Delhi District Court
Smt. Shanti Devi vs Sh. Nanhe Lal Chaurasia on 5 October, 2018
IN THE COURT OF MS. RICHA SHARMA,
CIVIL JUDGE01 (WEST), TIS HAZARI COURTS, DELHI
SCJ No. 10861/16
Date of Institution : 05.10.2001
Date of reservation of judgment : 06.09.2018
Date of pronouncement of Judgment : 05.10.2018
Ram Murti Chaurasya (since deceased)
Now represented by his LRs:
1.Smt. Shanti Devi, W/o Late Sh. Ram Murti Chaurasya.
2. Sh. Sunil Dutt Chaurasya W/o Late Sh. Ram Murti Chaurasya.
3. Smt. Ishwari Devi D/o Late Sh. Ram Murti Chaurasya, W/o Sh. Lal Pratap C/o Sh. Sunil Dutt Chaurasya All LRs R/o House No. A - 1112, Sheesh Ram Park, Uttam Nagar, New Delhi.
.................Plaintiffs vs Sh. Nanhe Lal Chaurasia S/o Sh. Srinath Chaurasia, R/o A - 1112, Sheesh Ram Park, Uttam Nagar, New Delhi.
..............Defendant SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 1 of 34 SUIT FOR POSSESSION AND RECOVERY OF DAMAGES FOR USE AND OCCUPATION AND PERMANENT INJUNCTION J U D G E M E N T
1. In brief the facts of the present case as per plaint are that, plaintiff and defendant are real brothers and on 24.01.1984, plaintiff had purchased plots No. A 1112, out of khasra No. 141, situated at Village Bindapur, Delhi colony known as Shish Ram Park in Block A, Delhi having one room and boundary wall built therein from one Sh. Kailash Chand Nagar, S/o Sh. Nathu Ram, R/o Village Kanarsi, P.O. Bankner, District Bulandsahar, UP for a consideration of Rs. 25,000/ which was paid by the plaintiff from his own funds. Thereafter, later on also plaintiff raised further construction on the said plot in the year 199192 out of his own funds.
2. It is avouched by the plaintiff that initially he was residing in a tenanted premises at Deva Ram Park, Tri Nagar, Delhi and after raising construction on the plots No. A11 12, Shish Ram Park, Uttam Nagar, Delhi he shifted there along with his family. The defendant being the younger brother of the plaintiff (who was stated to be unemployed at that time) came to Delhi from Lakhnipur, Tehsil Patti, District Pratapgarh, UP and started living with the plaintiff.
3. It is averred that the plaintiff was running his shops at Inderlok, Delhi and at Shop No. 3, Sri Sanatan Dharam Mandir Market, SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 2 of 34 Mangal Bazar, Uttam Nagar, New Delhi, and as defendant was unemployed, plaintiff allowed him to sit in the shop at Sanatan Dharam Mandir Market, Uttam Nagar, New Delhi as an employee and also allowed him to live with the plaintiff, at his residence at Deva Ram Park, Tri Nagar, Delhi and was having common kitchen.
4. It is further stated that plaintiff after raising construction on plots No. A 1112, Shish Ram Park, Delhi shifted there and defendant also shifted there alongwith the plaintiff. Later on the family of defendant also came to Delhi and plaintiff allowed the family of the defendant to live with his family in a room in property No. A 11 12, Shish Ram Park, New Delhi as a licensee being real brother, without charging any rent from him. It is stated that defendant has no right in the room in property No. A - 11 -12, Shish Ram Park, New Delhi and was employed by the plaintiff in his shop No 3, Sanatan Dharam Mandir Market, Uttam Nagar, New Delhi and over all supervision on the shop was of the plaintiff.
5. It is averred that the son of the plaintiff wanted to start a business of computer hardware in Shop No. 3, Sanatan Dharam Mandir Market, Uttam Nagar, New Delhi and plaintiff requested the defendant to arrange some alternative job as the plaintiff wanted to close the business of paan, biri, cigarette, consequent to which the defendant became dishonest and instead of arranging for an alternative job he stopped giving the accounts of the business being run in Shop No. 3 and refused to leave the shop.
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6. It is further avouched that plaintiff came to know that defendant had dishonest intention since long and once had tried to get the tenancy of the shop transferred in his own name by writing letter to the management of the trust with the forged signatures of the plaintiff and the trust became suspicious and made inquiries from plaintiff wherein, the latter stated that he had not moved the said application and that the same contains his forged signature.
7. It is stated that when construction on property no. A1112 was raised, plaintiff was residing at Deva Ram Park, Tri Nagar and shop No. 3, Sanatan Dharam Mandir Marg, Uttam Nagar, New Delhi was nearer to property No. A 1112, Shish Ram Park, New Delhi so plaintiff used to give the amount to the defendant for making payment of building material as he used to sit in the shop as his employee.
