex. AW3/3 and Sh. Tehal Singh sold the property to the petitioner. He has been cross examined by the Ld. counsel for the respondent at length. During the course of such cross examination, he stated that statement of Vishwa Nath, if any is incorrect to the effect that they have taken him to Amritsar by taking undue advantage of his drinking habit and by producing fictitious person by the name of Makhan Singh and Tehal Singh and got a general bogus power of attorney prepared and got executed in his favour in order to grab the property in suit. Despite his lengthy cross examination, his testimony remained unshaken, unambiguous and beyond all probable doubts and nothing contrary has come on the record which can support the case of the respondent to any extent.
AW4 Sh. Satbir Singh Rathi This witness is a UDC in Delhi Jal Board. He has testified that the summoned record from their office was not traceable as the same destroyed in the flood of the year 1979. ARCT No. 114/11 Page 30 of 46
Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur Opportunity to cross examine this witness was given to the respondent but the same was recorded as nil.
40 In support of his case, the respondent has examined six witnesses whose testimonies are being discussed herein below :
RW1 Sh. Balbir Singh Rana: He is the respondent in the eviction petition. During the course of proceedings of the eviction petition before the Ld. Trial Court, appeared in the witness box and tendered his evidence by way of affidavit. He has been cross examined at length by the Ld. counsel for the petitioner. During the course of cross examination, he, inter alia, testified that he could not say how the Khatoni Ex. AW3/2 exist in the name of Tehal Singh; and that he did not know if the sale deed of the property does not exist in his name, and further he could not say about the sale deed Ex.AW3/3 in the name of Sh. Tehal Singh executed by Sh. Tulsi Ram Seth. Furthermore, he denied that he was a tenant in the property; and further he stated that he had taken his electricity connection in the property; and further stated that he did not know about he affidavit Ex.AW2/1 of Tehal Singh submitted in the office of DESU. He denied that the connection was taken as a tenant; and further that he knew Ram Kumar who was initially working with him and that he never gave any attorney to Sh. Ram Kumar and that Deva Giri was his attorney.
ARCT No. 114/11 Page 31 of 46
Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur RW2 Ram Bachan Yadav, during the course of proceedings of the eviction petition before the Ld. Trial Court, appeared in the witness box and tendered his evidence by way of affidavit. He has been cross examined at length by the Ld. counsel for the petitioner. During the course of cross examination, he, inter alia, categorically admitted that the entire area of the property was owned by Sh. Tulsi Ram Seth and sh. Tulsi Ram Seth had sold the property to Sh. Tehal Singh and Makhan Singh; and that he had not seen document of property in the name of Balbir Singh and further that he did not know if Balbir Singh was a tenant (respondent) of Sh.Tehal Singh for a monthly rent of Rs.75/; and further that the documents Ex.RW2/1 to Ex.RW2/3 were prepared on the one date. He further admitted that an order of eviction was passed against Bhanwar Singh and Risal Singh and Smt. Harcharan Kaur had received the possession. He further testified that he did not know any person by the name of Vishwa Nath or his job.
RW3 Sh. Vishwamitra is the IO of the criminal case registered with Police Station Kotwali, Amritsar, Punjab.
RW4 Sh. Deva Giri and RW5 Sh. Uday Chand have stated that one Mr. Maha Singh was having the possessory title in the suit property. But these witnesses and the appellant have failed to produce any evidence/ document that Maha Singh was the owner of the suit property. Both the said ARCT No. 114/11 Page 32 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur witnesses have been cross examined at length by the Ld. counsel for the petitioner.
RW6 Sh. Puran Mal Sharma He is a witness from the House Tax Department. He testified that he had brought the summoned record and as per their record, the mutation of the House Tax Assessment is in the name of Sh. Balbir Singh and further that Ex.RW4/1 was issued by thier office and further that previously, as per the Assessment file, the property was in the name of Sh. Maha Singh. He has been cross examined at length by the Ld. counsel for the petitioner.
