Delhi District Court
Sh. Rajesh Narain Sharma vs Sh. K. R. Saini on 2 January, 2012
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IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE12(CENTRAL)
TIS HAZARI COURTS, DELHI.
Civil Suit No.: 85/07
Unique ID no. 02401C0716672005
Sh. Rajesh Narain Sharma
S/o Late Shiv Swarup Sharma
R/o H. No. 16/226, Gali No. 8,
Joshi Road, Karol Bagh,
New Delhi110005. ...Plaintiff
Versus
1. Sh. K. R. Saini
S/o Late Sh. M. P. Saini.
2. Smt. Joginder Kaur
W/o Sh. K. R. Saini
Both residents of :
B54, Katyani Vihar,
Rajeev Nagar Extension,
Begumpur, Delhi, 110041. ...Defendants
Date of institution of the suit: 08.08.2005
Reserved for judgment on: 23.12.2011
C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 1 of 36
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Date of pronouncement of judgment: 02.01.2012
Suit for declaration, cancellation, possession & damages
JUDGMENT:
1. The plaintiff in this suit for declaration, cancellation, recovery of possession and damages has propounded his cause of action on the following bundle of facts: PLEADINGS
(i). The plaintiff is the sole and absolute owner of immovable property bearing no. A20, measuring about 200 sq. yards at Katyani Vihar, Rajeev Nagar Extension, Begumpur, Karala, Delhi41 more specifically shown in the site plan annexed herewith.
(ii). The entire land over which the aforesaid colony named as Katyani Vihar is situated was purchased by the plaintiff for a lawful consideration from its previous owner Sh. Risala S/o Sh. Barkat Ram R/o Village Karala, Delhi vide sale deed dated 05.01.1990 duly registered with the C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 2 of 36 3 office of SubRegistrar, Delhi. The suit property forms only a part of this entire land / colony developed by the plaintiff.
(iii). The plaintiff after purchasing the suit property in the year 1990, laid the foundation of the suit property upto the plinth level and constructed a boundary wall.
(iv). The defendants in connivance with other conspirators by taking undue advantage of their round the clock presence in the locality coupled with the fact of absence of the plaintiff, encroached upon and illegally occupied the possession of the suit property in the month of September, 2003.
(v). The defendants no. 1 & 2 are in authorised and illegal possession of the aforesaid property and when the plaintiff objected to their illegal and unauthorised possession, the defendants started claiming to be the owners of the aforesaid property, purportedly on the basis of certain title documents viz. Agreement to sell, GPA Will etc. alleged to have been executed by the plaintiff.
(vi). The aforesaid documents on which the defendants are C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 3 of 36 4 allegedly and ostensibly relying upon are all false, forged and fabricated by the defendants with the sole aim to defeat the legal rights of the plaintiff in respect of the aforesaid property.
(vii). Both the defendants nos. 1 and 2 have no legitimate right, title or interest in the aforesaid property and have no authority to remain in possession thereof. The possession of the defendants in the aforesaid property is illegal, unauthorised and unwarranted in law and the defendants are trespassers in respect of the aforesaid property.
(viii). Both the defendants have illegally and forcibly acquired the possession of the aforesaid property in the month of September, 2003 itself and thereafter they have unauthorisedly constructed one temporary room and made improvements and additions in the boundary wall already constructed by the plaintiff over the aforesaid plot of land.
(ix). The plaintiff made repeated requests to the defendants to hand over the peaceful and vacant possession of the aforesaid property to him being the lawful owner of the said C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 4 of 36 5 property. The defendants did not oblige and still continue to occupy and use the aforesaid property.
(x). The plaintiff had served legal notice dated 15.01.2005 upon the defendant no. 1 and 2 calling upon them to handover the peaceful and vacant possession of the property bearing no. A20, Katyani Vihar Rajiv Nagar Extension, Begumpur, Karala Delhi41 and also pay damages at the rate of Rs. 10,000/ per month on account of illegal and unauthorised use and occupation of the aforesaid property to the plaintiff within a period of 15 days of receipt of the said legal notice. The defendants neither replied to the said legal notice nor complied with the conditions stipulated therein. The defendants also failed to respond to the reminder dated 04.03.2005 issued by the plaintiff through his counsel.
