Delhi District Court
Mohan Lal vs . Chand & Anr. on 25 March, 2015
Mohan Lal Vs. Chand & Anr.
CS No. 249/09
IN THE COURT OF Sh. DEEPAK SHERAWAT: ACJcumCCJcum
ARC (SOUTHWEST): DWARKA COURTS: NEW DELHI.
Civil Suit no.249/09
Mohan Lal
S/o Late Sh. Jakkar
R/o H.no. 25 & 27, VPO Dhansa
New Delhi110073.
...............Plaintiff
vs.
1. Chand S/o Natthu
2. Narain S/o Natthu
Both R/o VPO Dhansa
NewDelhi110073.
................Defendants
Date of institution: 29.07.09
Date of Judgment: 25.03.15
JUDGMENT:
1. This is a suit for permanent injunction filed by the plaintiff against the defendant.
2. Brief facts of the case are as under:
That the plaintiff is owner and in possession of house no. 25 & 27 and there is a house of his real brother between his house no. 25 & 27 in Village Dhansa, Delhi. The eastern side of wall (herein after called as suit wall) of these houses, is one and constructed by the plaintiff 40 years back on his own land and the 1 Mohan Lal Vs. Chand & Anr.CS No. 249/09
thickness of the wall is 13½ and its height was raised 5' more about 15 years back. It is further stated that the suit wall is part of the house of plaintiff. It is further stated that there was a house of one Late Lal Pirthi in eastern side of house of plaintiff and plaintiff allowed him to use the eastern side wall by putting about 5' brick masonry and said Lala Prithi put his ballies/ karries on the same about 15 years back and after the death of said Lala Pirthi, his grandson sold this house to defendant no.1. It is further stated that as the house no.25 of plaintiff became old and for the purpose of reconstruction, plaintiff took down the wooden karries resting on the eastern side of the wall of his house but the defendants objected to the same and did not allow the plaintiff to use the said wall for any purpose claiming the same to be his property. It is further stated that on 15.07.09, the defendants entered the house of plaintiff and did not allow the plaintiff to continue re construction of the house. Again on 26.07.09, defendants tresspassed in the house of plaintiff and tried to pull down the suit wall. PCR was called by the plaintiff but the police did not take any action. Hence, this suit has been filed.
3. Written statement was filed on behalf of defendants wherein it is stated that suit is liable to be dismissed as no cause of action arose in favour of plaintiff for filing of the present suit. Further, the suit is bad for mis joinder of parties as the defendant no.2 has wrongly been impleaded as defendant in the present suit. Further, the plaintiff is not the owner of house bearing no. 25 & 27 2 Mohan Lal Vs. Chand & Anr.
CS No. 249/09as he has not filed any document to substantiate the allegation of ownership of house no. 25 & 26 and has also not given the total area of these alleged aforesaid house no. 25 & 27. The defendants have denied all the averments made in the plaint by the plaintiff.
4. Replication filed on behalf of plaintiff wherein it is stated that defendant no.2 is controlling and managing the whole facts and circumstances of the case. It is further submitted that plaintiff is sole and absolute owner and in possession of houses no. 25 & 27 in lal dora of village abadi deh of village Dhansa and the land in the lal dora of a village do not have any revenue record at all & it is the ancestral land of the plaintiff. However, all other averments in the reply are denied.
5. Vide order dated 21.10.09, following issues were framed by Ld. Predecessor:
1. Whether the plaintiff has no locus standi to file the present suit?OPD.
2. Whether the plaintiff is exclusive owner of wall between point A to B as shown in site plan?OPP.
3. Whether the plaintiff is entitled for the relief of permanent injunction?OPP.
4. Relief.
6. In support of his case, plaintiff has examined five 3 Mohan Lal Vs. Chand & Anr.
CS No. 249/09witnesses. Sh. Jile Singh as PW1, Sh Jaipal as PW2, Sh. Lakhmi Chand as PW3, PW4 Sh. Balwan Singh and Sh. Mohan Lal as PW5. Thereafter, plaintiff evidence was closed on 13.07.12.
7. In defendant evidence, two witnesses have been examined. Sh. Narayan Singh as DW1 and Sh. Hoshiar Singh as DW2. Defendant evidence was closed on 10.07.14.
8. I have heard the arguments of Ld counsels for the parties and perused the material available on record. My issuewise findings are as under:
9.Issue no.1: Whether the plaintiff has no locus standi to file the present suit?
