Delhi District Court
Shri Surender Kumar vs Shri Dalbir Singh on 7 February, 2022
Old Appeal
IN THE COURT OF AJAY GOEL: ADDITIONAL DISTRICT JUDGE-04
SOUTH WEST: NEW DELHI
RCA- 54766/16/12
Shri Surender Kumar,
s/o Lal Harkishan Dass,
r/o Ghat Mandi, Bahadurgarh,
Distt. Jhajjar, Haryana.
.............Appellant
VERSUS
1. Shri Dalbir Singh
s/o Shri Ram Kumar
r/o Village & Post Office
Dichaon Kalan,
New Delhi-110043.
2. Shri Mohd. Ansar
s/o Sh. Abdul Rashid
Plot no. 1, at Khasra No. 26/23
Haivatpura, Abadi known as Rajiv Vihar,
New Delhi.
..........Respondents
Date of institution- 13.9.2012
Date of assignment to this court- 23.3.2020
Date of arguments- 13.01.2022
Date of decision- 7.02.2022
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JUDGMENT
1. Vide this judgment I shall dispose off present appeal filed by the appellant against the respondents challenging the judgment of Ld. Trial Court dated 22.11.2011. Brief facts of the case are that appellant herein had filed a counter claim in suit title as Dalbir Singh Vs. Surender Kumar which was registered separately and was dismissed by Ld. Trial Court vide impugned judgment dated 22.11.2011 against which instant appeal under disposal was preferred by the appellant.
2. An application u/o 41 Rule 3-A r/w Section 151 CPC and Section 5 of Limitation Act was allowed vide order dated 16.2.2013 as the appeal was not within limitation.
3. The case of appellant/plaintiff as narrated in the plaint is that plaintiff is owner of plot no. 1, area measuring 375 sq. yds. Khasra no. 26/23, Haivatpura abadi known as Rajiv Vihar, New Delhi shown red in site plan(herein after is referred as suit property) which was purchased by him from one Sh. Ashok Kumar for a sale consideration of Rs.88,000/- by way of GPA, agreement to sell, affidavit and receipt dated 18.10.96 in favour of plaintiff. Possession of the 2/31 suit property was also handed over to the plaintiff on the same day and thereafter plaintiff constructed a boundary wall on the suit property. However, owing to his illness the plaintiff could not look after the property and in the night of 26.3.2009 when plaintiff visited the suit property he noticed that defendant no. 2 was running a scrap shop on it. Plaintiff made inquiries upon which defendant no. 2 informed him that suit property was let out to defendant no. 2 by defendant no. 1 at a monthly rent of Rs.3500/- and defendant no. 1 had claimed himself to be the owner of the suit property. Thereafter plaintiff contacted defendant no. 1 and requested him to desist from illegal act and to vacate the suit property but defendant no. 1 advanced threats to plaintiff. Plaintiff accordingly filed complaints before the police. Subsequently the plaintiff contacted the erstwhile owner Sh. Ashok Kumar who visited the suit property with the plaintiff and requested defendant no. 1 to vacate the suit property, however defendant no. 1 again advanced threats to the plaintiff. It is stated that defendant no. 1 also filed the suit against the plaintiff for permanent injunction on the basis of false and forged documents. Accordingly present counter claim was filed by the plaintiff against the defendants. The main suit was disposed off by the Ld. Trial Court on 18.7.2009.
4. Written statement was filed on behalf of defendant no. 1 wherein it is stated 3/31 that the plaintiff is neither owner nor occupant of the suit property and has no locus standi to file the suit. It is also stated that the land comprised in khasra no. 26/23 in the revenue estate of Haibatpura known as "Ekta Vihar", Rajiv Vihar, Najafgarh,New Delhi was in the name of Sh. Sher Singh who sold the land to different persons after carving out small plot therefrom and one plot which constitutes the suit property was sold to Mr. Chander Bhan who sold the same to defendant no. 1. It is also submitted that purchase of another plot bearing no 4 by the father of defendant no. 1 from Mr. Sher Singh in the name of khasra number shows that the original owner was Mr. Sher Singh. It is stated that that it is the defendant no. 1 who is the owner of the suit property having purchased it from previous owner Mr. Chander Bhan on 3.5.1993 and had raised construction on the same in July-August,2007. It is also stated that electricity connection was also obtained in the property in November,2007 and defendant no. 1 is in possession of the suit property. Rest of the averments in the plaint were denied and it is prayed that suit of the plaintiff be dismissed.
5. Defendant no. 2 appeared before the court and his statement was recorded u/o 10 CPC on 1.8.2009 wherein he stated that he is in possession of the suit property and that he is paying rent to defendant no. 1 for his occupation. He stated that he has been occupying the property since last fourteen or fifteen 4/31 months and that as per his knowledge the defendant no. 1 is the owner of the property. No written statement was filed on his behalf.
6. Replication to the written statement of defendant no. 1 was filed in which contents of the plaint were reiterated and those of the written statement were denied.