41 The Ld. Trial Court has taken into consideration the entire evidence including the testimony of AW1 Sh. Ram Singh, UDC, who has proved the certified copy of the Sale Deed in respect of the suit property Ex.AW1/1. In view of the statement of AW1 and the cross examination, it stands proved that the Sub Registrar registered the Sale Deed AW1/1 during the course of his regular official act and it can be presumed to have been regularly done since there is nothing contrary on record proved by the respondent. In this case it can be presumed that in view of the above observations that the Sub Registrar concern followed all the formalities and registered the sale deed as per rules during general course of business/ office which he regularly performs. As nothing could be pointed out and has been proved otherwise by the appellant regarding the registration of the ARCT No. 114/11 Page 33 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur sale deed Ex.AW1/1 before the Sub Registrar.
42 The petitioner also examined AW2 Sh. Dalbir Singh, an official from DVB to prove the electricity connection was sanctioned in the name of the respondent who applied for the same as a tenant and also proved the photographs of the rent receipts and the affidavit Ex.AW2/1 to Ex.AW2/3. The Ld. Trial Court has also taken into consideration the testimony of AW3 Sukhdayal Singh, as her attorney, to prove his attorney Ex.AW3/1, certified copy of the Khatoni Ex.AW3/2, certified copy of the sale deed in the name of Tahal Singh in respect of this plot Ex. AW3/3 and also proved the site plan of the suit property Ex.AW3/4; and he has proved on record the fact that the property in question was owned by Tahal Singh as per revenue record and through the sale deed Ex.AW3/3 and that Tahal Singh has sold the same to the petitioner through sale deed Ex.AW1/1. 43 The Ld. Trial Court has also taken into consideration the testimonies of RW4 Deva Giri and RW5 Uday Chand and pleased to observe that RW4 and RW5 have stated that the owner of the suit premises was one Maha Singh who sold the property to the appellant but the appellant has failed to produce any evidence that Maha Singh was the owner of the said plot. On the other hand, the respondent has proved that Tehal Singh and Makhan Singh were the owners of the suit premises and she purchased the ARCT No. 114/11 Page 34 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur property from them. The respondent has also proved the certified copy in favour of Tehal Singh Ex.AW3/3, the certified copy of the Khatoni is Ex.AW3/2. The respondent has duly proved that the previous owner of the suit premises was Sh. Tehal Singh and she purchased the property from Sh. Tehal Singh vide sale deed Ex.AW1/1. The statement of the appellant and his witnesses cannot be believed that Maha Singh was the owner of the suit premises as he has failed to produce any document regarding the ownership of Maha Singh. AW2 has proved that the respondent applied for electricity connection as a tenant. The respondent has claimed that he has paid the house tax and revenue record of the property is in his name. RW6 has admitted in his cross examination that a writ No.5635 of 1999 was filed by Smt. Harcharan Kaur and the order RW6/P2 was passed. He has admitted that as per the record there is a sale deed filed in the office which was executed by Vishwa Nath as attorney of Sh. Tehal Singh in favour of Smt. Harcharan Kaur. He has also admitted that there is application pending for mutation in the name of Smt. Harcharan Kaur. RW6, an official from MCD Department, admitted in his cross examination that there had been an order passed by the Hon'ble High Court directing them(MCD) for consideration of the mutation application of the petitioner. He also admitted that there is no sale deed in the name of Balbir Singh in their record. He also admitted, after reading annexure to the sale deed, that the property was sold by Sh. Tulsi Ram in favour of Sh. Tehal Singh. He has also admitted during ARCT No. 114/11 Page 35 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur the course of cross examination that there is a rent receipt on their record in the name of Sh. Balbir Singh. Therefore, the respondent has proved that the appellant was a tenant in respect of the suit premises. 44 On the point of execution of sale deed, proof, in the matter of P. Haokip v. D. Paite, AIR 2003 Gau 44 (47), the Hon'ble Gauhati High Court has been pleased to observe as under :
"Where execution of sale deed was proved by the vendee by producing clear and unambiguous evidence of attesting witnesses, and it was no challenged by the vendor nor any cross case was filed by him, the finding of lower appellate court against the vendor was not perverse or based on surmises to warrant interference in second appeal on the denial of sale deed by the vendor."