(xi). The plaintiff is the sole and absolute legal owner of the suit property and the title documents viz. Agreement to sell, GPA, Will, etc, if any, in respect of the suit property, alleged to have been executed by the plaintiff in favour of the defendants are false, forged, fabricated, null and void C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 5 of 36 6 abinitio and as such are liable to be canceled. The defendants have even miserably failed to divulge the details of the aforesaid documents, despite repeated requests and despite service of legal notice.
(xii). The defendants are liable to pay damages/mesne profits @ Rs. 10,000/ p.m. to the plaintiff on account of illegal and unauthorised use and occupation of the aforesaid property which is the letting out value of the premises in the concerned area.
2. Summons of the suit was sent to the defendants and the defendants contested the suit by filing a joint written statement.
3. Written statement filed by the defendants put a challenge to the claim of the plaintiff. The defendants while denying the material facts on which the plaintiff has based his cause of action pressed into service the following explanatory facts:
(i). The plaintiff was running a firm in the name and style of Vidhata Properties having its office at 313/80B, Tulsi Nagar, Main Road, Inder Lok, Delhi110035 and branch Office at Katyani Vihar, Barwala Road, Begumpur, Karala, C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 6 of 36 7 Delhi42. The said firm dealt in sale and purchase of properties.
(ii). The defendant no. 1 was working as Subedar Major in Army Medical Corps and posted at Delhi Cantonment in 1989. The plaintiff along with his partner/associate Shri Lalji Kushwaha and represented themselves as Colonizers and Developers and having carved out plots in a colony named as Katyani Vihar.
(iii). The defendant keeping in view his needs post retirement booked a plot in Block A measuring 200 sq. yards in the name of his wife Smt. J. K. Saini (Joginder Kaur and paid Rs. 4,000/. The plaintiff issued a receipt dated 05.03.1989 and mentioned balance amount of Rs. 40,000/ as consideration. Subsequently the plaintiff allotted a plot no. 20 in Block A, received a sum of Rs. 30,000/ and issued a receipt dated 05.11.1989. The balance amount of Rs. 10,000/ was payable at the time of handing over the possession. The same was done on 19.01.1990 and the documents viz. GPA, Agreement to Sell, Affidavit, Will etc. C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 7 of 36 8 was issued in favour of the defendant no. 2 and the said documents were duly notarized.
(iv). Thereafter the defendants raised boundary wall on the Agreement to Sell, Power of Attorney, Affidavit, Will. Since 19.01.1990 the answering defendants are in continuous and uninterrupted possession of the said plot. The plaintiff has also sold the said plot to other person(s) also as many persons approached the defendants on such claims but left after seeing the documents of the defendants with a view to take action against the plaintiff. The plaintiff is a dealer of dubious reputation and is involved in a number of illegal sale transactions of plots.
(v). On 24.05.1995 the plaintiff again sold the plot nos. A 20 and A21 to one Shri Om Parkash Verma and by executed requisite documents in his favour and the said person even without taking the possession further sold it to one Ms. Lata Sharma on 16.10.2003. Ms. Lata Sharma happened to be a relative of plaintiff. She raised an objection that the defendants herein are in illegal possession of the plot C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 8 of 36 9 no. A20. She has filed a suit for permanent injunction and possession against the defendants and made Shri Om Parkash Verma and the plaintiff as proforma defendants only. The suit is pending before the ld. Civil Judge, Delhi since 22.05.2004.