9.1 The burden to prove this issue lied on the defendants and the defendants have failed to discharge the burden. In order to seek remedy of injunction, there must be infringement of plaintiff's right to the property or there has to be some real threat, be it present or prospective, to the property. Such threat or violation vests the affected person with a right to bring an action of injunction to protect his right. In the present case the right of the plaintiff to the wall is being affected by refusal of the defendants to allow him to reconstruct the same. Thus, the plaintiff is fairly entitled to seek the relief of injunction and there is nothing on record which may suggest that the plaintiff has no locus standi to institute the present suit. The defendants have examined only two 4 Mohan Lal Vs. Chand & Anr.
CS No. 249/09witnesses who have not adduced any evidence to prove the otherwise.
9.2 Therefore the issue No. 1 is decided in favour of the plaintiff and against the defendants.
10. Issue No. 2: Whether the plaintiff is exclusive owner of wall in question?
& Issue no.3: Whether the plaintiff is entitled to relief of permanent injunction?
10.1 The burden to prove these issues was on the plaintiff. Both the issues are correlated and decision of issue no. 2 will invariably have bearing upon the decision on issue no. 3. The plaintiff has not produced any documentary evidence to prove that the disputed wall is his exclusive property. However, he has examined himself as PW5 and other four witnesses PW1 to PW 4 to establish his title to the disputed wall. The defendant, on the other hand, has examined two witnesses; defendant no. 2 as DW1 and one more witness as DW2 to disprove the case of the plaintiff.
10.2 Ownership of a property can be established by the proof of title. A person can prove his title to the property by documentary title deeds or other modes such as proof of long and continuous possession. In the present case, there is no dispute 5 Mohan Lal Vs. Chand & Anr.
CS No. 249/09with regard to the fact that plaintiff has been in continuous and uninterrupted possession of the property no. 25 and 27 Dhansa Village, Delhi which are situated to east of the suit wall. Similarly, there is no denying that the house located in the west side of the disputed wall is the property of the defendants which they have purchased from their predecessor in interest Lala Prithi Singh.
10.3 The sole point for determination is whether the disputed wall shown in the site plan ex PW5/2 in red ink forms part of the house of the plaintiff or of the defendants. The stand of the plaintiff is that the disputed wall was constructed by him and Lala Prithi Singh was only allowed to use the wall to put his tin shed. On the contrary, the defendant has alleged that the disputed wall was constructed by Lala Prithi Singh who allowed the plaintiff to use the said wall to put his wooden rafters.
10.4 Among the witnesses examined by the plaintiff, PW1, PW3 and PW4 are sons of predecessor in interest who gave the vacant piece of land to the plaintiff on which he constructed his presently occupied houses. All these three witnesses have deposed that the wall in question was constructed by the plaintiff on his land while constructing his aforesaid house and Lala Prithi Singh was allowed only to use the same for placing his tin shed. They have also testified that the house of the plaintiff was constructed prior to the house of Lala Prithi Singh. They have also deposed that plaintiff was given the west side property of the wall in the year 6 Mohan Lal Vs. Chand & Anr.
CS No. 249/09195252, whereas Lala Prithi Singh purchased the property presently occupied by the defendants in the year 196566.
10.5 The testimony of PW1 and PW4 is a little shaky to the extent that land occupied by the plaintiff was gifted to him by their fathers in 195253 and after two or three years he constructed the house because in their cross examination they have admitted that these facts became known to them through the information given to them by their fathers and they have no personal knowledge of the fact thereby rendering their evidence hearsay.
10.6 However, PW3 in his cross examination has deposed that the land was gifted to the plaintiff by his father in his presence. Thus he has personal knowledge of the facts relating to the property of the plaintiff and he has categorically stated that the disputed wall was constructed by the plaintiff on his land. The plaintiff himself has deposed as PW5 stating himself to be the owner of the wall. He has deposed that the wall was constructed by him on his land gifted to him by father of PW1, PW3 and PW4.
10.7 Plaintiff has also examined his neighbor as PW2, but his testimony also suffers from the same infirmity as that of PW1 and PW4. His knowledge with regard to the facts of the case has been derived from his father and is therefore not admissible being hearsay.
7 CS No. 249/0910.8 Nonetheless, the defendant could not dent any hole in the testimony of plaintiff and PW3 during cross examination and their testimony stands the ground. Even testimonies of PW 1 and PW4 can be relied upon to the extent that the house of Lala Prithi Singh was constructed later in time.