7. On the pleading of the parties following issues were framed on 01.08.2009-
1) Whether the suit is owner of the disputed plot?OPP
2) Whether the plaintiff is entitled for the possession of the suit property? OPP
3) Whether the plaintiff is entitled for recovery of damages @ Rs.15,000/- per month?OPP
4) Relief.
8. Plaintiff in support of his case examined himself as PW-1, Sh. Ashok Kumar as PW-2, Sh. Om Prakash as PW-3.
PW-1 reiterated his case as set out in the plaint. He relied upon Will, agreement to sell, general power of attorney, affidavit and receipt dated 18.10.96 Ex. PW-1/2(Colly), medical records of plaintiff Ex. PW-1/3(colly), 5/31 complaint u/s 54 Cr.PC sent to SHO, P.S. Najafgarh, Delhi dated 27.3.2009 Ex. PW-1/4, complaint u/s 154 Cr.PC sent to ACP P.S. Najafgarh, Delhi dated 27.3.2009 Ex. PW-1/5, complaint u/s 154 Cr.PC sent to DCP, South West, Dwarka dated 27.3.2009 Ex. PW-1/6.
PW-2 Ashok Kumar stated that he was the owner of the suit property and had sold the same to plaintiff for sale consideration of Rs.88,000/- vide registered GPA, agreement to sell and receipt in this regard and had handed over vacant possession of the suit property to the plaintiff on 18.10.1996. He also stated that he had purchased the suit property from Mr. Sunder Lal, Attorney of Mr. Om Pal Singh on 24.3.1988.
PW-3 Om Prakash who was neighbour of plaintiff stated that plaintiff is the owner of the suit property and in the year 2008 th e defendant no. 2 had occupied it. He supported the case of plaintiff.
9. In defence defendant no. 1 examined himself as DW-2 and besides him he examined DW-1Shiv Kumar, DW-3 HC Prahalad Singh, DW-4 Mahipal and DW-5 Sh. Saurabh Saxena.
DW-1 is the brother and attorney of defendant no. 1 who stated that defendant no. 1 had executed a general power of attorney dated 26.2.2008 in his favour and he has been looking after the plot. He reiterated the case of 6/31 defendant no. 1 as set out in written statement and relied upon GPA dated 26.2.2008 Ex. DW-1/1, copy of NCR dated 9.1.2009 Ex. DW-1/2, copy of application dated 16.5.2009 having endorsement of PS Bindapur Ex. DW-1/3, electricity bill for month of December,2007 Ex. DW-1/4, electricity bill of month of April,2009 Ex. DW-1/5, receipt of property tax of MCD vide no. 579000 Ex. DW-1/6, receipt of challan of MCD pertaining to the month of December,2008 Ex DW-1/7, copy of Nakal khatoni of khasra no. 26/23 of village Haibatpura issued by concerned Patwari Ex. DW-1/8, GPA dated 5.12.1983 Ex. DW-1/9.
Defendant no. 1 examined himself as DW-2 and deposed in similar lines as that of DW-1.
DW-3 HC Prahalad Singh produced summoned record of PS Bindapur i.e. complaint regarding loss of documents and an application and affidavit regarding correct khasra number of the plots and identified the said documents as DW-1/2, Ex.DW-3/1 and DW-1/3.
DW-4 Sh. Mahipal stated that his later father Sh. Chander Bhan was the owner of the suit property and had sold it to defendant no. 1 in the year 1993 for a sum of Rs.40,000/- and had executed a GPA, agreement to sell, affidavit and receipt in favour of defendant no. 1 and had handed over vacant physical possession of the suit property to the defendant no. 1. He stated that his father 7/31 has expired.
DW-5 Sh. Saurabh Saxena, JE BSES produced record relating to electricity supply provided at suit property. He stated that on the basis of documents filed by Mr. Dalbir Singh electricity connection was provided in his name at the suit property. He also deposed that at the time of filing of documents, the office of BSES had compared the photocopies with original documents and now connection stands transferred in favour of brother of defendant no. 1.
