Delhi District Court
Sh. Vijay ) vs Unknown on 30 January, 2021
IN THE COURT OF SH HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
RCA DJ ADJ No. 130/2017
CNR No. DLSW010124532017
IN THE MATTER OF:
1. Sh. Vijay )
S/o Late Nand Lal )
R/o WZ - 187, Main Road )
Palam Colony, Sadh Nagar )
New Delhi - 110077 )
... Appellant No. 1/Defendant No. 1
2. Smt. Anandi Devi )
S/o Late Nand Lal )
R/o WZ - 187, Main Road )
Palam Colony, Sadh Nagar )
New Delhi - 110077 )
... Appellant No. 2/Defendant No. 2
v.
1. Sh. Bodh Raj Gosthwal )
S/o Late Vaid Gopal Gosthwal )
R/o House No. WZ - 454C )
Main Road, Palam Colony )
Raj Nagar Part - 1 )
New Delhi 1100077 )
... Respondent No. 1/Plaintiff No. 1
2. Sh. Jugal Kishore )
S/o Late Vaid Gopal Gosthwal )
R/o House No. WZ - 454C )
Main Road, Palam Colony )
Raj Nagar Part - 1 )
New Delhi 1100077 )
... Respondent No. 2/Plaintiff No. 2
RCA DJ ADJ 130/2017
Page No. 1/27
Mr. Ajay Dabas, Ms. Priyanka Dagar & Mr. Ravi Dagar, Advocates for
the appellants.
Mr. S.C. Singhal & Ms. Renu Gupta, Advocates for the respondents.
Date of institution of appeal: 26.09.2017
Date of judgment reserved: 18.12.2020
Date of pronouncement of judgment: 30.01.2021
JUDGMENT
1. This is an appeal under Section 96 read with Order XLI, Rule 1 of the Code of Civil Procedure, 1908 (CPC) preferred by appellants/defendants, namely, Vijay (Appellant No.1/defendant No.1) and Anandi Devi (Appellant No.2/defendant No.2) against the judgment and decree dated 08.05.2017 (hereinafter "impugned judgment") passed by Ld. Civil Judge, South West District, Dwarka Courts, Delhi (hereinafter "trial court") wherein a suit for mandatory injunction, mesne profits and damages preferred by the respondents/plaintiffs, namely, Bodhraj Gosthwal (respondent No.1/plaintiff No.1) and Jugal Kishore (respondent No.2/plaintiff No.2) has been decreed against the appellants herein. As per the impugned judgment, the trial court passed a decree of mandatory injunction directing the appellants/defendants to hand over the peaceful and vacant possession of an immovable property i.e. plot of land ad- measuring 167yds2 out of khasra No.67/20/1 and 21, Palam Enclave, New Delhi (hereinafter "suit property"), decree of mesne profits at the rate of ₹300/- per day w.e.f. 21.09.2015 till the institution of the suit and further from the date of institution of the suit till the date of actual handing over RCA DJ ADJ 130/2017 Page No. 2/27 of the vacant and physical possession of the suit property to the respondents/plaintiffs.
2. For the sake of clarity and convenience, the parties are also referred by their rank and status before the trial court.
3. The grounds of appeal urged by the appellants in the memorandum of appeal are as under:
(i) The impugned judgment passed by the trial court is liable to be set aside as the trial court passed the impugned judgment on complete misapplication of law and an incorrect appreciation of facts and material on record.
(ii) The trial court gravely erred by relying upon the respondents/plaintiffs' assertions as a gospel truth and failed to apply judicial mind to the material facts and record. The trial court failed to exercise the powers vested in it under Order I, Rule 10, CPC to implead the legal representatives of Chander Ram as a party to the suit who also had allegedly executed the release deed dated 07.03.1990 in favour of his brother, namely Gopal Vaid (now deceased). The trial court failed to appreciate that the respondents/plaintiffs' entire case was based upon the alleged release deed dated 07.03.1990 and it was necessary to implead the legal representatives of Chander Ram of such alleged release deed, particularly, when allegations of fraud and forgery were levelled by the appellants/defendants against the respondents/plaintiffs.
(iii) The impugned judgment passed by the trial court is marred by lack of holistic approach as it fails to broaden the scope of its enquiry while deciding and adjudicating the dispute amongst the RCA DJ ADJ 130/2017 Page No. 3/27 parties and rendered the impugned judgment against the canons of jurisprudence.
(iv) The trial court gravely erred in framing the issue No.1 and casting the onus upon the appellants/defendants. The trial court also erred in holding that the appellants/defendants failed to rebut the presumption that had arisen in favour of the alleged release deed as no suit was filed by the appellants/defendants challenging the said release deed. The appellants have urged that the reason no such suit challenging the release deed was filed because during the lifetime of Nand Lal, no such deed was shown by the respondents/plaintiffs and no mention of the same was made by late Gopal Vaid or his successors-in-interest during the lifetime of Nand Lal. The trial court failed to appreciate that the respondents/plaintiffs maintained stoic silence about signing and execution of the release deed with the sole intention of usurping the suit property.
