Delhi District Court
Rohtash Singh vs . Avadh Bihari. on 1 December, 2014
IN THE COURT OF SH. PRASHANT KUMAR,
ADJ04 (NW), ROHINI DISTRICT COURTS, DELHI.
RCA No. 73/14
Rohtash Singh Vs. Avadh Bihari.
Sh. Rohtash Singh,
S/o Sh. Hari Singh,
R/o H. No. 372, Village Pooth Kalan,
Delhi. .............Appellant
Versus
Sh. Avadh Behari Verma,
S/o Sh. Ganesh Pd. Verma,
R/o H. No. B1/4,
Kalyanpuri, Delhi. .............Respondent
Date of institution of appeal : 21.08.2014
Date of hearing final arguments : 01.12.2014
Date of announcing the order : 01.12.2014
O R D E R
1. By this order, I shall decide one appeal filed against the impugned judgment and decree dated 22.07.2014 passed by Ms. Shivali Sharma, Ld. Civil Judge (Central), Tis Hazari Courts, Delhi vide which the suit has been dismissed.
2. The facts narrated by the appellant in brief are as under:
Khem Chand, Deep Chand, Hukum Chand, Om Prakash, Jagdish and Kanwal was the joint owner of the plot bearing no. 53, measuring 366 sq. yards out of khasra no. 66/9, New Krishan Vihar, Village Pooth Kalan, Delhi (hereinafter referred to as suit property) RCA No. 73/14 Page No. 1/8 Rohtash Singh Vs. Avadh Bihari.
and it was on 21.02.1974, all the joint owners had executed GPA in favour of Khem Chand duly registered with sub registrar for sale of joint property including the suit property. Khem Chand being the GPA of all the joint owners sold the suit property in question to Balbir Singh S/o Sh. Shradha Singh for consideration of Rs. 2000/ vide sale deed dated 29.06.1974 duly registered. Thereafter, on 20.01.1997, Balbir Singh sold the property to the appellant and Late Sh. Baljeet Singh after converting the property into two plots, one sold to the appellant measuring 240 sq. yards bearing no. 53 and another sold to Late Baljeet Singh measuring 126 sq. yards bearing no. 53A vide GPA, agreement to sell etc. and registered Will for valid consideration. The portion sold to the appellant measuring 240 sq. yards was consisting of one room built therein with one tenant namely Shanti Devi at a monthly rent of Rs. 100/. On 12.09.1997, defendant alongwith his associates tried to raise construction and to take possession of the suit property in question forcibly but they were prevented and complaint was made to PS Sultan Puri. Defendant extended threats to the plaintiff to take forcible possession of the suit property in question. The present suit was filed by appellant and Baljeet Singh. Defendant filed his written statement and took objection of locus standi and stated that documents relied upon by the plaintiff are forged, false and fictitious. Defendant also disputed the right of the plaintiff over the suit property in question alleging that defendant had purchased the property on 21.09.1981 from Deep RCA No. 73/14 Page No. 2/8 Rohtash Singh Vs. Avadh Bihari.
Chand and Om Prakash through GPA, agreement to sell and receipt. The revenue record shows the ownership of khasra no. 66/9 in the name of the earlier owner prior to Balbir Singh. It was further stated by the defendant that documents filed by the plaintiff shows that the land was falling in khasra no. 66/4 whereas suit property in question is situated in khasra no. 66/9. Defendant filed some false, forged and fabricated documents. The receipt dated 21.09.1981 which is registered with Sub Registrar does not mention anything about the suit property in question. Other documents are unregistered. The specification of the suit property in question given in those documents also does not tally with that of the suit property in question. Defendant had taken the benefit of typographical error on the original sale deed dated 29.06.1974 whereas the copy of sale deed with SubRegistrar concerned has correct khasra no. 66/9. the certified copy of the sale deed is already on record as Ex. PW6/1 which has mentioned the khasra no. as 66/9. It is further stated that Baljeet Singh, plaintiff no. 2 withdraw his suit on 19.09.2000 and the suit was contested only in between appellant and respondent.
3. The grounds of the appeal are as under:
(i) Ld. Trial court has committed a grave error in holding that documents of ownership relied upon by the plaintiff are in respect of khasra no. 66/4. Hence, he can not be declared as owner of the suit property in question. Ld. Trial court did not consider the evidence available on record which clearly proves that mentioning of khasra no. RCA No. 73/14 Page No. 3/8
Rohtash Singh Vs. Avadh Bihari.
66/4 is only typographical error. Hence, it can not come in the way of title of plaintiff qua the suit property in question measuring 240 sq. yards as the plaintiff derived title through the owners of khasra no. 66/9 and is in possession of the suit property in question.
(ii) Ld. Trial court did not consider certain facts. DW4, Patwari from SDM Court proved on record that khasra no. 66/4/1 and 66/4/2 was in the bhumidari of another land holder and not belonging to the persons from whom the plaintiff derived his title in the suit property in question. DW4 further proved on record that khasra no. 66/9 belongs to Khem Chand, Hukum Chand, Deep Chand, Om Prakash, Jagdish and Kanwal and they were the persons through whom the plaintiff derived his title in the suit property in question. Ld. Trial court also failed to consider the fact that registered GPA dated 21.02.1974 has been proved on record which includes khasra no. 66/9. Ld. Trial court has also failed to consider a document Ex. PW6/1 which is the certified copy of the sale deed dated 29.06.1974 which reflects the khasra no. of the suit property in question as 66/9. Ld. Trial court has also failed to consider the fact that plaintiff purchased the said plot on the basis of registered sale deed dated 29.06.1974. As in the original sale deed dated 29.06.1974, there was typographical error in khasra number, the same khasra number 66/4 was mentioned in the document dated 20.01.1997. It is, therefore, a typographical error in the documents.