45 The appellant has not filed any suit for the relief of declaration in any Civil court of competent jurisdiction challenging therein that the sale deed dated 14.08.1997 regarding property Nos. 26, Sawan Park Extension, Delhi is illegal, forged or fabricated and that the appellant is the owner of the suit premises. The petitioner has been able to prove the execution of the Sale Deed by producing clear and unambiguous evidence, however, on the other hand, no cross case was filed by the appellant, the findings of the Ld. ARC against the appellant to the extent that the petitioner is a landlady of the suit premises are not perverse or based on surmises to warrant ARCT No. 114/11 Page 36 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur interference in this appeal herein before this Court. 46 In view of the ongoing discussions, I would like to say that I do not find any infirmity in the Judgment passed by the Ld. ARC, Delhi holding that the petitioner has proved that she is the owner/landlady of the suit property and the respondent is the tenant.
47 Hence, in view of the above facts, I do concur with the findings of the Ld. ARC, Delhi that the respondent is the owner/landlady of the suit premises and accordingly hold that the respondent is the owner/landlady of the appellant in view of the Sale Deed Ex.AW1/1.
C. Statutory provisions available/ applicable in this regard. 48 Ld. counsel for the respondent has filed copy of the Judgment on record in the case titled as 'Shri Bhanwar Singh vs. Smt. Harcharan Kaur & ors. having new Suit No. 119/02' which was a suit for declaration with consequential relief of possession and for recovery of damages of Rs.1,00,000/ filed by the plaintiff against the defendant regarding plot No.27, comprising of Khasra No.781/659, Sawan Park Extension, Delhi which was dismissed by the Ld. SCJ/RC(West), Delhi vide Judgment dated 15.10.2013. Ld. counsel for the respondent further submitted that the Hon'ble High Court in CM1492/2000, CM(M) 543/2000 and CM ARCT No. 114/11 Page 37 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur 1491/2000 titled as Bhanwar Singh Vs. Smt. Harcharan Kaur & Anr., which was preferred by one of the tenants of the respondent wherein the Hon'ble High Court of Delhi has been pleased to hold that the respondent no.1 has been able to show that she is the landlady and the owner of the suit premises. In view of the clear findings of the Hon'ble High Court of Delhi in the petition preferred by tenant Sh. Bhanwar Singh, the same is binding in this case also as the Sale Deeds executed in favour of the respondent regarding the properties No.26 & 27, Sawan Park Extension, Delhi, were executed by the same attorney on the same day in the presence of the same witnesses. The word transaction in S. 13 of the Indian Evidence Act includes judgments. Judgments not inter partes are admissible as evidence either as transactions or instances. Hence , in view of the above discussion, the Judgment of His Lordship Hon'ble Mr. Justice Madan B. Lokur, the then Judge, Hon'ble High Court (now elevated as the Judge, Hon'ble Supreme Court of India) in CM1492/2000, CM(M) 543/2000 and CM1491/2000 titled as Bhanwar Singh Vs. Smt. Harcharan Kaur & Anr., which was preferred by one of the tenants of the respondent, wherein Their Lordship has been pleased to hold that the respondent has been able to show that she is the landlady and the owner of the suit premises, is also applicable in this case. The presumption arises that once the Hon'ble High Court has been pleased to hold that the Sale Deed executed in favour of the respondent in another case between the tenant and the respondent that the respondent is ARCT No. 114/11 Page 38 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur landlady of the suit premises situated at 27, Sawan Park Extension, Delhi, the same presumption also arises regarding the transaction and the sale deed in question regarding this property i.e., 26, Sawan Park Extension, Delhi that the respondent is also the owner and landlady of the suit premises in question.