(vi). The said Ms. Lata Sharma is a puppet in the hands of the instant plaintiff. The plaintiff is a notorious person and 8 FIRs have been lodged against him in P. S. Sultan puri, Delhi. The defendants have also lodged a complaint against plaintiff and his associate and an FIR no. 286 dated 27.08.2003 u/s 406/420/120B IPC is registered into the same. The plaintiff was granted bail by the Court of ld. ASJ on 16.11.2004 on terms including not to interfere in the physical possession of the defendants. The plaintiff has also admitted the possession of the defendants in the bail proceedings. He made a false statement that he has not resold the plot in question which is contrary to facts and the instant suit is misconceived.
4. On merits, in sum and substance, the defendants denied the C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 9 of 36 10 material averments of the plaint in the above terms. The defendants denied the service of legal notice dated 15.01.2005 and alleged that the signatures of one D. S. Saini have been forged upon the AD Card. They also denied the service of reminder notice dated 04.03.2005 and questioned its legality.
5. The defendants also took various preliminary objections. They stated that the plaintiff has no cause of action in his favour; the suit is misconceived; the suit is liable to be stayed till the decision of the suit filed by Ms. Lata Sharma; the plaintiff has no locus standi; the suit is bad for misjoinder and nonjoinder; the suit is barred by limitation; the plaint is liable to be rejected under Order 7 Rule 11 of the Code of Civil Procedure on account of bar of section 41(h) of the Specific Relief Act; the suit has not been properly valued for the purposes of jurisdiction and payment of court fee.
6. Vide minutes of proceedings dated 16.09.2005 the plaintiff was granted opportunity to file the replication to the written statement of defendants. Minutes of proceedings dated 08.11.2005 disclose that no replication has been filed. C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 10 of 36 11
ISSUES
7. With the available pleadings, the following issues have been framed on 17.11.2005:
1) Whether defendant encroached and illegally occupied possession of property no. A20, Katyani Vihar, Rajiv Nagar Extension, Begumpur, Delhi in September, 2003? OPP
2) Whether the documents relied upon by the defendants are false, forged and fabricated? OPP
3) Whether the plaintiff is entitled to damages / mesne profit on account of illegal use and occupation by defendants, if so at what rate?
4) Whether the suit is liable to be stayed? OPD
5) Whether the suit is bad for non joinder of
parties? OPD
6) Whether the suit is barred by limitation?
OPD
7) Whether the plaintiff is entitled to
C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 11 of 36
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declaration prayed? OPP
8) Whether the plaintiff is entitled for
possession? OPP
9) Relief.
8. The plaintiff has examined only himself in his evidence as PW1. The defendant has examined three witnesses namely the defendant no. 1 as DW1; Shri Kamla Roy as DW2 and Shri Samoon Khan as DW3.
ARGUMENTS
9. I have heard the final arguments addressed by Shri Tarun Arora, Ld. Counsel on behalf of the plaintiff and Shri Manuj Aggarwal, Ld. Counsel on behalf of the defendants.
10. Ld. Counsels for the parties, while addressing their arguments, copiously read from the pleadings and the evidence on record.
11. Ld. Counsel for plaintiff argued that the plaintiff has been successful in proving their case, which is abundantly clear from the pleadings and evidence on record. The entire case of the plaintiff is clinched by the document Ex. PW1/2 which is a sale deed in favour of the plaintiff. The plaintiff's case is also proved C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 12 of 36 13 by the revenue records. On the other hand the defendants have not even proved any title documents in their favour. They had moved an application for leading secondary evidence which was allowed vide order dated 15.04.2009 but they have not any secondary evidence also. Thus an adverse inference is liable to be drawn against them and the case of the plaintiff stands proved. The plaintiff is entitled to the decree.
12. Ld. Counsel for defendants argued that the plaintiff has no case at all. The plaintiff's case has to stand on its own legs. The plaintiff has not chosen to rebut the averments of the written statement which shows his conduct and falsehood. The plaintiff is a Coloniser of dubious repute and there are many criminal cases pending against him. He has made many admissions in the evidence which show by itself that he has filed a false suit after having sold the suit property to the defendants. Even the suit filed by Ms. Prem Lata Sharma shows that he sells one property to many persons. The plaintiff has not crossexamined the defendant's witnesses on many vital points and therefore the evidence of defendant on these points stands admitted. The C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 13 of 36 14 plaintiff's case is not proved at all and the same is liable to be dismissed.