8. It is averred that since defendant became dishonest, he filed a false suit which was pending in the court of the then Ld. Civil Judge for injunction alleging therein that, he is a tenant in respect of shop No. 3, Sanatan Dharam Mandir Marg, Uttam Nagar, New Delhi and is proprietor of the business being run therein and the plaintiff (in the present suit)/defendant therein had no right over the shop and he along with his wife and son wanted to dispossess him from said tenanted shop and they be restrained from dispossessing him. It is further stated that the defendant had also filed a false and frivolous suit for injunction against the plaintiff and his wife and son, pending in the court of the then Ld. Civil Judge, Delhi, wherein he SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 4 of 34 alleged that he is the owner of 1/2 portion of property bearing No. A1112, Shish Ram Park, New Delhi and defendant therein, wants to dispossess him from the suit property and stated that contribution for purchase and construction of the property was made by him and he is having the bills for payment of building material. It is stated that since the payment for the building material was made by the plaintiff through defendant, the latter with malafide and dishonest intention might have got the bills in his name, however defendant never paid even a single paisa towards the construction and purchase of the suit property.
9. It is stated that plaintiff revoked defendant's license in respect of occupation of room attached in property No. A 1112, Shish Ram Park, New Delhi vide legal notice dated 03.09.2001, sent through registered AD/UPC at the address of Shop No. 3, Sanatan Dharam Mandir Market, Uttam Nagar, New Delhi as he used to sit there during day's time. It is further stated that defendant did not reply to the said notice, neither has complied with the notice nor vacated the room under his possession. It is averred that after revocation of license, defendant became unauthorised occupant of the room in his possession and is liable to pay damages for use and occupation at the market rate of Rs. 500/ per month, which is the minimum rate of rent of similar accommodation in possession of defendant and he is liable to pay damages for use and occupation @ Rs. 500/ per month w.e.f., 01.10.2001.
10. It is further averred that on 15.09.2001, defendant had also SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 5 of 34 threatened to raise construction in the open space of the property for which he has no right, after receipt of legal notice and plaintiff has apprehension that defendant will raise unauthorised construction in the open space for which he has no right. Hence, the present suit.
11. By way of the present suit, plaintiff has prayed for :
a) A decree for possession in favour of the plaintiffs and against the defendants with regard to a room situated on the Ground Floor of property No. A 1112, Shish Ram Park, New Delhi.
b) A decree of recovery of Rs. 3,000/ on account of damages for use and occupation for the period w.e.f., 01.10.2001 to 31.03.2002, in favour of the plaintiffs and against the defendant along with interest @ 15 % per annnum.
c) Pendentelite and future damages be further awarded to the plaintiffs and against the defendant @ Rs.500/ per month.
d) A decree for permanent injunction in favour of the plaintiff and against the defendant restraining the defendant from raising any construction on any portion of property bearing No. A 1112, Shish Ram Park, New Delhi.
e) Cost of the suit in favour the plaintiff and against the defendant.
f) Any other relief/reliefs may also be granted in favour of the plaintiffs and against the defendant, which this Hon'ble court deems fit and proper.
12.In the amended written statement filed by defendant, preliminary objections were raised by the defendant wherein, it is stated that the SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 6 of 34 plaintiff and defendant No. 1 had started a business of sale of 'Pan - Bidi' etc in partnership by taking on rent Shop No. 3, Sanatan Dharam Mandir, Uttam Nagar, New Delhi. After six months, the plaintiff withdrew from the partnership business himself and took his share therefrom by putting all the liabilities of receipts and payment upon the defendant no. 1, hence the defendant No. 1 over took the business as proprietor and started running it by changing the earlier name of the firm "M/s Banaras Pal Bhandar" to a new name "M/s Nanhe Lal Chaurasia Pan Bhandar". It is stated that the plaintiff had also surrendered his tenancy rights with regard to Shop No. 3.
13.It is also averred that before taking on rent the shop, it was agreed between the plaintiff and defendant that whatever shop would be taken on rent, the rent receipt of the same would be got issued in their joint names, but the same was not got done by the plaintiff, as he had malafide intention and the rent receipt was issued only in the name of plaintiff and now the plaintiff is using the said rent receipt as a device to gain himself wrongfully against the defendant to ruin him. It is also averred that defendant filed a false suit of rendition of account and mandatory injunction and got converted the suit to recovery of possession and rendition of account by amending the suit bearing No. 279/2001.
14. It is stated that that both the plaintiff and the defendant were having cordial relations earlier, thus defendant did not have any iota of doubt in the plaintiff and was having good faith in him. Thus, they SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 7 of 34 proposed each other to purchase land/ built up property in their joint names to live in one property so that they may live together near to each other for ever during their life time and defendant had put off his liability upon the plaintiff for purchase of land/house.
15.It is stated that plaintiff purchased two plots bearing No. A11 & 12 at Shish Ram Park, Uttam Nagar for which defendant paid his share in cash to the plaintiff. It is further averred that while paying his share to the plaintiff, defendant clearly and specifically told the plaintiff to get prepared the documents in their joint names but the plaintiff due to malafide intention got prepared the documents in his own name only and did not got mentioned the name of the defendant in the documents. It is also stated that the construction was also got raised on the plots with the joint funds of the parties by distributing equal amount. Further, it is stated that the defendant is also in possession of the receipts for the building material and as such is having 1/2 share in the property No. A 1112, Shish Ram Park, Uttam Nagar, Delhi.
16.It is further averred that the suit of the plaintiff is barred by limitation and hence is not maintainable on this ground. It is also stated that plaintiff has not paid the court fee on the suit on the basis of market value of the suit property. It is further stated that the plaintiff has wrongly and incorrectly assessed the market value of the property at Rs. 25,000/ whereas its market value is not less than Rs. 10 Lakhs. Further, since the market value of the suit property is not less than Rs. 10 Lakhs, court does not have the jurisdiction to SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 8 of 34 entertain and decide this matter.