(v) The trial court failed to consider the fact in the replication filed by the respondents/plaintiffs to the written statement that the respondents/plaintiffs' averment that the release deed had already been tested in another civil suit pertaining to a landlord tenant dispute, however, no such details of the civil suit were either averred in the replication or evidence was brought on record to that effect. The trial court miserably failed to consider that the release deed must have been obtained by late Gopal Vaid and his father from his brother Nand Lal and Chander on the pretext of contesting the aforesaid suit. The trial court failed to appreciate that Gopal Vaid obtained the alleged release deed in some unscrupulous manner and took advantage of the fiduciary RCA DJ ADJ 130/2017 Page No. 4/27 relationship amongst the brothers, merely for the reason that Nand Lal never intended to release his share in the suit property in favour of Gopal Vaid which lays without any consideration. It is also urged by the appellants in the grounds of appeal that they being laymen were not aware about the implication of law and whether the alleged release deed is required to be challenged in a court of law. However, the appellants herein have already challenged the alleged release deed by preferring a separate suit at South West District, Delhi, as they were not ousted by operation of law in their right to challenge the alleged release deed, until the time of passing of the impugned judgment.
(vi) The impugned judgment is bad in law and as the same is based on conjunctures and surmises. The trial court while passing the impugned judgment and adjudicating the dispute amongst the parties wavered from a hyper-technical approach to the most unreasonable one.
(vii) The trial court failed to adhere to the cardinal rule of principle of probability, which mandates a rationally and valid approach while dealing with the facts and material on record before the court, which is apparent from the impugned judgment that the trial court not only ignored but brushed aside the suspicious conduct of the respondents/plaintiffs, particularly under what circumstances and manner the alleged release deed was propounded.
(viii) The trial court failed to appreciate that Gopal Vaid during his lifetime never asserted and/or relied upon the alleged release deed for conferring his ownership rights over the suit property.
The trial court failed to consider that Gopal Vaid in response to RCA DJ ADJ 130/2017 Page No. 5/27 the notice of assessment issued by municipal corporation of Delhi (MCD) stated that he did not rely upon the alleged release deed to establish his alleged ownership rights over the suit property.
(ix) The trial court failed to consider and appreciate the relevant facts that the suit property was purchased jointly by Gopal Vaid, Nand Lal and Chander Ram and thus the two brothers out of three releasing the same in favour of one brother without any consideration was out of question. The trial court omitted error of law by not framing an appropriate issue of law, which arose out of pleadings of the parties.
(x) The trial court erred by ignoring the fact that the entire case of the respondents/plaintiffs was based upon vague and general plea in as much as the plaint was totally silent with regard to circumstances leading to the execution of the alleged release deed after about 25 years of the execution of the sale deed dated 01.10.1965, as per which the suit property was jointly owned by all three brothers.
(xi) The trial court gravely erred by ignoring the testimony of Bodh Raj Gosthwal (PW1) which was contradictory to the plea urged in the plaint. The trial court failed to appreciate that PW1 during his cross-examination admitted a defence put forth by the appellants/defendants as he admitted that not only Nand Lal resided along with his family after its purchase in the year 1965 but also Nand Lal undertook construction on the suit property. The trial court failed to consider that in paragraph No.3 of the plaint, the plaintiffs had pleaded that the construction on the suit property was raised by their father Gopal Vaid Gosthwal after RCA DJ ADJ 130/2017 Page No. 6/27 becoming the absolute owner of the suit property by virtue of release deed dated 07.03.1990.
(xii) Lastly, the impugned judgment passed by the trial court is bad in law as the same was arrived at without any proper reasoning, non-appreciation of the pleadings and documents placed on record by the parties.
Submissions advanced by the Ld. counsel for the parties.
4. Mr. Ajay Dabas learned counsel for the appellants raised the curtain on his arguments by submitting that the impugned judgment passed by the trial court deserves to be set aside as not only the same is contrary to material facts, evidence lead by the parties but also contrary to law. The learned counsel for the appellants further submitted that the plaintiffs preferred a suit for mandatory injunction, damages, and mesne profits against the defendants on the ground that the suit property was purchased in the year 1965 by Gopal Vaid, Nand Lal and Chander Ram, who all were the sons of Mangal Ram, by virtue of a sale deed dated 01.10.1965. The plaintiffs based their claim on the alleged release deed by which Nand Lal and Chander Ram released their shares in the suit property in favour of their brother Gopal Vaid, who became the absolute owner of the suit property. The learned counsel further submitted that the plaintiffs are the sons of Gopal Vaid and the defendants, namely Vijay (defendant No.1) is the son of Nand Lal, and Anand Devi (defendant No.2) is the widow of Nand Lal. The learned counsel further submitted that it is the case of the plaintiffs that pursuant to the execution of release deed, Nand Lal was permitted to occupy and reside in the suit property, which as per the averments made in the plaint comprised of two rooms, one shop, tin shed covered veranda, bathroom, latrine, and a passage. The plaintiffs have also averred in the plaint that Gopal Vaid permitted Nand Lal to reside in the suit property with his family without paying any charges, however, the RCA DJ ADJ 130/2017 Page No. 7/27 electricity and water charges were to be paid on consumption basis and the house tax was paid by Gopal Vaid.