13. In rebuttal learned counsel for the plaintiff refuted the arguments advanced by the defendants.
14. No other point was argued or urged. No case law has been relied upon or cited by either of the parties. APPRECIATION OF EVIDENCE, FINDINGS & REASONS
15. I have considered the submissions advanced as well as the material on record. My findings on various issues are as under:
Issue no. 1 Whether defendant encroached and illegally occupied possession of property no. A20, Katyani Vihar, Rajiv Nagar Extension, Begumpur, Delhi in September, 2003?
16. Onus of this issue has been upon the plaintiff.
17. Ex. PW1/1 (on page 179 of the suit file) is the site plan. The documents Ex. PW1/2 and Ex. PW1/3 (on pages 155 to 175 of the case file) are the certified copies of a sale deed and Khatoni respectively. No original of the same is not on record and there is an endorsement on the list of documents dated 21.12.2006 C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 14 of 36 15 that the originals of Ex. PW1/2 and Ex. PW1/3 have been received by the plaintiff under his signatures duly identified by his counsel on 08.02.2007.
18. Ex. PW1/4 is the legal notice dated 15.01.2005 (on pages 193 to 199 of the suit file). Ex. PW1/4A to Ex. PW1/4C (on pages 201 to 209 of the suit file) are postal receipts, AD Cards and UPC Certificates respectively. Ex. PW1/5 is a reminder to legal notice and is dated 04.03.2005 (on pages 211 to 213 of the suit file). Ex. PW1/5A to Ex. PW1/5B (on pages 215 to 219 of the suit file) are postal receipts and AD Cards respectively.
19. PW1 stated in his cross examination that in January 1990 he purchased area measuring 3 kilas or 12 Bighas. He has sold kila no. 17 comprising 4 bighas and approximately 1213 sq. yards. The whole property consisting of 12 bighas and 3 biswas stand in his name. He stated that all the purchasers obtained the property by registered GPA plus registered Will and as such the whole property which was purchased in the year 1990 still stands in his (plaintiff's ) name. PW1 further stated that he had sold property of kila no. 17 without dividing into plots and that C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 15 of 36 16 the remaining property is still in his possession and occupation physically. He stated that he has photographs of construction of boundary wall and plinth level of the suit property and sought leave to bring the same. On his request on 08.05.2007 the cross examination was deferred.
20. PW1 admitted in his cross examination that he is engaged in the business of property dealing under the name and style of Vidhata Properties at Karol Bagh. He admitted that he had purchased the suit land for agricultural purpose only. He also admitted that after purchasing the land in question he carved plots and sold the same on different occasions. The plaintiff has not disclosed these facts in the first instance in his plaint. In the second instance, he had an opportunity to file replication to controvert the facts alleged by the defendants. He had chosen not to file a replication though an opportunity was duly afforded to him by the Court. In his crossexamination the plaintiff has admitted that he is engaged in the business of property dealing under the name and style of Vidhata Properties at Karol Bagh. He also admitted that after purchasing the land in question he C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 16 of 36 17 carved plots and sold the same on different occasions. Thus it was within his personal and special knowledge to disclose as to what particular portions of the total land he had sold, to whom, when and by what instrument(s) of transfer. All these facts were within his especial knowledge and therefore it was incumbent upon him to disclose the same by virtue of section 106 of the Evidence Act, 1872, which reads as under: "106.Burden of proving fact especially within knowledge--When any fact is especially within the knowledge of any person, the burden of prov ing that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and circum stances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway with out a ticket. The burden of proving that he had a ticket is on him."