17.It is further avouched by the defendant in his written statement that if the court considers the market value of the suit property as Rs.25,000/ the defendant is ready to pay half value of the share of the plaintiff in the property and the plaintiff should be ordered to take the same and execute relevant papers in favour of the defendant and to hand over the possession of his share in the property to the defendant.
18.In reply on merits, it is averred by the defendant that the said plot was purchased with the joint funds of the parties and the construction was also raised thereon with the joint funds, hence defendant has half share in the said plot and property. It is further averred that, the construction was raised from the funds of both the plaintiff and the defendant thereby contributed equal amount. It is further stated that both the defendant and the plaintiff had shifted to the suit property after raising construction on the plots. It is stated that though the plaintiff and the defendant had started business first in partnership but after six months, the plaintiff withdrew himself from partnership business and surrender the liabilities of the business and his share in the tenanted shop in favour of the defendant. It is vehemently denied by the defendant that he was allowed to sit in the shop as an employee of the plaintiff. It is also stated that the property bearing No. A 1112, Shish Ram Park, Delhi is a joint property of the parties as it was purchased and got built with the joint funds of the parties and as such defendant has SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 9 of 34 1/2 share in his property and the plaintiff turned dishonest and does not want to give half share of the defendant in the said property and wants to throw him out of the property. It is denied that the defendant is residing in the said property as a licensee. It is also denied that overall supervision on the shop was of the plaintiff. Further, in his written statement defendant had denied that he had forged the signatures of the plaintiff. It is averred that the defendant is not a licensee under the plaintiff but is living in the suit property as one of the owners and plaintiff has illegally and malafidely served the notice dated 03.09.2001, which was duly replied to by the defendant and since the defendant is not a licensee, so plaintiff cannot revoke the alleged licence and hence the question of complying with the said notice does not arise. It is denied that the possession of the defendant is unauthorised and he is liable to pay damages for use and occupation at the rate of Rs. 500/ per month. It is also denied that defendant is liable to pay the damages @ Rs. 500/ per month w.e.f. 01.10.2001 as he is a coowner. It is also denied that defendant has no right to raise construction at the suit property. In rest of the written statement, the averments made by the plaintiff were vehemently denied by the defendant and a prayer is made to dismiss the suit.
19.Vide order dated 10.03.2004, following issues were framed by the then, Ld. Transferor Court: (1) Whether the defendant is the coowner of the suit property? OPD.
(2) Whether the suit of the plaintiff is barred by limitation?
SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 10 of 34 OPD (3) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for? OPP (4) Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP (5) Relief.
20.In order to prove his case, plaintiff examined himself as PW1 and tendered in evidence his duly sworn in affidavit exhibited as Ex.PW1/A, reiterating the contents of the plaint. In his testimony, following documents were exhibited : Sr. Nature of documents Exhibited as No. 1 The original GPA executed by the previous owner Sh. Ex.PW1/1 Kailash Chand Nagar in favour of plaintiff.
2 The original agreement for sale Ex.PW1/2 3 Original affidavit Ex.PW1/3 4 Original registered receipt for payment of consideration Ex.PW1/4 by the plaintiff to Sh. Kailash Chand Nagar 5 Documents executed by Smt. Sohan Devi in favour of Ex.PW1/5 Sh. Kailash Chand Nagar.
6 Original affidavit of Smt. Sohan Devi Ex.PW1/6 7 The original agreement to sell executed by Smt. Sohan Ex.PW1/7 Devi and Sh. Kailash Chand Nagar 8 Original registered receipt signed by Smt. Sohan Devi Ex.PW1/8 9 Original sale deed Ex.PW1/9 10 Site plan Ex.PW1/10 11 Copy of notice dated 03.09.2001. Ex.PW1/11 12 Postal receipt Ex.PW1/12 13 Original UPC Ex.PW1/13 PW1 was crossexamined at length and thereafter, plaintiff's evidence SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 11 of 34 was closed vide order dated 27.09.2005.
21. On the other hand, in order to prove his case, defendant got himself examined as DW1 and tendered in evidence his duly sworn in affidavit exhibited as Ex.DW1/A, reiterating the contents of the written statement. He was cross examined at length by the plaintiff's counsel.
22.Apart from examining himself as DW1, defendant got examined Sh. Ram Karan Chaurasia as DW2, Sh. Ram Siroman as DW3, Sh. Mahavir Singh as DW4 and Sh. Rajbir Singh as DW5, who tendered in evidence their duly sworn in affidavits which were duly exhibited as Ex.DW2/A, Ex.DW3/A, Ex.DW4/A and Ex.DW5/A, respectively. All the above said witnesses were duly cross examined at length by the plaintiff's counsel. Thereafter, vide order dated 02.08.2017, DE was closed.
23.I have heard the rival contentions of Ld. Counsels and have perused the plethora of evidence on record carefully. My issuewise findings are as under: ISSUE No. 3 and 4 (3) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for? OPP (4) Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP
24. Both these issues are taken up together as they involve common question of law and fact. The onus to prove these two issues was SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 12 of 34 upon the plaintiff.