5. Mr. Dabas, learned counsel for the appellant further submitted that Gopal Vaid died intestate on 27.08.2011 and the suit property devolved upon his two sons (plaintiffs) and five daughters. The five daughters of Gopal Vaid released their respective shares in favour of the plaintiffs by virtue of a relinquishment deed dated 25.10.2013 and resultantly, the plaintiffs became the absolute owner of the suit property. The plaintiffs extended the licence granted by their father to Nand Lal for the purpose of living with his family without any charges but unfortunately, Nand Lal also died in January 2015 and post his demise the plaintiffs were not ready and willing to extend the licence to the defendants. The learned counsel further submitted that it is averred by the plaintiffs in their plaint that at request of the defendants, the plaintiffs granted six months' time to them to find suitable accommodation and vacate and hand over the physical possession of the suit property to them. The learned counsel further submitted that the plaintiffs issued notice dated 13.09.2015 and 14.09.2015 revoking the licence and demanding that the defendants remove their belongings and hand over the vacant possession of the suit property to them.
6. The learned counsel for the appellants further submitted that the plaintiffs have averred in their plaint that the defendants filed a false and frivolous reply of the notice issued by the plaintiffs, however, the notice was replied by the defendants, wherein the defendants clearly stated that their father was the joint owner of the suit property and constructed the same. The learned counsel further submitted that the defendants clearly stated in their reply that they have been residing in the suit property for more than 35 years.
RCA DJ ADJ 130/2017 Page No. 8/277. Mr. Dabas, learned counsel for the appellants drew the attention of the court to paragraph No.16 of the impugned judgment to point out that the trial court gravely erred by considering the defence and arguments of the defendants that Vijay (DW1) deposed in his evidence by way of affidavit that the release deed was not shown by the plaintiffs during the lifetime of their father, which the trial court held as vague and proceeded to observe that even if the defendants were ignorant about the release deed and they gained knowledge about its existence after institution of this suit, they till date have not filed any suit to get the release deed declared as null and void. The learned counsel further added that the release deed has been very well challenged by the appellants/defendants by preferring a suit which is pending adjudication before the court of Ld. Addl. District Judge- 05, South West District, Delhi.
8. Mr. Dabas, learned counsel for the appellants shifted the weight of his arguments by submitting that the trial court not only failed to frame appropriate issue, rightly cast the onus to prove, but also miserably failed to appreciate that the case urged before the trial court by the plaintiffs was a case of an utter abuse of process of law. The learned counsel for the appellant submitted that the impugned judgment is hit by Section 111 of the Indian Evidence Act, 1872 (hereinafter "Evidence Act"), as the signing, execution and registration of a release deed by two brothers namely, Nand Lal and Chander Ram in favour of Gopal Vaid was asserted by the plaintiffs in their plaint, which was in active confidence. The learned counsel further submitted that the trial court gravely erred by saddling the defendants with onus to prove issue No.1 that the release deed is false and a forged document. The learned counsel further drew the attention of the court to the replication, where under paragraph No.3 under the heading of reply on merits, the plaintiffs for the first time averred that the release deed RCA DJ ADJ 130/2017 Page No. 9/27 in question already stands tested in a trial, when a suit was filed by the father of the plaintiffs against the tenants. The learned counsel further submitted that the trial court failed to appreciate and consider that the release deed must have been signed and executed by the brothers in favour of their brother Gopal Vaid for the purpose of facilitation to represent and pursue such a suit and above all the same being without any consideration.
9. The learned counsel further submitted that the trial court gravely erred to consider the clear admission made by plaintiff No.1 Bodh Raj during his cross-examination that the construction on the suit property was undertaken by Nand Lal. The learned counsel for the appellants submitted that one who seeks equity must do equity, and should approach the court with clean hands, whereas in the present case the trial court let the said legal principle be dispatched to gaols.
10. The learned counsel for the appellants placed reliance upon the judicial pronouncement by the Apex Court in the case of Krishna Mohan Kul v. Pratima Maity 1 wherein it has been held that when plot, misrepresentation, or undue influence is alleged by a party to the suit normally the burden to prove such fraud, undue influence or misrepresentation is on the party who avers, but when a person is in fiduciary relationship with another and latter is in a position of active confidence, the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, and he has to prove that there was fair play in the transaction and and that the transaction is genuine and bona fide.
11. The learned counsel further added that in the said judgment, the Apex court held that such a case the burden of proving the good faith of transaction is thrown upon the dominating party, that is to say, the party 1 (2004) 9 SCC 468 RCA DJ ADJ 130/2017 Page No. 10/27 who is in a position of active confidence, which in the present case were none other than the plaintiffs. The learned counsel for the appellants submitted that the trial court failed to appreciate that it was the father of the plaintiffs, who was in active confidence and thereafter the plaintiffs, who ought to have proven that not only the release deed was genuine, bona fide but also they being in a dominant position acted fairly and without any mala fide.