21. At other place in his cross examination PW1 stated that he did recollect as to how many plots in the property in question he had sole till date. He could have sought leave of the Court to C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 17 of 36 18 bring the relevant record in his power, possession and control to apprise the Court on this aspect. There is nothing on record to suggest that any such attempt was even made by the plaintiff. Under the above facts and circumstances adverse inference is li able to be drawn against the plaintiff in terms of section 114 of the Evidence Act, 1872 the relevant extracts of the provision are as under: "114.Court may presume existence of certain acts--The Court may presume the existence of any fact which it thinks likely to have happened re gard being had to the common course of natural events human conduct and public and private busi ness, in their relation to the facts of the particular case.
Illustrations The Court may presume--
............................................................
(g) That evidence which could be and is not pro duced would, if produced, be unfavourable to the person withholds, it, ............................................................ But the Court shall also have regard to such facts as the following, in considering whether such max C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 18 of 36 19 ims do or do not apply to the particular case before it:--
............................................................ As to illustration (g)--A man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family;
............................................................"
22. Further the case of the plaintiff is that the plot in question was encroached upon by the defendants in 2005. PW1 states in his crossexamination that he did not take any action in writing upon coming to know that the plot no. A20 has been illegally occupied by the defendants. At other place in his cross examina tion he stated that since 1990 till date he is in possession of the property in question. These contradictions in the deposition of PW1 have not been resolved.
23. PW1 has also admitted in his crossexamination that he did not execute any Sale Deed pertaining to any plot sold by him. This shows by itself that there is something more than what meet the eyes and the plaintiff has concealed material facts in his plaint. C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 19 of 36 20
24. DW1 is the defendant no. 1 himself. He has deposed in his examination in chief in terms of the facts propounded in the written statement of the defendants. His cross examination by the plaintiff consists only of suggestions which pertain to non execution of any title documents on 19.01.1990; not making any payment/consideration as deposed and deposing falsely. All these suggestions have been denied by the witness. A substantial portion of the evidence of DW1 has not been touched by the plaintiff and the same has remained unchallenged. The logical corollary as per the law of evidence has to follow. Thus nontraversed and unrebutted testimony of DW1 speaks for itself that the plaintiff has conceded to the veracity of the oral evidence of DW1.
25. Thus the factum that the plaintiff was running a firm in the name and style of Vidhata Properties having its office at 313/80B, Tulsi Nagar, Main Road, Inder Lok, Delhi110035 and branch Office at Katyani Vihar, Barwala Road, Begumpur, Karala, Delhi42 stand admitted on account of non cross examination of DW1 on this aspect besides the specific C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 20 of 36 21 admission of PW1 in his cross examination. PW1 in his cross examination has denied the factum of having his office at Katyani Vihar, Barwala Road, Begumpur, Karala, Delhi42 but the non cross examination of DW1 on this aspect has turned the table. On the same parity of reasoning the statement of DW1 that the plaintiff along with his partner/associate Shri Lalji Kushwaha and represented themselves as Colonizers and Developers and having carved out plots in the colony named as Katyani Vihar also remained unrebutted. Sailing in the same boat the deposition of the DW1 that the plaintiff has also sold the said plot to other person(s) including sale of the plot nos. A 20 and A21 to one Shri Om Parkash Verma by executing requisite documents in his favour without delivering the possession to him and its further sale to one Ms. Lata Sharma on 16.10.2003, who is a relative of plaintiff also stands un rebutted. On the parity of reasoning the factum of 8 FIRs registered against the plaintiff in P. S. Sultanpuri, Delhi stands unchallanged and so also the defendants having lodged an FIR no. 286 dated 27.08.2003 u/s 406/420/120B IPC against the C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 21 of 36 22 plaintiff. Thus by default the veracity of these averments of DW1 has not been challenged by the plaintiff and he has conceded to their being true and correct.
26. Sh. Kamla Roy, who appeared as DW2 has deposed about talks for purchase of plot in question between the plaintiff and his associate Shri Lalji Kushwaha and the defendant no. 1; payment of consideration and execution of receipts; payment of Rs.
10,000/ on 19.01.1990 and his signing on the documents like 19.01.1990 and the documents viz. Agreement to Sell, Power of Attorney, Affidavit, Will and receipt as a witness and also witnessing the handing over of possession to defendants. He also deposed about construction of boundary by the defendants.