25.At the outset, it is apropos to state that, it is the claim of the plaintiff that he is the owner of the property bearing No. A 1112, Shish Ram Park, New Delhi, (hereinafter referred to as the "suit property"). The said property was purchased by the plaintiff on 24.01.1984, from Sh. Kailash Chand Nagar for a consideration of Rs.25,000/. Plaintiff further avers that, he allowed the defendant to live in the suit property in capacity of a licensee being his real brother and further submits that in lieu of the same, no rent was ever charged by the plaintiff from the defendant as the plaintiff permitted the defendant to reside in one room of the suit property, out of natural love and affection. In the present case, it is stated by the plaintiff that after purchase of the suit property he raised construction on the said plot in the year 199192, with his own funds and after the completion of the said construction, he shifted in the suit property, as earlier he was living in a tenanted premises at Deva Ram Park. Plaintiff further avers that, he even allowed the defendant to reside in the said suit property after the completion of the said construction and subsequently, when the family of defendant visited Delhi even they were permitted to live in the room allotted to the defendant as a licensee by the plaintiff.
26.It is the case of the plaintiff that, defendant was requested to vacate the suit property as the same was required by the son of the plaintiff, but the defendant refused to do the same and therefore, a legal notice dated 30.09.2001, for termination of licence was served SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 13 of 34 upon the defendant but despite that defendant did not vacate the suit property.
27.It is pertinent to mention that, in order to assert his claim over the suit property in capacity of owner, plaintiff has placed on record three chain of title documents emanating right from the first owner of the suit property namely, Smt. Sohan Devi. Plaintiff has placed on record document Ex.PW1/9, which is a registered sale deed duly executed on 02.02.1974, at Delhi between Sh. Kartar Singh and Smt. Sohan Devi for the property bearing No.11 & 12 measuring 108 Square Yards out of Khasra No. 141 situated at Village Bindapur, Delhi abadi known as Shish Ram Park in BlockA, Delhi. Perusal of the said document clearly shows that, it is a registered sale deed duly executed between one Sh. Kartar Singh and Smt. Sohan Devi for the suit property. Therefore, perusal of the document Ex.PW1/9 clearly shows that, the property initially belonged to one Smt. Sohan Devi, as a duly registered sale deed is placed on record in form of document Ex.PW1/9 and it is needless to mention that there is a presumption of genuineness attached to the registered document.
28.Apart from Ex.PW1/9, plaintiff has also placed on record documents exhibited as Ex.PW1/5 to Ex.PW1/8, being the General Power of Attorney, the Affidavit, the Agreement to Sell and the Receipts, respectively. Perusal of the documents Ex.PW1/5 to Ex.PW1/7, clearly shows that these are the General Power of Attorney and the Agreement to Sell duly executed between Smt. SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 14 of 34 Sohan Devi, the initial owner of the suit property and one Sh. Kailash Chand Nagar. Further, perusal of the General Power of Attorney i.e., Ex.PW1/5 clearly shows that the same was executed by Smt. Sohan Devi by virtue of which Sh. Kailash Chand was appointed as the attorney for property bearing No. 11 and 12 admeasuring 108 Square Yards. The document exhibited as Ex.PW1/7 being the Agreement to Sell further shows that, the same was executed on 07.01.1980, by Smt. Sohan Devi in favour of Sh. Kailash Chand Nagar whereby, it is categorically mentioned that Smt. Sohan Devi is the actual owner and is in possession of the suit property having purchased the same from one Sh. Kartar Singh, having agreed to sell the suit property to Sh. Kailash Chand for a consideration of Rs.4,000/. The said documents are duly appended with an affidavit of Smt. Sohan Devi which is exhibited as Ex.PW1/6 and a receipt which is exhibited as Ex.PW1/8.
29.Perusal of the said receipt clearly shows that, the said property was purchased for an amount of Rs. 4,000/. Therefore, cumulative reading of documents exhibited as Ex.PW1/5 to Ex.PW1/8 clearly shows that the suit property in question was sold off by the initial owner Smt. Sohan Devi to Sh. Kailash Chand.
30.In addition to all the documents discussed as above, plaintiff has also placed on record, documents exhibited from Ex.PW1/1 to Ex.PW1/4, being the General Power of Attorney, Agreement to Sell, Affidavit, Receipt, respectively. Perusal of the document Ex.PW1/1, clearly shows that the same is General Power of SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 15 of 34 Attorney duly executed by Sh. Kailash Chand Nagar by virtue of which he duly appointed Sh.Ram Murti Chorisia i.e., the plaintiff in the present case as his lawful attorney for the suit property in question. Further, document exhibited as Ex.PW1/2 reveals that on 24.01.1984, an Agreement to Sale was duly executed between Sh. Kailash Chand Nagar and Sh. Ram Murti Chorisia i.e., the plaintiff in the present case qua the suit property by virtue of which Sh. Kailash Chand Nagar agreed to sell the suit property to the plaintiff for a consideration of Rs.25,000/. An affidavit of Sh. Kailash Chand Nagar testifying the said General Power of Attorney executed by him in favour of the plaintiff is also placed on record by the plaintiff and is exhibited as Ex.PW1/3. In addition to this, plaintiff has also placed on record a receipt to the tune of Rs. 25,000/, showing the consideration for the transaction that took place between the plaintiff and Sh. Kailash Chand and the receipt is exhibited as Ex.PW1/4.