12. Mr. S.C. Singhal learned counsel for the respondents valiantly contended all the arguments advanced by learned counsel for the appellants, in a short and crisp manner. The learned counsel submitted that the arguments advanced by the learned counsel for the appellants is beyond the pleadings. The learned counsel read out the plaint and the written statement filed by the parties before the trial court. The learned counsel further read out the cross-examination of Bodhraj (PW1) and submitted that no such suggestion was made by the defendant to PW1 during his cross-examination.
13. Mr. Singhal, learned counsel for the respondents further submitted that Vijay Kumar (DW1) in his deposition about the release deed executed by his father did not state about active confidence - See evidence by way of affidavit of DW1 - Ex.DW1/A. The learned counsel further submitted that DW1 has stated in his evidence by way of affidavit that the release deed was never executed by his father Nand Lal in favour of Gopal Vaid, and the release deed is false and forged. The learned counsel for the respondents further submitted that for the reasons best known to the defendants, nothing stopped the defendants to seek invocation of the Order XIV, Rule 5, CPC, which empowers the parties to seek addition, amendment and striking out of issues at any time before passing of a decree. The learned counsel further added that the case at hand as urged by the RCA DJ ADJ 130/2017 Page No. 11/27 appellants is nothing but of desperate litigants, who have resorted to advance arguments beyond pleadings and such arguments by urging new grounds such as of active confidence.
14. The learned counsel for the respondents submitted that the release deed (Ex.PW1/2) in question was tendered in a landlord tenant dispute on 21.09.2004. The learned counsel further submitted that there is no error either before proceeding before the trial court or in the impugned judgment and trial court correctly placed the onus upon the defendants to prove their case for the release deed as a false and forged document. The learned counsel submitted that the ===bedrock ?== of a case urged by the plaintiffs and the defence urged by the defendants to the plaintiffs' claim and it is on those lines the parties lead their evidence and once the parties have led their evidence to prove the issues asserted by them and repeatedly evidence, the question of placing of onus become meaningless.
15. Mr. Singhal, learned counsel for the respondents submitted that Vijay Gosthwal (DW1) during his cross-examination admitted that the premises under his occupation have been correctly shown in the site plan. The learned counsel further submitted that the DW1 during his cross- examination stated that the portion in his possession was constructed by his father, but he cannot tell when it was constructed. The learned counsel further submitted that DW1 admitted neither any electricity bill, water bill nor house tax receipts are in the name of his father. The learned counsel further submitted that the DW1 at page no. 2 of his cross-examination stated that he has not filed any such record and further stated that he does not possess any such bills in the joint name of three brothers. The learned counsel further added that DW1 stated during his cross-examination that he cannot produce any written document to show that the property in question was constructed by his father.
RCA DJ ADJ 130/2017 Page No. 12/2716. The learned counsel for the respondents submitted that the defendants have urged at the appellate stage that the plaintiffs and their father exploited the fiduciary relationship, but no evidence has been brought on record by them before the trial court to assail and prove such exploitation.
17. Mr. Singhal learned counsel for the respondents concluded his arguments on the note that the impugned judgment passed by the trial court merits no interference by this appellate court and same deserves to be upheld and the costs of the appeal be also awarded to the respondents.
18. Mr. Ajay Dabas learned counsel for the appellants rejoined his arguments and submitted that once the trial court proceeded by wrongly placing the onus to ptove, the adjudication of the dispute would be marred by turning the case upside down. The learned counsel submitted that rather than the plaintiffs being asked to prove their assertion before the trial court that the release deed is a genuine document and not marred by any mala fide, the trial court wrongly placed onus upon the defendants to prove that the release deed is a forged and fabricated document. The learned counsel for the appellants concluded his arguments on the note that the impugned judgment and decree be set aside and the respondents be directed to return the entire money paid by the appellants to the respondents in terms of the impugned judgment and decree and the order dated 02.02.2019 passed by this court and both be ordered to be set aside.
Analysis & Reasoning
19. The dispute at hand is amongst the legal heirs of Nand Lal and Gopal Vaid, who were the sons of Mangal Ram. The three sons of Mangal Ram, namely, Gopal Vaid, Nand Lal and Chander Ram jointly purchased the suit property by virtue of a registered sale deed dated 01.10.1965.2 Nand Lal 2 Ex.PW1/1 RCA DJ ADJ 130/2017 Page No. 13/27 and Chander Ram by virtue of a registered release deed dated 07.03.19903 released their share in the suit property in favour of their brother Gopal Vaid. It is the case of the plaintiffs that their father Gopal Vaid permitted Nand Lal, his wife and family members to occupy and live in the suit property which comprised of two rooms, one shop, tine shed, covered veranda, bathroom, kitchen, latrine and a passage without any charges, however, house tax was paid by Gopal Vaid.