27. In his crossexamination the witness DW2 was suggested that the defendants have taken unlawful possession of the suit property in Septmeber 2003. DW2 volunteerd to state that they were already in possession. In his cross examination he further stated that they were in possession since 1990. The witness DW2 was suggested that he had not signed as a witness on any documents Agreement to Sell, general power of Attorney, Will C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 22 of 36 23 executed on 19.01.1990 by the plaintiff. There is a thus a tacit admission on the part of the plaintiff that the documents were executed by him on 19.01.1990. There is no suggestion to the witness that no such documents were ever executed by the plaintiff in favour of the defendants.
28. DW3 is a witness who states himself to be resident of C76, Rajeev Nagar Extension, Begampur, Delhi, since 1993. He has deposed about possession of defendants since 1993 when he himself started living in the said locality. He denied the suggestion that the defendants have taken unlawful possession of the property in question since 1993. He stated that he has not seen the title documents of the suit property in question in favour of the defendants.
29. DW2 and DW3 have been suggested about their being deposing falsely on account of their association with the defendants as friends etc. In my view, unless something tangible or credible is shown, merely on account of the fact that the witnesses are somehow known or related to one of the parties in the case, does not make their evidence suspect if they have been able to C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 23 of 36 24 stand the scrutiny of their evidence in crossexamination.
30. DW1 has stated himself to be in possession of the suit property since 19.01.1990. There is absolutely no crossexamination on the part of the plaintiff on this aspect. Thus there is deemed admission on the part of the plaintiff as far as the possession of the defendants in respect of suit property property bearing no. A20, Katyani Vihar Rajiv Nagar Extension, Begumpur, Karala Delhi41 is concerned. This aspect of the evidence of DW1 has gone unrebutted. The evidence of DW1 on the aspect of possession since 19.01.1990 onwards is also corroborated and cemented by the testimonies of DW2 and DW3 also. On the other hand on this aspect there is nothing but selfserving evidence of the plaintiff which gets belied by his cross examination that he has sold many plots out of the property purchased vide Sale Deed Ex. PW1/2 and that he had not executed any sale deed(s) in respect of such sales.
31. Possession is a question of fact. The sale deed Ex. PW1/2 only reflects the factum of transaction that had taken place on the date of its execution i.e. 05.01.1990. It does not imply that the C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 24 of 36 25 state of affairs continues to be the same as that existed on the date of its execution. Ex. PW1/3 also does not come to the rescue of the plaintiff. As the evidence on record suggests the admitted case of the plaintiff is that after purchase of the said land vide Ex. PW1/2 he sold kila no. 17 without diving it into plots. He has further stated in his crossexamination that all the purchasers obtained the property by registered GPA plus registered Will and as such the whole property which was purchased in the year 1990 still stands in his (plaintiff's) name. This evidence clinches the issue. Ostensibly, the plaintiff is trying to take advantage of the fact that the various plots were sold by him on such documents such as GPA, Will, Agreement to Sell etc. but on records the ownership of the property continued in his own name. He has not examined any independent witness of the locality to show that defacto possession of the suit property was with him prior to the alleged illegal possession on the part of the defendants. There is nothing on record except his selfserving statement which has even failed to stand the scrutiny of crossexamination. C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 25 of 36 26