31.Further, though the chain of documents is placed on record by the plaintiff emanating from the original owner of the suit property Smt. Sohan Devi but the subsequent two chains of documents placed on record by the plaintiff are not registered documents. Therefore, it is pertinent to mention herein that, the law is settled that by virtue of unregistered documents of GPA, Agreement to Sell, Affidavit, receipt the person cannot be said to be the owner of the property, but the Hon'ble High Court of Delhi in case titled as "Ramesh Chand Vs. Suresh Chand", 188 (2012) DLT 538 has held that: no doubt, a person strictly may not have complete SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 16 of 34 ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882.
32. In Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira, (2012) 5 SCC 370, it has been held that: "A title suit for possession has two parts first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected."
33.In the light of the law as above, the court cannot be unmindful of the fact that in the present case the plaintiff stands on a higher footing than the defendant, as the plaintiff has placed on record three chains of title documents emanating from the original owner to the plaintiff himself. But on the contrary, the defendant has not placed any document on record to show his locus and his co ownership qua the suit property.
34.The case of the plaintiff against the defendant stands on a higher footing with all the documents duly exhibited and the court has to adjudge on the basis of the best evidence available with the court and it is the case of documentary evidence placed on record by the plaintiff pitched against no documentary evidence at all being placed on record by the defendant.
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35. At this stage, court also deems fit to place reliance on Section 91 and 92 of the Indian Evidence Act, 1872, which pertain to the documentary evidence. Section 91 of the Indian Evidence Act provides that, "when terms of a contract or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained". Thus, on the basis of the above codified law, it is explicit that no oral evidence can be given of any term of an agreement otherwise than explicitly permitted by law.
Section 92 of Indian Evidence Act, 1872 provides that, "when the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section (Section 91) no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:"
36.Thus, on the basis of Section 91 and 92 of the Indian Evidence Act,1872, it categorically stands codified that, the documentary evidence cannot be excluded by mere oral averments and SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 18 of 34 submissions. Further, it categorically stands established that when the terms of contract, grant or disposition created in possession of the property are reduced in writing, no oral averments to controvert over those terms can be given, unless the same falls within the proviso to Section 92 of the Indian Evidence Act. But in the present case the documentary evidence is being placed on record by the plaintiff and the defendant has tried to controvert the same only by making bald averments in the written statements and the same are not substantiated by any documents evidence at all. Therefore, simplicitor by virtue of raising bald averments in the written statement, the documentary evidence placed on record by the plaintiff does not stand negated.
37.Thus, from the chain of title documents placed on record by the plaintiff, it is evident that the plaintiff has placed on record three chain of title documents, emanating right from the initial owner of the suit property i.e., Smt. Sohan Devi, till the plaintiff himself, to establish his ownership over the suit property. Though, it is a settled proposition of law that the documents by virtue of which any right, interest and title is created in the suit property ought to be registered but in the peculiar circumstances of the present case, court cannot be unmindful of the fact that the plaintiff has placed on record three chain of title documents establishing the right, interest and title in the suit property as devolved from the initial owner i.e. Smt. Sohan Devi to the plaintiff himself. Thus, on the scale of preponderance of probabilities, plaintiff has duly discharged the initial onus placed upon him by virtue of Section 101 of the Indian Evidence to prove SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 19 of 34 that, he has acquired right, interest and title over the suit property by virtue of the chain of documents placed on record by the plaintiff. Thus, by placing on record the complete chain of documents emanating from the original owner of the suit property and the right by virtue of these documents being devolved upon the plaintiff, plaintiff has shifted the onus upon the defendant to show that the documents placed on record by the plaintiff establishing his ownership qua the suit property were got prepared with malafide intention by the plaintiff in his own name only and the plaintiff deliberately did not mention the name of the defendant in the documents, so prepared, as the same is the defence taken by the defendant in his written statement.
38. It is further the case of the defendant that, he is the coowner in the suit property as he had contributed cash in purchase of the suit property and further that the construction was also got raised on the said plot with the joint funds of the parties by distributing the amount equally. Thus, from the averments of the defendant, it can be culled out that; Firstly, it is averred by the defendant that he has contributed his share in cash to the plaintiff for the purchase of the suit property. Secondly, it is averred by the defendant that he had clearly and specifically told the plaintiff to get the documents prepared in the joint name of the plaintiff and the defendant but plaintiff with malafide intentions got the documents prepared in his own name and did not mention the name of the defendant in the documents.
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39.Now, the important aspect which needs to be dwelled into is, if the defendant has been able to prove his contribution in cash towards the purchase of the suit property and further if the defendant has been able to show that the said documents placed on record by the plaintiff were got prepared with malicious intentions by the plaintiff.
40.It is noteworthy to mention that, defendant got himself examined as DW1 and in his crossexamination, it is categorically mentioned by the defendant that he came to Delhi 35 years back and at that time he did a job at Inderlok from a shop no. 313/33/H, Inderlok, New Delhi and further avers that the rent pertaining to the said shop was never paid by him but on the other hand the same was paid by the uncle of the defendant to Sh. Balwant Singh. It is further averred by the defendant in his crossexamination that, the income from the said shop used to be taken by his uncle as well as the plaintiff and the relevant extracts of his crossexamination are "I came to Delhi about 35 years back when I did the same job at Inderlok from shop no. 313/33/H, Inderlok, New Delhi - 35. The said shop was taken on rent by my uncle from Balwant Singh. I do not remember the rent of the said shop. The income from the said shop used to be taken by my uncle and the plaintiff. I cannot tell as to what was my monthly income 35 years back. I do not deposit any amount with the bank".