10.9 On the other hand, the defendants have not produced any clinching evidence to prove that the wall formed the part of the house of their predecessor interest namely Lala Prithi Singh. In the first place, defendant no. 1 who is alleged to be the owner of the house to the eastern side of the wall and the disputed wall has not come to the witness stand. He has not deposed before the court inviting an adverse inference against him.
10.10 It is settled law that failure of parties to a suit to give testimony as a witness furnishes a ground to draw an adverse inference against them. As early as in 1927, the Privy Council in Sardar Gurbakhsh Singh v. Gurdial Singh [AIR 1927 PC 230] deprecated this practice by calling it 'a bad and degrading practice'. Lord Atkinson dealt with the subject in Lal Kunwar v. Chiranji Lal [ILR (1910) 32 All 104 : 37 IA 1 (PC)] and remarked "But in any view her nonappearance as a witness, she being present in court, would be the strongest possible circumstance going to discredit the truth of her case."
8 CS No. 249/0910.11 This view has remained unflinching over the time. The Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh [AIR 1931 Bom 97 : 32 Bom LR 924] observed as under:
"It is the bounden duty of a party personally knowing the facts and circumstances, to give evidence on his own behalf and to submit to crossexamination and his nonappearance as a witness would be the strongest possible circumstance which will go to discredit the truth of his case."
10.12 The Allahabad High Court in Arjun Singh v. Virendra Nath [AIR 1971 All 29] held:
"The explanation of any admission or conduct on the part of a party must, if the party is alive and capable of giving evidence, come from him and the court would not imagine an explanation which a party himself has not chosen to give. If such a party abstains from entering the witnessbox it must give rise to an inference adverse against him."
10.13 Again,a Division Bench of the Punjab and Haryana High Court also in Bhagwan Dass v. Bhishan Chand [AIR 1974 P&H 7] drew a presumption under Section 114 of the Evidence Act that if a party does not enter the witnessbox, an adverse presumption has to be drawn against that party.This settled proposition of law 9 Mohan Lal Vs. Chand & Anr.
CS No. 249/09has been discussed in detail by the Apex Court in Iswar Bhai C. Patel v. Harihar Behera, (1999) 3 SCC 457.
10.14 In the present case, there is no explanation as to why the defendant no. 1 has not chosen to depose in the court. The defendant No. 2 has appeared as DW1, but his testimony is not even in consonance with their pleadings. In his affidavit by way of evidence Ex. DW1/A, defendant No. 2 has stated that the property presently occupied by the defendant No. 1 was purchased by him in the name of younger brother namely defendant No. 1. In the written statement, it has been claimed that the house was purchased by defendant No. 1 and the disputed wall was the part of the house. The defendant No. 1 has not taken the witness stand, though in the facts and circumstances of the case, his testimony was very important.
10.15 In any event, the defendants have admittedly purchased the built up house from the grandson of Lala Prithi in the year 199798 which implies that defendants have not seen the construction of the house. There is no evidence to show as to from which source they derived the information about the construction of the wall by Lala Prithi Singh. Defendant No. 2 who has deposed as DW1, has admitted in his cross examination that he was not present when their predecessor in interest constructed the house. Thus, the defendants have no personal knowledge about the construction of house by Lala Prithi Singh. The house has been 10 Mohan Lal Vs. Chand & Anr.
CS No. 249/09purchased by them from latter's grandson, but the grand son has not been made a witness.
10.16 DW2 has deposed to have seen the entire chain of events respecting the disputed property and testified that house of Lala Prithi Singh was in existence when the plaintiff was given land and the plaintiff is falsely claiming the ownership of defendant's wall. However, in para 2 of his affidavit by way of evidence which is ex DW2/A, he has categorically stated that he was 25 years old when the land over which disputed wall exists was gifted vide a regd. Gift deed by late Sh. Mool Chand to the plaintiff's father". The evidence of DW2 is self contradictory and cannot render much assistance to reach any conclusion.
10.17 The defendants have also relied upon certified copy of registered deed of the gift deed obtained from the office of Sub registrar and the same has been proved as Ex DW1/Y. This document has been proved by defendant No. 2 and no witness from the office of the concerned sub registrar has been called to prove the same. However, the plaintiff has not raised any objection to the mode of proof and he has only objected to the attestation of the affidavit which is not much relevant. It is pertinent to note that defendant No. 2 appearing as DW1 in his cross examination has testified that the land on which plaintiff house is built was sold to him by the previous owner, whereas by document Ex DW1/Y, he wants to prove that land was gifted to the plaintiff. In the absence 11 Mohan Lal Vs. Chand & Anr.