32. The defendants have not refuted the service of legal notice Ex.
PW1/4 and its reminder Ex. PW1/5 in the cross examination of PW1. DW1 has denied the service of notice Ex. PW1/4 and its reminder Ex. PW1/5 in the examination in chief. There is no cross examination of DW1 on this aspect. On preponderance of probabilities the service of notice is to be presumed to have taken place as there is no denial about the address which the notice bears and it can be presumed in accordance with section 114 illustration (e) of the Evidence Act, 1872 that official acts have been regularly performed. Section 27 of the General Clauses Act, which reads as under, also raises a presumption of service of notice: "27. Meaning of service of post. --Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 26 of 36 27 the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
33. Now the question is that whether any adverse inference is liable to be drawn against the defendants for not responding to the notice. In my view the same is not necessitated in view of the facts and circumstances of the case. In the present case, the notices in question do not crystallize any right or interest unlike in section 138 Negotiable Instruments Act, 1882 proceedings where the notice is sinequanon for crystallization of the cause of action as the criminal offence gets completed only after non compliance within the statutory period after the service of notice. In the proceedings under section 138 Negotiable Instruments Act, 1882 non reply to the notice may be taken as a circumstance against the addressee. However in the present case, the notice is only to call upon the defendants to hand over the possession of the plot in question which the defendants did not feet obliged to do. Therefore non reply to the notice does not warrant drawing an adverse inference against the C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 27 of 36 28 defendants. In fact, in view of the facts and circumstances of the case it cannot be ruled out that the notice was sent by the plaintiff only to create a piece of evidence in his favour. Thus in totality of facts and circumstances the nonreply to the notice Ex. PW1/4 and Ex. PW1/5 cannot be treated as a circumstance against the defendants.
34. Thus in view of the aforesaid discussion the finding on this issue is returned against the plaintiff.
Issue no. 2 Whether the documents relied upon by the defendants are false, forged and fabricated?
35. Onus of this issue has been on the plaintiff. As discussed above the original of title documents relied upon by the defendants have not seen the light of the day. The defendants have not brought even the secondary evidence visàvis the said documents.
36. A photocopy of a receipt dated 05.03.1989 of Vidhata Properties was put to PW1 as Ex. PW1/D1(on page 221 of the suit file). Another document viz. a copy of an agreement to Sell C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 28 of 36 29 vide the same exhibit mark (on page 229 of the suit file) was put to the witness PW1. A receipt dated 24.05.1995 in favour of Om Parkash Verma Ex. PW1/D2 (page 271 of the suit file) was also put to the witness PW1 in his cross examination. About the receipt dated 05.03.1989 of Vidhata Properties as Ex. PW1/D1(on page 221 of the suit file) the response of the witness PW1 is that he could not read as his eyesight is weak. On other day of cross examination he denied his signatures on Ex. PW1/D1 the receipt dated 05.03.1989. PW1 denied his signatures and photograph on the receipt dated 24.05.1995 in favour of Om Parkash Verma Ex. PW1/D2.
37. In view of the nature of evidence on record, this issue is neither proved nor disproved. Thus having recourse to section 3 of the Evidence Act, 1872 which states that 'a fact is said not to be proved when it is neither proved nor disproved' this issue also sails in the same boat.
38. The finding on this issue is returned in above terms.
Issue no. 3 Whether the plaintiff is entitled to damages / mesne profit on C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 29 of 36 30 account of illegal use and occupation by defendants, if so at what rate?
39. In view of my discussion of evidence in respect of issue no. 1 and the finding rendered thereon the plaintiff is not entitled to damages / mesne profit on the plea of illegal use and occupation by defendants as the plaintiff has failed to prove that the possession of the defendants is illegal.
40. This issue is therefore held against the plaintiff.
Issue no.4 Whether the suit is liable to be stayed?
41. The onus of this issue has been upon the defendants.
42. The conditions precedent for the stay of suit have been laid in section 10 of the Code of Civil Procedure which reads as under: "10. Stay of suit--No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 30 of 36 31 such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.
Explanation--The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action."
43. The pleadings of the suit filed by Ms. Prem Lata Sharma are have not been filed before this Court. From the evidence on record it appears that the cause of action and parties in the two suits are distinct. Thus for want of the pleadings this Court is not in a position to dwell on this issue. As the onus of this issue was on the defendant, and no evidence has been led to substantiate this issue by them the issue remains unproved. Hence the finding on this issue is returned against the defendants.
Issue no.5 Whether the suit is bad for non joinder of parties?