41.Thus, from the crossexamination of DW1, it can be culled out that on one hand it is averred by DW1 that, he used to work in SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 21 of 34 shop bearing No. 313/33/H, Inderlok but on the other hand he states in his crossexamination itself that the income from the said shop used to be taken by his uncle and plaintiff implying thereby that, it categorically stands admitted by the defendant that no income from the said shop was accruing to the defendant per se as his own statements are inter se contradictory to each other. Because, if on one hand he was working in the said shop then it is impossible to perceive that, he was not receiving any money from the said shop but on the other hand he candidly stated in the crossexamination that, the income from the said shop was taken by his uncle and plaintiff. Thus, by defendant's own statement in crossexamination it stands established that no clarity has been adduced by the defendant to show his source of income/earning 35 years back. It is further noteworthy to mention that it is stated by the defendant in his crossexamination that he does not remember what was his monthly income 35 years back. Therefore, from the above discussion a logical corollary can be culled out that the defendant has failed to substantiate his source of income that existed at the relevant point of time when the suit property was purchased. It is further averred by the defendant in his defence that, he had paid the money in cash towards the purchase of the suit property but a mere bald statement is made to this effect and no exact amount has been mentioned by the defendant in his written statement to show and establish that any specific figure or amount of money was contributed by him towards the purchase of the suit property.
42.It is also paramount to mention that, though in his cross SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 22 of 34 examination, DW1 has categorically stated that, the suit property was purchased for an amount of Rs. 25,000/ but he has submitted that he does not know the person from whom the suit property was purchased. This statement of the defendant regarding no knowledge of the person from whom the suit property was being purchased does not appeal to the prudent mind and further does not inspire the confidence of the court as, no person would purchase or contribute money towards the purchase of the property without knowing the name, details and whereabouts of the person from whom the said property is to be purchased. Thus, the defence taken by the defendant that, he has a share in the suit property as he contributed money towards the purchase of the same, is completely sham and illusionary as neither the defendant in the first place has specified the amount which was contributed by him towards the purchase of the suit property nor has he led any evidence to show the source and means of his income to purchase the suit property. Further, defendant has categorically stated in his crossexamination that he does not know the name of the person from whom the suit property was purchased and all these averments cumulatively establish that defendant has not led any cogent evidence to show that he has contributed any money towards the purchase of the suit property.
43. Another interesting aspect which needs to be looked into by the court is that the defendant in his crossexamination dated 03.09.2011, has categorically mentioned that he does not have any document to show that he made payment for the purchase of the suit property to the plaintiff and the relevant extracts of his cross SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 23 of 34 examination to this effect are "I do not have any document to show that, I have made payment for the purchase of the suit property to the plaintiff." This candid admission further shakes the defence of the defendant regarding the making of payment by him towards the purchase of the suit property. It is also apropos to state that the defendant in his crossexamination mentions that, the funds for the purchase of the property were taken by the plaintiff from the amount available in the shop bearing No. 313/33/H, Inderlok, New Delhi and further goes on to state in his crossexamination that the business of the said shop was owned by the plaintiff and the relevant extracts of his crossexamination to this effect are "the funds for the purchase of the property were taken by the plaintiff from the amount available in the shop bearing No. 313/33/H, Inderlok, New Delhi, of which business my brother was the owner". Thus, by making such a candid statement in his crossexamination defendant has further shattered his own defence of, the business of the plaintiff and defendant being joint and in partnership as the defendant has clearly stated in his crossexamination that, the business being run at shop No. 313/33/H, Inderlok was owned by his brother i.e., the plaintiff in the present case.
44.Further, defendant has stated in his crossexamination that the funds were arranged prior to the purchase of the property and the said amount was available at the shop. The relevant extracts of his cross examination to this effect are "We have arranged the funds a day before the purchase of the property and the said amount was available at the shop" but the said averment of the defendant is also SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 24 of 34 going contrary to the defence taken by him as, on one hand if he has averred in the crossexamination that the business of the said shop was owned by the plaintiff, then in light of defendant's own categorical admission the funds raised from the said shop's business would also automatically belong to the plaintiff. There is no iota of whisper anywhere in the crossexamination of the defendant that, apart from the funds being arranged from the shop, there was any other mode, means, mechanism or person from whom the said funds were raised.
45.Further, the fact that funds were contributed by the defendant is not witnessed or testified by any other person or witness and the said fact is also stated by the defendant in his crossexamination as he stated that "except for me and the plaintiff, none of our other relative was present in Delhi at the time when the property was purchased". Thus, defendant has miserably failed to show that he had contributed any amount towards the purchase of the suit property and even if the version of the defendant is treated to be as a gospel truth and it is believed that the defendant did contribute towards the suit property then also, by merely providing financial assistance a person cannot claim himself to be the coowner of the suit property. It would not be out of place to mention that defendant has stated in his crossexamination that, he has not filed any document with any government authority before 2001 to the effect that he is the coowner of the suit property.