20. After the demise of Gopal Vaid on 27.08.2011, the suit property devolved upon his seven legal heirs - two sons and five daughters. Later the five daughters relinquished their shares in the suit property in favour of their brothers by virtue of a relinquishment deed dated 25.10.2013. The plaintiffs permitted their uncle Nand Lal to continue living in the suit property without any charges. In short, they extended the permissive licence granted by their father to Nand Lal. Nand Lal died in January 2015 and the plaintiffs decided not to extend the permissive licence to the widow and son of Nand Lal (appellants herein). The plaintiffs asked the defendants to vacate the suit property and handover the possession of the same to them, the defendants sought six months' time to find out a suitable accommodation, however, when the defendants failed to vacate the suit property, the plaintiffs were constrained to issue notice to the defendants calling upon them to remove all their belongings and hand over the peaceful and vacant possession of the suit property to them. It is averred by the plaintiffs that the notice dated 13.09.2015 was inadvertently sent to a wrong address due to a typographical error and, therefore, another notice was sent on 14.09.2015 at the correct address of the defendants. The plaintiffs have averred in the plaint that defendants sent a false and frivolous reply to their notice and therefore, the plaintiffs were constrained 3 Ex.PW1/2 RCA DJ ADJ 130/2017 Page No. 14/27 to file a suit for mandatory injunction, damages, and mesne profits against the defendants.
21. On the other hand, the defence urged by the defendants is based on the fulcrum that suit property was jointly purchased by three brothers - Gopal Vaid, Nand Lal and Chander Ram. However, the defendants have urged in their defence that the release deed dated 07.03.1990 is a false and fabricated document. The defendants specifically denied in their written statement that the release deed dated 07.03.1990 was a genuine document. It was contended by the defendants that the said release deed is a false and forged document which does not bear the signature and thumb impression of Nand Lal, as Nand Lal never executed any such release deed on 07.03.1990. The defendants in their written statement have also urged the defence that it was Nand Lal who was residing in the suit property and who undertook construction on the suit property in which the defendants have been residing from the date of its purchase. It is also the defence of the defendants that Nand Lal undertook construction out of his own funds and the suit property was never vacated by Nand Lal.
22. The plaintiffs in their replication contended a preliminary objection under reply on merits. The plaintiffs in their replication have averred that the averments made by the defendants in their written statement that Nand Lal never released his share in favour of Gopal Vaid is incorrect. It is also averred by the plaintiffs in the replication that the release deed dated 07.03.1990 is a registered document and same was executed by both Nand Lal and Chander Ram in favour of Gopal Vaid. The plaintiffs have averred in their replication that the said release deed has already been tested in another civil suit filed against the tenants and the same was proved in accordance with law. It is also averred by the plaintiffs that not only the electricity and water connection but also the suit property was assessed in RCA DJ ADJ 130/2017 Page No. 15/27 the name of Gopal Vaid and all the documentary evidence has been filed by the plaintiffs. The plaintiffs have averred in their replication that neither Chander Ram nor Nand Lal during their lifetime refuted the relinquishment deed nor the same has ever been challenged by the defendants herein.
23. From the trial court record, it is traced that there were three witnesses who testified in favour of the plaintiffs' case. Bodhraj Gosthwal (PW1) and two summoned witnesses - Sandeep Kumar (PW2), LDC from the office of Sub Registrar-IX, Kapashera, Delhi, and Anoop Singh (PW3), record clerk from the office of Sub Registrar-II, Kashmere Gate, Delhi.
24. On the other hand, the defendant No.1 Vijay Kumar (DW1) was the solitary witness of the defendants to lead the defence evidence.
25. Every suit must be instituted by the presentation of a plaint or any such other manner as prescribed and facts may be proved by way affidavit. Every such plaint must comply with the general rules as to pleadings and with the provisions of the Code of Civil Procedure, 1908 (CPC) dealing with the plaint. Although, the term 'plaint' has not been defined in the CPC, it may be described as a complaint or a form of action. It is a pleading of the plaintiff. The plaint must clearly show that the defendant is or claims to be interested in the said matter and that he is liable to be called upon to answer the plaintiff's claim/demand. The plaint must contain all facts denoting the jurisdiction of the court and a plaint will be deficient and defective if it does not contain those facts. Every plaint must state specifically the relief that plaintiff claims, either singly or in the alternative, and and it is not necessary to ask for general and other reliefs which may always be given as the court may think just to the exception as it has been asked for. The same rule applies to any relief claimed by the defendant in the written statement.
RCA DJ ADJ 130/2017 Page No. 16/2726. Although, the CPC does not define the term 'written statement', it may be described as a reply of the defendant to the plaint of the plaintiff, in short, the statement of defence. It is a pleading of the defendant dealing with all the material facts stated in the plaint but not the evidence by which those facts are to be proved. It may contain new facts in favour of the defendant against the legal objections or claim of the plaintiff. The written statement must be filed within 30 days from the date of service of summons upon the defendant.
27. Pleadings means a plaint or a written statement. The underlying object of a pleadings is to ascertain the real dispute between the parties, to narrow down the areas of conflict, to make each side aware of the question which are to be argued, to preclude one party by taking the other by surprise and to prevent miscarriage of justice.