(iii) Ld. Trial court has wrongly observed that appellant failed to prove RCA No. 73/14 Page No. 4/8 Rohtash Singh Vs. Avadh Bihari.
his possession of the suit property in question and did not consider the possession of Shanti Devi by disregarding the rent agreement Ex.PW5/1. PW5 Shanti Devi had stated that she is a tenant under the landlordship of plaintiff and has nothing to do with the defendant. Ld. Trial court failed to consider the order passed by the predecessor dated 26.11.2007.
(iv) Ld. Trial court has not considered the evidence led by the plaintiff appropriately and only the facts alleged by the defendant are considered.
4. In his reply, the respondent has opposed the appeal filed by the appellant/ plaintiff alleging that no ground for filing appeal is made by the appellant. Ld. Trial court has rightly dismissed the suit of the plaintiff observing that he has miserably failed to prove his case. It is stated by the respondent that plaintiff failed to establish his right and ownership over the suit property in question falling in khasra no. 66/9.
5. Arguments heard at length from both the sides. Record is also perused thoroughly as well.
6. The impugned judgment dated 22.07.2014 is thoroughly perused. Coming to the documents filed and relied upon by the plaintiff before the Ld. Trial court, it is reflected that they have been filed in original and the khasra no. mentioned therein is 66/4 and not 66/9. appellant/ plaintiff has been alleging throughout that it is a mere typographical error and the plaintiff had purchased the property falling in khasra no. 66/9 from Balbir Singh who purchased the same from RCA No. 73/14 Page No. 5/8 Rohtash Singh Vs. Avadh Bihari.
the erstwhile owner in the year 1974. From the perusal of the title deeds in favour of Balbir Singh pertaining to the year 1974, it is reflected that khasra no. is mentioned as 66/4 and not as 66/9. Appellant/ plaintiff was not the party to the said documents. It is only Balbir Singh or the owner prior to him could have say anything in this regard that the property falling in khasra no. 66/9 was sold accordingly. None of the previous owners have been sought to be examined by the plaintiff, however, Balbir Singh was examined accordingly before Ld. Trial court. From the entire examination in chief of Balbir Singh, nowhere he has stated that it was mere typographical error. Examination in chief of plaintiff is also perused which also does not reflect any averment that it was a mere typographical error in mentioning the khasra number correctly. The first burden which is to be discharged as per law is upon the person who alleges a fact. Plaintiff has been alleging that it was due to typographical error that the khasra number was wrongly mentioned as 66/4. What prevented the plaintiff or Balbir Singh from alleging any such fact that it was a typographical error has not been explained by the plaintiff/ appellant either before the Ld. Trial court or before the Appellate court. The same mistake, if any, is reflected in the rent deed pertaining to the Shanti Devi. This fact of alleged typographical error has taken place in many documents shown by the plaintiff. The plaintiff has not taken any steps to get the said typographical error corrected during the entire trial, nor he asked Balbir Singh to take steps accordingly for RCA No. 73/14 Page No. 6/8 Rohtash Singh Vs. Avadh Bihari.
which nothing has been stated on behalf of the appellant. It is for the first time that one application was moved on behalf of the appellant before the Appellate court to place on record the rectification deed pertaining to the suit property in question and appellant sought one opportunity to lead additional evidence. Such an futile attempt on the part of appellant was taken for seeking an opportunity, which if worked, as if would do wonder for the appellant affecting the merits of the case. The appellant again failed to show as to how rectification deed could have been filed in between Balbir Singh and appellant without getting the same corrected in the previous chain of documents as well. No explanation has been furnished on behalf of the appellant in this regard. Hence, this application has been dismissed accordingly. Similar facts in brief has been observed by Ld. Trial court that the document placed on record by the appellant/ plaintiff are pertaining to the property falling in khasra no. 66/4 whereas the relief has been claimed alongwith the declaration pertaining to the property falling in khasra no. 66/9. I am of the considered opinion that Ld. Trial court has rightly come to the conclusion that plaintiff failed to prove his legal right over the suit property in question. The relief of declaration sought by the appellant/ plaintiff, therefore, has rightly been declined by Ld. Trial court.
Appellant/ plaintiff has relied upon the following judgments.
(i) Virendra Kumar Markande Vs. Tarseem Chand Jain, High Court of Delhi, date of decision 25.10.2013.
RCA No. 73/14 Page No. 7/8 Rohtash Singh Vs. Avadh Bihari.
(ii) Kesho Singh & Ors, Vs. Roopan Singh & Ors., Allahbad High Court, date of decision 24.11.1926.
Both the above mentioned judgments are perused. The facts and circumstance of the present case are entirely different. Hence, they are not applicable in the present facts and circumstances.
It is pertinent to mention here that order dated 26.11.2007 passed by Ld. Trial court was an interim order which was during the pendency of the suit only. It is needless to say that all the interim order merges in the final order which disposes off the suit itself. Such interim orders also do not lay their impact upon the merits of the main case. Therefore, the court has passed the impugned judgment dated 22.07.2014 after considering the evidence led by the parties at length. In the light of the above mentioned observations, I am of the considered opinion that Ld. Trial court has rightly come to the conclusion that plaintiff has failed to establish his case against the defendant. Therefore, the appeal filed by the appellant/ plaintiff is without any merits. Hence, it is dismissed.
7. Case file be consigned to record room after completion of all necessary formality.
Announced & dictated in the (Prashant Kumar)
open court today i.e. on 01.12.2014 ADJ04(NW)/Rohini Courts
Delhi/01.12.2014.
RCA No. 73/14 Page No. 8/8
Rohtash Singh Vs. Avadh Bihari.