46.Further, the factum of the defendant working in any kind of SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 25 of 34 partnership with the plaintiff at shop No. 313/33/H, Inderlok or at Shop of Sanatan Dharam Mandir is not proved by the defendant and on the contrary it is admitted by the defendant that, he does not have any written document or partnership to show that he was running a business of paanbidi in partnership with the plaintiff. Thus, as far as the aspect of defendant making any contribution towards the purchase of the suit property is concerned the same stands completely unestablished by the defendant.
47.Another aspect which needs to be looked into by this court is with regard to the defence of the defendant averring that the title documents placed on record by the plaintiff are prepared with malicious intention and that it was agreed between the plaintiff and the defendant that the title documents would be prepared in the joint names of both plaintiff as well as the defendant. Firstly, there is nothing placed on record by the defendant to show that any such tacit understanding was ever arrived at between the plaintiff and the defendant regarding the property documents being prepared in the joint names of plaintiff as well as defendant. Secondly, it is admitted by the defendant in his crossexamination that the defendant got to know about the existence of the title document in favour of the plaintiff only after the same were executed, but despite having knowledge to the existence of the title document in favour of the plaintiff, the defendant neither challenged the legality of the said documents by preferring a suit for cancellation of the same nor did he file any suit for declaring the said document as null and void. Though, it is averred by the defendant in his cross SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 26 of 34 examination that, he did not see the title documents and the relevant extract with respect to the same is "it is only after the execution of the title documents in favour of the plaintiff, the plaintiff told me regarding the fact that the document in respect of the said property has been executed", the factum of the execution of the document was very much within the knowledge of the defendant and the contention that he did not see the title documents does not establish the absence of knowledge on behalf of defendant with regard to the execution of the title documents. It is further avouched by the defendant in his crossexamination that, he searched at his place for the title documents and found a photocopy of the Power of Attorney in respect of the property executed in the name of the plaintiff, implying thereby that, the fact that the documents exists at the place of the defendant were very much within the knowledge of the defendant, therefore, despite that neither did the defendant make an endevour to challenge the document nor did he prefer any complaint against the plaintiff for fraudulently executing the documents in his favour.
48.Thus, on the basis of the above observations and findings, it categorically stands establish that the defendant has miserably failed to prove that he had contributed any money towards the purchase of the suit property and has further failed to prove and establish that there was any such agreement between the plaintiff and the defendant to show that, it was agreed between them that the title documents would be jointly executed in the name of plaintiff and defendant. Further, despite having knowledge about the existence SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 27 of 34 and the execution of the documents no endevour was made by the defendant to get the same declared as null and void or to get it cancelled by any authority.
49.It is noteworthy to mention that, the stands taken by the plaintiff in the present case is that the defendant was residing in the suit property in the capacity of a licensee but the averment of the defendant was that his possession of the suit property is in capacity of coowner. However, not even a single cogent evidence is led by the defendant to establish his coownership qua the suit property. On the other hand, plaintiff has placed on record the notice of termination of license which is Ex.PW1/11, the delivery of the legal notice Ex.PW1/11 also stands duly established by the plaintiff by placing on record Ex.PW1/12 being the postal receipt and the original UPC which is exhibited as Ex.PW1/13.
50.Further, defendant DW1 in his crossexamination has not denied to the receiving of any notice exhibited as Ex.PW1/11 but on the contrary it is averred by him that, "I do not remember whether I have received any notice Ex.PW1/11" and it is a settled proposition of law that evasive denial is no denial and therefore, by making such statement the defendant has in a way admitted to the delivery of the legal notice.
51.At this stage inference can be drawn on the basis of Section 114 of the Indian Evidence Act which states that, "the court may presume the existence of any fact which it thinks likely to have happened, SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 28 of 34 regard being had to the common course of natural events, human conduct and/a private business, in their relation to the facts of the particular case." The Clause (f) appended to the section clearly states that, "common course of business has been followed in a particular case, implying that where a letter or legal notice as in the present case is sent to the defendant, it would have ordinarily been delivered in the common course of business to the party to whom it was addressed."
52.In this case the delivery of the legal notice also stands proved by the plaintiff by placing on record Ex.PW1/12 being the postal receipt and the original UPC which is exhibited as Ex.PW1/13.
53.At this stage, the court deems it fit to discuss the findings of the Hon'ble Supreme Court in judgment titled as "Abdul Gaffar vs. DDA", 2001 Rajdhani Law Reporter 249, that if a legal notice is given by a party, the same is not replied and contents not denied then, silence of the notice raises presumption against him. Another judgment of Hon'ble High Court titled as Kalu Ram v Sita Ram 1980 Rajdhani Law Reporter (Note) 44 is on the same aspect.
54.Further, it is also pertinent to mention Section 27 of the General Clauses Act :
"Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or "given" or "send" or any other expression is used, then, unless a different intention appears, the service SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 29 of 34 shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
55.The Hon'ble Apex Court in the case of K.Bhaskaran vs Sankaran Vaidhyan Balan & Anr. (1999) 7 SCC 510 observed as under :
"The principle incorporated in Section 27 of the General Clauses Act could profitably be imported in a case where the sender had dispatched the notice by post with the direct address written on it. Then it can be deemed to have been served on the addressee, unless he proves that it was not really served and he was not responsible for such nonservice. These were the observations of the Hon'ble Supreme Court while dealing with a case relating to service of notice U/s 138 of NI Act. "
56. Thus, in light of the facts of the present case and reading it conjointly with the law entailed under Section 114, it can be safely stated that despite delivery of legal notice, defendant did not choose to reply with the same, hence, presumption against defendant is drawn.