49 Now, let us examine the question involved in this appeal from one another angle. Illustration (e) of Section 114 of the Indian Evidence Act which is related to Performance of Judicial and Official Acts clearly lays down that "the rule embodied in this illustration is a particular application of the maxim "omnia praesumuntur rite esse acta" i.e. all acts are presumed to have been rightly and regularly done. This presumption is chiefly applied to judicial and official acts. The presumption under Section 88 is another presumption in favour of regularity of acts. As to presumption from regular course of business (s.16). Presumption of this nature with regard to documents, are to be found in Sections 7986. Under Section 57 (7), judicial notice is to taken of holding of offices if the fact of appointment is notified in official gazettes. The matters of judicial record are unquestionable inasmuch as they are not open to doubt. The illustration contained in Section 114 (e) of the Indian Evidence Act simply means that if an official act is proved to have been done, it would be presumed to have been regularly done. The presumption under Section 114(e) could only be ARCT No. 114/11 Page 39 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur nullified by clear and cogent evidence to the contrary. Presumption under Section 114 will came into aid to the party if the party proves the fact that the judicial or official act has been in effect done or performed". 50 Once the prosecution shows that regular entries were made in public document the legal presumption would be that official acts must have been duly performed (Sonelal vs. S, A 1978 SC 1142). The party relying upon the presumption, should at least show that the order on the face of it is regular and is in conformity with the provisions of the statute (Collr. Of Customs vs. Digvijay, A 1961 SC 1549). An official letter from the Home Dept stating that the Governor has been pleased to grant sanction to prosecute certain persons raises a presumption that the official act was regularly performed (Tulsiram v. S. A 1963 SC 666). Order of State Government communicated by telegram containing clear averment as to the existence of the order although neither expressed in the name of the Governor nor properly authenticated by proper authority must be presumed to have been validly passed (Barada vs. Board of Rev, A 1967 A22). 51 If an official act is proved to have been done, it will be presumed to have been regularly done. But where under an Act certain preliminary things are required to be done before any liability attaches to any person in respect of any right or obligation, it is for the person who ARCT No. 114/11 Page 40 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur alleges that that liability has been incurred to prove that the things prescribed in the Act have been actually done.
52 It is to be noted that the deposition of AW1 and AW2, as discussed herein above, proves that the record was being maintained by them during the official course of duties and there is nothing contrary on record which may impeach the credibility of deposition of these witnesses. 53 In the matter of Devender Pal Singh v. State of NCT of Delhi, (2002) 5 SCC 234, the Hon'ble Apex Court has been pleased to observe that there is a statutory presumption under Section 114 of the Evidence Act that judicial and official acts have been regularly performed. The accepted meaning of Section 114(e) is that when an official act is proved to have been done; it will be presumed to have been regularly done. The presumption that a person acts honestly applies as much in favour of a Sub Registrar etc., as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor.
Presumption is not in itself evidence Presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies. When presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on ARCT No. 114/11 Page 41 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur proof of certain facts. But when it is rebuttable, it only points out the party on whom lies the duty of going forward with evidence on the fact presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of presumption is over. Then the evidence will determine the true nature of the fact to be established. The rules of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of fact and circumstances; as held in the case titled as M/s Sodhi Transport Co. v. State of UP, AIR 1986 SC 1099.
The Court will presume an ostensible title to be the real title holder unless the party who seeks to assert the contrary, pleads and proves that ostensible owner is not the real owner (Ramkunwarbai v. Ranibabu, AIR 1985 MP 73) 54 So far as the principles and scope of Section 16 of the Indian Evidence Act are concerned, this section lays down that whenever it is necessary to prove that an act was done, the existence of a general course of business or office (public or private) according to which it naturally would have been done, is a relevant fact and proof of it is admissible. When the course of business usually followed is proved the probability is that there was no departure from the common course of business in the particular transaction. In the case of public offices like the post office, where work is ARCT No. 114/11 Page 42 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur carried on with almost mechanical regularity, the probability becomes stronger that the letter was despatched in due course or reached destination. The subjectmatter of this section partly comes under the head of 'presumption'. The expression "course of business" is also used in S. 32(2) and S. 114. S.114 illustration (f) lays down that the Court may presume that the common course of business has been followed in particular case. As soon as the course of business is established, there is a presumption that the act in question was done in pursuance thereof. It is a rebuttable presumption. Whether the inference should or should not be drawn depends largely on the circumstances of each case. Several presumptions are frequently made from the regular course of business in a public office. 