28. A party cannot adduce evidence and set up a case inconsistent with his pleadings. No amount of proof can substitute pleadings which are the foundation of a claim of a litigant/party. The rationale behind above rule is to appraise the opposite party, distinctly and specifically, of the case he is called upon to answer, so that he may properly prepare his defence and to preserve an accurate record of cause of action as against proceedings if any founded upon the same allegations.4
29. 'Issue' means a point in question, at the conclusion of the pleadings between the parties in an action. Issue arises when a material proposition of fact or of law is affirmed by one party and denied by the other. Material propositions are those propositions of law or fact which a plaintiff must allege to show a right to sue or defendant must allege to constitute his defence. Each material proposition affirmed by one party and denied by the other will form the subject of a distinct issue. Issues may be either of 4 Pleadings: General Principles, Halsbury's Laws of India, 5 Civil Procedure, Second Edn. p. 219.
RCA DJ ADJ 130/2017 Page No. 17/27fact or of law. However, issues may be mixed issues of law and facts also
- See Kawal Sachedva v. Madhu Bala Rana 5 and Anil Kumar v. Devender Kumar and Ors.6
30. Evidence can be led, and the case can be decided only on the issues framed - See J.K. Iron & Steel Company Ltd v. Iron & Steel Mazdoor Union, Kanpur.7 If the issues in a suit have been framed, the court cannot refuse to decide it. Conversely, a court will not determine any point on which no issue has been framed. The material from which the courts frame issues are allegations made on oath by the parties, or by any person present on their behalf, or made by the pleaders of the parties; allegations made in the pleadings or in the answers to interrogatories delivered in the suit - See Order XIV, Rule 3, CPC.
31. In short, issues are the backbone of a suit. Framing of issues has an important bearing on the trial and decision of a case. The failure to frame a necessary and proper issue is a grave irregularity. However, it does not necessarily affect the trial of a suit and if the court is satisfied that the party went to trial with full knowledge of each other's case and led evidence, there is no miscarriage of justice. Where substantial justice has been done, the absence of framing of proper issue does not vitiate the trial and a de novo trial will be ordered only if the omission to frame a particular issue affects the disposal of the trial on the merits - See Kewal Krishan v. Dina Nath.8
32. In the case at hand, the plaintiffs have clearly asserted their claim on the suit property being the legal heirs of Gopal Vaid, who had purchased the suit property along with his two brothers by virtue of a sale deed dated 5 2013 SCC Online Delhi 1479.
6CS(OS) 350 of 2018, I.A. No. 9403/2018 date of order 21.05.2019.
7AIR 1956 SC 231 8 (1992) 2 SCC 51 RCA DJ ADJ 130/2017 Page No. 18/27 01.10.1965. The plaintiffs have also asserted their claim on the suit property that Nand Lal and Chander Ram released their shares in the suit property by virtue of a registered release deed in favour of Gopal Vaid. Gopal Vaid granted permissive and gratuitous licence to his brother Nand Lal and his family members to occupy and live in the suit property. Even after the demise of Gopal Vaid, his children extended the permissive and gratuitous licence to their uncle Nand Lal.
33. However, with the demise of Nand Lal, the sons of Gopal Vaid, who had become absolute owners of the suit property by virtue of relinquishment deed executed by their five sisters in their favour, did not extend the permissive licence to the legal heirs of Nand Lal (appellants herein) and asked them to vacate the suit property. The sons of Gopal Vaid (respondents herein) did grant certain time to the appellants/defendants to vacate the suit property so that they can look for separate accommodation. The legal heirs of Nand Lal failed to vacate the suit property and upon notice issued by the legal heirs of Gopal Vaid, the defendants replied that they have been in possession of the suit property from the date of its purchase and the release deed relied upon by the plaintiffs is false and a forged document. It was also urged by the defendants in their written statement that the alleged release deed was never shown by the plaintiffs to the defendants during the lifetime of their father, Nand Lal.
34. The gravamen of the appellants against the impugned judgment passed by the trial court is that the trial court wrongly fasten the onus of issue No.1 upon the defendants to prove that the release deed dated 07.03.1990 is false and a forged document, whereas the trial court ought to have given due weightage to the pleadings of the parties and documents placed on record by the parties and the onus to prove ought to have been placed upon the plaintiffs to prove that the alleged release deed dated RCA DJ ADJ 130/2017 Page No. 19/27 07.03.1990 is a genuine document. The appellants have urged that the issue No.1 framed by the trial court was in direct contravention of Section 111 of the Evidence Act.
35. The fact is said to have been proved in a court of law when the court is persuaded to believe in its existence or to consider its existence probable
- See Section 3 of the Indian Evidence Act 1872. The phrase 'burden of proof' is defined in the Evidence Act, as whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that burden of proof lies on that person - See Section 101, Evidence Act.
36. Section 101, Evidence Act makes a distinction between (i) a party proving his case on the basis of facts which he asserts and (ii) a person bound to prove the existence of "any fact". The burden of proof or onus probandi has two different connotations and they are (a) legal burden or 'burden' proper; and (b) evidentiary burden or onus of proof.
37. As a rule, legal burden lies on a party as who has set in motion the legal machinery by filing a case. The rules relating to burden of proof are based upon are based upon practical considerations of convenience and reasonableness and also of policy and the same are enshrined in Sections 101, 102 and 103 of the Evidence Act. Section 101 and 102, Evidence Act deals with legal burden or burden of proof proper and Section 103, Evidence Act deals with the onus of proof or evidentiary proof.