57.Further, apart from examining himself, defendant also got examined DW2 Sh. Ram Karan Chaurasia, who has categorically stated in his crossexamination that, no amount was exchanged before him for the purchase of the suit property and further stated that he does not know the name of the contractor who constructed the property. In addition to this, DW2 further averred that no construction took SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 30 of 34 place in his presence at the suit property, therefore, DW2 has not lead any substantial evidence to prove that, the defendant had contributed towards the purchase of the suit property. It is further averred by DW2 in his crossexamination that, he does not know the person from whom the suit property was purchased and further avers that he cannot say as to when was the suit property purchased.
58.Moreover, the consideration amount for which the suit property is purchased is Rs. 25,000/ and the said figure is duly admitted figure of the plaintiff as well as the defendant but it is averred by DW2 in his crossexamination that, the suit property was purchased for a consideration of Rs. 50,000/ to Rs. 55,000/, and the said figure is nowhere close to the admitted figure of the purchase of the suit property. Thus, DW2 does not appear to be a material witness at all and his testimony does not inspire the confidence of the court.
59.Apart from examining DW2, defendant also got examined one Sh. Sh. Ram Siroman as DW3, who also deposed on the same lines as DW2, the said witness neither knows the exact address of the suit property nor does he remember as to when the property was purchased. He further stated that he was not present in Delhi at the time when the suit property was purchased implying thereby that DW3 has not led any material evidence to show that the defendant had contributed towards the purchase of the suit property.
60.Further, defendant got examined DW4, who reiterated on the same lines as that of DW2 and DW3, that he was not present at the time SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 31 of 34 when the consideration of the said property was exchanged and he is only a hearsay witness to the whole transaction. Therefore, his testimony is not reliable. Thus, in toto no evidence has been duly adduced by the defendant to show, prove and establish that: Firstly, he contributed any money towards the purchase of the suit property. Secondly, no evidence has been led by him to show the source from which he generated the funds for purchase of the suit property. Thirdly, no evidence has been lead by him to establish the exact amount that was paid by him to the plaintiff. Fourthly, no evidence has been led by him to show that any money was paid by him, towards the purchase of the suit property. Fifthly, despite having knowledge with regard to the execution of the documents of the suit property in favour of the plaintiff, the defendant had not approached before any appropriate authority/court of law for declaration of the said documents as null and void. It is further averred by the defendant that the documents placed on record by the plaintiff are forged and fabricated and the same were prepared with malicious intention but no evidence has been placed on record by the defendant to show the malice of plaintiff. Sixthly, though the defendant has stated himself to have contributed towards the purchase of the property but has miserably failed to substantiate the said averment. Lastly, it is averred by the defendant that he is the coowner of the said property but surprisingly he does not even know the person from whom the suit property was purchased.
61.Thus, in view of the above said findings, Issue No. 3 and 4, is decided in favour of the plaintiff and against the defendant.
SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 32 of 34 ISSUE No. 1 (1) Whether the defendant is the coowner of the suit property? OPD.
The onus to prove this issue was upon the defendant.
62. As a squeal to the observations and findings made in issue No. 3 and 4, issue No 1 stands decided against the defendant and in favour of the plaintiff.
ISSUE No. 2(2) Whether the suit of the plaintiff is barred by limitation? OPD The onus to prove this issue was upon the defendant.
63. At the outset, it is pertinent to mention that no evidence has been led by the defendant to prove that the suit of the plaintiff is barred by limitation, only bald averments are raised to this effect in the written statement but no evidence has been led by the defendant to substantiate the limitation as averred by the defendant in the present suit. But, on the contrary on the basis of the observations made in issue No. 1 and 2 plaintiff has been successful in establishing that defendant was residing in the suit property in the capacity of a licensee and due notice regarding the termination of the same was served upon the defendant on 03.09.2001. Therefore, the cause of action in favour of the plaintiff ensued when the legal notice was duly served upon by the plaintiff to the defendant and it is a settled codified law that from the accruing of the cause of action, the period of limitation for the suit for possession is 12 years and therefore by operation of law, the suit of the plaintiff is within limitation.
SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 33 of 34
(5) RELIEF
64. As a squeal to the above observations and findings, the suit of the plaintiff stands decreed whereby, the defendant is directed to hand over the possession qua the room situated on the ground floor of property No. A 1112, Shish Ram Park, New Delhi to the plaintiff. Further, defendant is restrained from raising any construction on any portion of property bearing No. A 1112, Shish Ram Park, New Delhi.
Costs of the suit is also awarded to the plaintiff. Decree sheet be prepared accordingly.
File be consigned to record room, after due compliance.
Digitally signed by RICHA RICHA SHARMA
SHARMA Date: 2018.10.06
15:54:29 +0530
Pronounced in the open court (Richa Sharma)
on 05.10.2018 Ld. Civil Judge 01: THC (West)
SCJ No.10861/16 Ram Murti Chaurasya & ors. Vs. Nanhe Lal Chausasia Page no. 34 of 34