55 Now reverting to the evidence on record, the Sale Deed regarding the property No. 26, Sawan Park Extension, Delhi was registered on 14.08.1997. I have perused both the Sale Deeds i.e., regarding the property No. 26, Sawan Park Extension, Delhi and regarding the property No. 27, Sawan Park Extension, Delhi and it is reflected that both the Sale Deeds were registered on 14.08.1997, executed by the same person Vishwa Nath as attorney of two different persons before the same Sub Registrar, Stamp papers bearing the same day of purchase in both the Sale Deeds and the same bear the same date of registration and the signatures of the same SubRegistrar. The record of the property No. 27, Sawan Park Extension, ARCT No. 114/11 Page 43 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur Delhi has also been placed on record of the present appeal, which has been upheld by the Hon'ble High Court also, reflects that the respondent no.1 is the landlady and owner of the property. Hence, presumption also arises in view of the above discussion that this Sale Deed was also executed by the same person in presence of the same witnesses before the same Sub Registrar regarding the property No. 26, Sawan Park Extension, Delhi. Hence, a presumption arises that the Sale Deed regarding the property No. 26, Sawan Park Extension, Delhi was also executed and registered in the general course of official work and there was no departure from common course of business in the registration of the sale deed during the official course of duties by the SubRegistrar, taking into consideration the findings of the Hon'ble High Court of Delhi and execution as well as registration of the sale deed regarding the property No. 27, Sawan Park Extension, Delhi. 56 In view of the above discussions regarding presumption in the aforesaid paragraphs, Ex. AW1/1 clearly proves that the sale deed Ex.AW1/1 was registered in the office of the Sub Registrar and there is nothing on record that any procedure was not followed. The illustration (e) contained under Section 114 of the Indian Evidence Act provides that it would be presumed to have been regularly done. There is no evidence against the appellant which could nullify such presumption. The petitioner has been able to show, in view of the evidence, that the Sale Deed Ex.AW1/1 has ARCT No. 114/11 Page 44 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur been duly executed and registered before the Sub Registrar in the Sub Registrar's regular course of official working and in conformity with the statutory presumption. In view of the statutory presumption that the judicial and official acts have been regularly performed by the Sub Registrar, there is no departure from the common course of the business in the particular transaction. Hence, it stands duly proved, beyond all probabilities of doubts, that the Sale Deed Ex.AW1/1 was duly executed and registered before the Sub Registrar which clearly proves that the respondent/ petitioner is the owner/landlady of the suit premises i.e., Premises No.26, Sawan Park Extension, Ashok Vihar, Delhi.
57 It is held in the Wg. Com(R) RN Dawar vs. Ganga Saran, 1994, RLR. (N) 7 that "Men may utter falsehood but documents cannot." 58 It is also well settled proposition of law that registration of sale deed itself is notice of the sale to the person affected by the sale, as held in the case cited as AIR 1964 All 425(426).
59 In view of the above observations, I do not find any flaw in the impugned Judgment dated 20.03.2004 delivered by the Ld. Additional Rent Controller, Delhi and I do concur with the findings of the Ld. Trial Court. Accordingly, I hold that the respondent is the owner/landlady and the ARCT No. 114/11 Page 45 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur appellant is the tenant in respect of the suit premises i.e., Premises No.26, Sawan Park Extension, Ashok Vihar, Delhi.
60 Hence, I do not find any reason to interfere in the findings of Ld. Trial Court. I see no substance in this appeal as nothing could be pointed out from the contentions of the appellant.
61 In the result, I hold that this appeal is devoid of any merits, and is, accordingly, dismissed. However, parties are left to bear their own costs. Record of the Trial Court be sent back along with an attested copy of the Judgment passed today.
62 Appeal file be consigned to Record Room, after completing the necessary formalities.
Announced in the open Court today 22nd day of January, 2014 (CHANDER SHEKHAR) Distt. & Sessions Judge (NorthWest) Rohini Courts, Delhi ARCT No. 114/11 Page 46 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur ARCT No. :114/11 22.01.2014 Present: None Vide separate order of the even date, dictated and announced in the open Court, the application under Order XLI Rule 27 r/w Section 151 CPC and the appeal are dismissed. However, parties are left to bear their own costs. Record of the Trial Court be sent back alongwith an attested copy of the order passed today. Appeal file be consigned to Record Room, after completing the necessary formalities.
(CHANDER SHEKHAR) Distt. & Sessions Judge (NorthWest) Rohini Courts, Delhi ARCT No. 114/11 Page 47 of 46 Sh. Balbir Singh Rana Vs. Smt. Harcharan Kaur ARCT No. 114/11 Page 48 of 46