38. Section 103 Evidence Act states that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. The onus of proof will rest normally upon the party who wishes the court to believe in the existence of a particular fact, RCA DJ ADJ 130/2017 Page No. 20/27 but it may shift to the person who will fail of no evidence at all is give. The burden of proving a fact which is necessary to enable a person to give evidence of another fact is on the person who wishes to give such evidence. For an instance, the onus of proving estoppel falls on the person setting up the estoppel. The burden of proving a waiver is on the person who relies on the waiver. The burden of proving mala fides is on the person alleging it.9 Where the plaintiff alleges misrepresentation by defendant the burden is on him to establish it. The burden of proving undue influence is upon the person who sets up the plea.10 A plea that a document is forged or fictitious is on the person who takes such a plea.
39. In civil cases, the standard of proof is satisfied on a balance of probabilities. When there is question as to the good faith of a transaction between the parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.
40. Under the Indian Contract Act 1872, more than mere influence must be proved to establish that influence was undue and that the person in the dominating position used the position to obtain unfair advantage for himself and so as to cause injury to the person relying upon his authority or aid. In such a case the burden of proof is on the person who is in a dominating position to establish the absence of such usage, but this applies only in a situation where the transaction appears on the face of it, or on the evidence tendered, to be unconscionable.
41. The Privy Council in Poosathurai v. Kannappa Chettiar11 held that where the consideration paid for sale of land was in part actually defrayed to cover expenses incurred by the plaintiff on the occasion of his marriages 9 See Rustom Cavasjee Cooper v. Union of India - (1970) 1 SCC 248 10 See Shiv Kirpal Singh v. V V Giri - (1970) 2 SCC 567 11 AIR 1920 PC 65 RCA DJ ADJ 130/2017 Page No. 21/27 to the two daughters of his uncles, and the marriages took place, it would require fairly strong evidence to induce any court to give countenance to the suggestion that his uncle and fathers-in-law had conspired with third defendant to subject the plaintiff to unconscionable loss.
42. This court finds that the release deed propounded by the plaintiffs as a primary document was produced for inspection and examination by the plaintiffs at the time of the trial. It is observed that the release deed has been signed by the releasor Nand Lal and Chander Ram and the attesting witnesses to the same were one Vijaypal Singh and D.B. Babber. It is not out of place to observe herein that the release deed is a compulsory registered document - see Section 17 of the Registration Act, 1908. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof would be on a person who leads evidence to rebut the presumption - See Prem Singh v. Birbal12. It is for the party questioning the genuineness of the transaction to show that in law the transaction was not valid. Book I kept in the registration office, where the registered documents are copied, entered or filed is a public document. A certified copy of a registered document issued by the Registering Officer , by copying from Book I, is a certified copy of a public document - See Rekha v. Smt. Ratnashree13.
43. The case of the defendants that the release deed is false and forged document and the same was never shown to the defendants by the plaintiffs during the lifetime of Nand Lal - See paragraph No.6 of reply on merits, written statement filed on behalf of the defendants (TCR).
AIR 2006 SC 3608 12 2005 Inlaw MP 201 13 RCA DJ ADJ 130/2017 Page No. 22/27
44. On careful and detailed skimming of the written statement and the documents filed by the defendants, it is observed that nowhere the defendants have pleaded that Gopal Vaid exploited his dominant position and the release deed signed by his full blood brothers in his favour was in breach of good faith and active confidence. This court finds that the arguments advanced by the learned counsel for the appellants before this court i.e. at the stage of first appeal are beyond pleadings and without any material documents on record to show that Gopal Vaid breached good faith and active confidence. This court fails to agree with the learned counsel for the appellants and finds no error in order dated 05.04.2016, when the issues were framed by the trial court. It is observed that the trial court rightly placed the onus to prove on the assertions that the release deed dated 07.03.1990 executed by Nand Lal, Chander Ram in favour of Gopal Vaid is false and a forged document.
45. This court cannot lose sight of the fact that since 05.04.2016, the defendants did not seek amendment, addition or striking off the issues framed by the trial court and the parties led their evidence before the trial court. It is also observed that the defendants neither summoned the other brother of Gopal Vaid and Nand Lal, Chander Ram or his legal heirs, who also released the suit property in favour of Gopal Vaid. The defendants also failed to summon any of the attesting witnesses to prove that the release deed is a false and forged document.
46. This court further observes that the ground urged by the appellants that the trial court ought to have directed impleading the legal heirs of Chander Ram as array of parties is also a Sisyphean argument, which would not take their appeal any far. The plaintiff is the master of his suit and it is for the plaintiff to implead the 'necessary' party and 'proper' party. Any failure on the part of the plaintiff to implead the necessary party and RCA DJ ADJ 130/2017 Page No. 23/27 proper party, would have a direct bearing and such omission, may cost him heavily and the consequences of non-joinder of parties would flow through for such an omission. The plaintiffs had knocked the doors of the trial court seeking mandatory injunction directing the defendants to handover the vacant possession of the suit property to the plaintiffs, pay mesne profits for their unauthorised occupation of suit property and token damages. It is the case of the plaintiffs that the defendants were in the unauthorised possession of the suit property as they failed to vacate and handover the possession of the suit property despite the permissive and gratuitous licence being terminated by the plaintiffs. It is nobody's case that the legal heirs of Chander Ram were in possession of the suit property.