44. The onus of this issue has been on the defendant. The C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 31 of 36 32 defendants have failed to substantiate or demonstrate as to how the presence of various parties propounded by them is just and necessary for the purpose of this suit. A necessary party is one whose presence is necessary for an effective and complete adjudication of the suit or where a party has to be bound by the judgment or decree of the Court. The defendants are only contesting the claim of the plaintiff. They have not filed any counter claim in view of the challenge to their title/possession by various persons. It is the plaintiff who has challenged the ownership and possession of the defendants. Of course, the plaintiff is only dominus litus, he has no dominus visàvis the parties. The court in its prerogative can add or delete the parties. However from the evidence on record there appears to be no nonjoinder of the necessary parties.
45. The finding on this issue is thus returned against the defendants.
Issue no.6 Whether the suit is barred by limitation?
46. The limitation for suit for possession of immovable property is 12 years from the date of dispossession. The defendants have C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 32 of 36 33 proved them to in possession of the suit property since 19.01.1990. The plaintiff has filed the instant suit on 08.08.2005 i.e. more than 15 years thereafter. Thus the suit of plaintiff visàvis possession is barred by limitation.
Issue no.7 Whether the plaintiff is entitled to declaration prayed?
47. In view of the discussion of evidence while considering the issue no. 1 the plaintiff has failed to prove that he is the sole and absolute owner of the property in question viz. property bearing no. A20, Katyani Vihar Rajiv Nagar Extension, Begumpur, Karala Delhi41 as he has himself admitted that he has sold various parts of the property purchased by him vide Sale Deed Ex. PW1/2. He has failed to bring the best evidence before the Court which has been in his power and possession. It is clear that he has more to conceal than to reveal as suggested by his non filing of replication, his cross examination as PW1 and his cross examination of witnesses DW1 to DW3. The import of the evidence has already been discussed above and the same is not being repeated herewith to avoid the prolixity. C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 33 of 36 34
48. The documents against which declaration is sought have not seen the light of the day. The cross examination of DW2 by the plaintiff gives room to infer that he has executed some documents such as GPA, Agreement to Sell, receipt etc. in favour of the defendants in respect of the suit property. In the garb of the present suit the plaintiff intends to seek a declaration in rem. Admittedly, the property vide sale deed Ex. PW1/2 had been purchased as an agricultural land. Khatoni Ex. PW1/3 also shows its status as such. No document of change of land use has been tendered on record by either of the parties.
49. Though no such objection has been taken but apparently the subject matter of the suit seems to be governed by the provisions of the Delhi Land Reforms Act, 1954. Section 185 of the Delhi Land Reforms Act, 1954 curtails the jurisdiction of the Civil Courts in respect of the matters which fall within the exclusive domain of the Authorities under the said Act. Under Schedule 1 at serial no. 28 a declaratory suit is to be filed before the Revenue Assistant.
50. In view of the above discussion, the plaintiff has failed to make C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 34 of 36 35 out a case of declaration on all counts as prayed by him.
51. The finding on this issue is thus rendered against the plaintiff.
Issue no.8 Whether the plaintiff is entitled for possession?
52. In view of my finding on the above issue no. 1 and 6, the plaintiff is not entitled to possession of the suit property bearing no. A20, Katyani Vihar Rajiv Nagar Extension, Begumpur, Karala Delhi41 as claimed.
53. The finding on this issue is thus rendered against the plaintiff.
Issue no.9 Relief
54. In view of my findings on the above issues it is ordered as under: "The suit of the plaintiff for declaration, cancellation of documents and for the recovery of possession of suit property bearing no. A20, Katyani Vihar Rajiv Nagar Extension, Begumpur, Karala Delhi41and mense C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 35 of 36 36 profits/damages is dismissed."
55. In view of the facts and circumstances of the case, parties are left to bear their own costs.
56. Decree sheet be drawn accordingly.
57. File, after necessary compliance, be consigned to the Record Room.
Announced in the Open Court today on : 02.01.2012 (MAN MOHAN SHARMA) ADJ (Central)12, Delhi C.S. 565/2008 Rajesh Narain Sharma vs. K. R. Saini & Another Page 36 of 36