CS No. 249/09of any objection regarding the mode of proof, the exhibit DW1/Y can be read into evidence. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752, it has been observed that "The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular."
12 CS No. 249/0910.18 In any case, the defendant has relied upon Ex DW1/Y to establish that at the time when the plaintiff was given the land, the house of Lala Prithi Singh was already in existence. DW2 has also deposed about the gift deed and has stated that he read the gift deed and wherein the house of Lala Pirthi Singh was shown to exist on the east side of the gifted plot.
10.19 However, the claim of the defendants about the existence of the house of Lala Prithi Singh is belied by the document Ex DW1/Y itself. The defendants have placed on record the hindi translation of the document which is in most part an Urdu translation. The translation shows that in the west side of the gifted land , i.e. Maghrib was the land of Lala Prithi Singh. It mentions "aaraaji Lala Prithi Singh". Aaraaji is an Urdu word which in English means land. Thus, there was only a land in the name of Lala Prithi Singh and not any constructed house. This fact becomes clearer when we further read the document which shows that in the north side, i.e. Shamal was the "Makan" of someone whose name is not readable. Makan is again an Urdu word which in English means house. Thus, where there was a built up house, the document Ex DW1/Y has mentioned the word Makan and where there was only a vacant land, it mentions the word Aaraaji. It goes without saying that as per this document, there was only vacant land in the west side of the disputed wall owned by Lala Prithi Singh.
13 CS No. 249/0910.20 Thus there is high degree of probability that the plaintiff has been in possession of the disputed wall. Possession is prima facie proof of ownership. The rule that possession is presumptive proof of ownership is embodied u/s 110 of the Evidence Act and it shifts the onus of proving otherwise on the person who denies the ownership. The presumption under this section would apply only if two conditions are satisfied : one that the possession of the plaintiff is not prima facie wrongful and second that the title of the defendant is not proved.
10.21 In the present case, the possession of the plaintiff with regard to the wall cannot be said to be wrongful because the defendant has not produced any such evidence. On the contrary, the plaintiff has shown himself to be in long and uninterrupted possession of the disputed wall. Moreover, the defendant has also failed to prove his ownership of the disputed wall. The witnesses produced by defendants have not been able to establish the ownership of the disputed wall in the defendant. The defendants have also not produced any documentary evidence to prove the ownership despite the fact that they had purchased the property from Lala Prithi Singh only recently. U/s 110 of the Evidence Act possession is a good title against anyone who cannot prove a better title.
10.22 In the present case the plaintiff has produced ample 14 Mohan Lal Vs. Chand & Anr.
CS No. 249/09evidence which if read with the evidence produced by the defendants clearly shows a high degree of probability that plaintiff is the owner of disputed wall thereby shifting the onus on the defendants and it is for the defendants to discharge their onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged, so as to amount to proof of plaintiff's title. In a property dispute, in the absence of a clear and compelling testimony or documentation to the contrary, the person in actual possession is presumed to be the right owner. The principle is defined as UTI POSSIDETIS (as you possess, so may you continue to possess). The defendant No. 1, who is alleged to be the owner of the property, has not even given his testimony. Thus defendants have failed to discharge the onus.
10.23 Since the plaintiff is owner of the disputed wall he has every right to reconstruct the same or used the same in any manner. Any obstruction in his way by the defendants to use or reconstruct the wall shall amounts to violation of legal right of the plaintiff. The plaintiff has made out a strong case in his favour for grant of permanent injunction and in the absence of relief of injunction the plaintiff has much likely to suffer irreparable loss which cannot be compensated in terms of money.
10.24 Thus both issue No. 2 and 3 are decided in favour of the plaintiff and against the defendant.
15 CS No. 249/0911. Relief: In view of aforesaid discussion, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendants thereby defendants are restrained from interfering in re construction of his house and using his eastern side suit wall, in the process of reconstruction and restrain them not to interfere and demolish the suit wall of the plaintiff which is intervening eastern side wall of the plaintiff house of the plaintiff and defendant no.1, situated in village abadi of Village Dhansa, Delhi as shown in red colour in the site plan.
12. Decree sheet be prepared accordingly.
13. File be consigned to record room.
Announced in the open court (Deepak Sherawat)
today i.e on 25.03.15 ACJ/CCJ/ARC/DC/ND
16