47. With all due deference and humility at my command, I find that the reliance placed by the learned counsel for the appellants on Krishna Mohan Kul v. Pratima Maity14 case is clearly distinguishable on facts. The civil appeal came before the Apex Court after traversing through the Hon'ble High Court of Calcutta set aside the concurrent judgments passed by the trial court and first appellate court.
48. The Hon'ble High Court of Calcutta held that the deed of settlement purported to have been executed by one Dasu Charan Kul was void and invalid documents. The fight between relatives of the executant was about a registered deed of settlement purported to have been executed on 11.07.1970 by the executant. A suit for declaration and permanent injunction was filed by the granddaughter of Dasarthi Kul, Pratima Maity daughter of Phani Charan Kul. The suit property originally belonged to Dasarthi Kul who died in the year 1972 and subsequently his son Phani Charan Kul died in the year 1979.
(2004) 9 SCC 468 14 RCA DJ ADJ 130/2017 Page No. 24/27
49. The plaintiff Pratima Maity averred in the plaint that she gained knowledge from the office of block land reforms officer that Krishna Mohan Kul had filed a registered deed of settlement dated 11.07.1970 and it was necessary to get the said deed to be declared as void and invalid as the same was a forged document. The case of the plaintiff herein was that there was no existence of witnesses whose names appeared in the said deed which was created to grab the property of the plaintiff and it was in those background, the deed of settlement was created by Krishna Mohan Kul with an oblique motive.
50. The defendant Krishna Mohan Kul in his written statement stated that the deed was perfect and in order and there was no illegality in the same. The trial court disbelieved the plea of the plaintiff and dismissed the suit and similar was the fate of the plaintiff before the first appellate court. The Hon'ble High Court held that the approach by the trial court and the first appellate court was erroneous. The Hon'ble High Court held that the executant was 106 years old at the time of execution of the deed and he was an illiterate and not in proper physical and mental state and, therefore, the deed of settlement was void. The Hon'ble High Court injuncted the defendants permanently from disturbing the possession of the plaintiffs in the suit property.
51. The Hon'ble Apex Court upheld the findings of the Hon'ble High Court that the trial court and the first appellate court totally ignored the relevant material on record. The Apex court held that the High Court rightly noticed that the courts below wrongly placed the onus to prove execution of the deed on the plaintiff, wherein there was challenge by the plaintiff to the validity of the deed.
52. This court is in consonance with the contention of the learned counsel for the respondent that when both the parties have adduced RCA DJ ADJ 130/2017 Page No. 25/27 evidence in support of their respective cases, the question of onus loses much of its weight and importance and in such a case the evidence is appreciated on the basis of probabilities and balance of the case of the parties - See Kalwa Devadattam v. Union of India15
53. In the case at hand, the releasor and the releasee/beneficiary were full blood brothers from the averments made in the plaint, written statement and from the trial court record it is observed that it is not the case of the defendants that either the releasor, Nand Lal and Chander Ram were of advance age, physically and mentally unfit to sign and execute the release deed in favour of their full blood brother Gopal Vaid. It is observed that no case for confidence been reposed by Nand Lal and Chander Ram in their brother Gopal Vaisd has been set up by the defendants. It is also observed that the defendants had never pleaded before the trial court that it was a case of lack of good faith and active confidence. Above all, it is also the case of the appellants/defendants that a separate suit challenging the release deed dated 07.03.1965 is already pending adjudication before the court of Ld. Addl. District Judge-5, South West District, Dwarka Courts, Delhi. The dictum in law is as old as the hills, one who avers must prove. Above all, no party can be permitted to set up a case beyond pleadings.
Decision
54. In view of the above discussions, this court finds no merit in the appeal and the same is dismissed. The impugned judgment passed by the trial court is upheld as the same merits no interference by this court. Parties to bear their own costs.
55. Consequentially all pending application(s), if any, stand dismissed as infructuous, and the order dated 02.02.2019 passed by this court staying AIR 1964 SC 880 15 RCA DJ ADJ 130/2017 Page No. 26/27 the effect and operation of the impugned judgment and decree and the execution proceedings stand vacated. The respondents are at liberty to proceed with the execution proceedings in accordance with law.
56. Decree sheet be drawn accordingly. Let trial court record be returned along with certified copy of this judgment as per Order XLI, Rule 37, CPC. File be consigned to record room only after due compliance and necessary action, as per Rules.
HARGURVARIND Digitally signed by
HARGURVARINDER SINGH JAGGI
ER SINGH JAGGI Date: 2021.01.30 19:12:47 +05'30'
Pronounced in the open Court (Hargurvarinder Singh Jaggi)
on January 30, 2021 Addl. District Judge-02
South West District
Dwarka Courts Complex, Delhi
RCA DJ ADJ 130/2017
Page No. 27/27