10. After hearing arguments of both the parties Ld. Trial Court dismissed the suit of the plaintiff vide impugned order against which present appeal has been preferred by the plaintiff/appellant. I have heard counsels for both the parties as well as perused the record. My issue-wise findings are as follows-
11. Issue no.1 & 2 Whether the suit is owner of the disputed plot?OPP & Whether the plaintiff is entitled for the possession of the suit property? OPP - Both these issues are taken up together being interconnected. 11.1 It is pertinent to mention here that plaintiff/appellant has rightly contended that his advocate did not appear before the Ld. Trial Court and 8/31 arguments were not addressed on his behalf and further the case was disposed off by Ld. Trial Court vide impugned judgment against him without hearing. He has further argued that either the suit should have been dismissed in default or the suit should have been disposed off u/o 17 Rule 3 CPC by mentioning so but it has not been done by the Ld. Trial Court and he is for the first time addressing his arguments. As per the claim of plaintiff he had purchased the suit property from Sh. Ashok Kumar who purchased the same from Sunder Lal and Sunder Lal purchased the same from Ompal & Bhudhu and initially Ompal and Bhudhu purchased it from the erstwhile owner Sh. Sher Singh. There is no dispute with respect to the fact that Sh. Sher Singh was erstwhile owner of the suit property and the only dispute in the matter is whether the plaintiff side is correct in claiming to have purchased the suit property from different set of subsequent owners i.e. Ompal & Bhuddu, Sunder Lal and Ashok Kumar whereas the defendant claims to have purchased the suit property from one Chander Bhan who purchased it from Sher Singh as alleged. Even otherwise, khatoni Ex. DW- 3/1 clearly shows that Sher Singh was owner of the suit land. Defendant also produced one document Ex. DW-1/9 which is the GPA executed by Sher Singh in favour of father of defendant namely Ram Kumar with respect to some other plot in same khasra no. 26/23 village Haibatpura. This document also shows that Sher Singh was the owner of the khasra no. 26/23. There is admission in 9/31 pleadings and evidence on the part of defendant himself that Sher Singh was the erstwhile owner and this fact also stands established on record. Reliance is placed upon AIR 1960 SC page 100 and Section 58 of the Indian Evidence Act, which clearly states that "admission is the best piece of evidence". To the same effect is Nagindas Ramdas V. Dalpatran Iccharam alias Brijram and Ors(1974) 1SCC 242 and Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar vs. Chandran and Ors (2017) 3 SCC 702. Ld. Trial Court vide impugned judgment discarded the claim of the plaintiff and aggrieved with the same plaintiff approached this court. The first main reason of discarding the claim of plaintiff by the Ld. Trial Court was that the plaintiff failed to establish the chain of transactions by which Sh. Ashok Kumar acquired the ownership rights. In the present appeal the plaintiff/appellant has moved an application u/o 41 Rule 27 CPC for leading additional evidence and placing on record sale transaction documents executed by Sher Singh in favour of Ompal & Bhuddu which application has already been allowed vide separate order passed today. It is also argued by the plaintiff that other chain of documents were Ex. PW-1/2 collectively which Ld. Trial Court failed to appreciate. It is stated that sale transaction documents in respect of Sunder Lal in favour of Ashok Kumar and documents of Ompal & Bhudhu in favour of Sunder Lal were also part of Ex. PW-1/2(colly) which Ld. Trial Court overlooked. Perusal 10/31 of the trial court file shows that contention of the appellant/plaintiff is correct since documents alleged to be executed by Sunder Lal in favour of Ashok Kumar and documents of Ompal &Bhudhu executed in favaour of Sunder Lal are available on trial court's file and even bear the court filing stamp of 1.8.2009 whereas the impugned judgment was passed by Ld. Trial Court on 22.11.2011. Hence it is apparent that Ld. Trial Court appreciated only sale transaction documents executed by Ashok Kumar in favour of plaintiff and overlooked the other chain of documents. Be that as it may. This court vide separate order passed today has already allowed the application u/o 41 Rule 27 CPC and the operating part is as under-
"It is pertinent to mention here that on 22.12.2021 this court has ordered for summoning of the file titled as State Vs. Dalbir FIR no. 14/2010 P.S. Najafgarh pending in the court of Ld. CMM for 26.3.2022 wherein the original documents showing the chain of ownership of plaintiff were lying as they were taken into possession by IO of that case. Now the position is that the documents sought to be produced were in fact lying in the criminal case file in the court of Ld. CMM alongwith the other chain of documents and this file could have been called in evidence before the Ld. Trial Court by the court itself or by the plaintiff or by the defendant for cross examination but none of them have done so. Moreover, while 11/31 moving the present application the plaintiff/appellant had no knowledge that these documents are lying in that file and had moved the present application alongwith copy of the documents instead of original as he had even no idea that these documents were taken into possession by IO during the investigation of the case and this fact has come to the notice of the court when this court during the course of arguments ordered vide order dated 22.12.2021 to summon the criminal file. Nevertheless, after going through all the controversy in this matter all the grounds mentioned in Order 41 Rule 27 exists as the Ld. Trial Court has not admitted the evidence which ought to have been admitted as mentioned henceforth in this order as well as in the judgment deciding the appeal. Secondly, the appellant/plaintiff has fulfilled the criteria mentioned in Sub Rule 1(aa) of Order 41 Rule 27 CPC since he has established that the documents were lying in proper custody in criminal court but he could not produce them even after exercise of due diligence and thirdly after going through the record it is made out that evidence/document is required to enable judgment determining the rights of the parties. Even otherwise, it is well settled law that all the controversies should be settled at once and technicalities should not come in way of dispensation of justice and other party can be compensated with costs. Reliance is also placed upon 12/31 2009(3) Civil Court Cases 787(SC) Northern Eastern Railway Administration Gorakpur Vs Bhagwan Das(dead) wherein it was held that " Appellate court has the power to allow additional evidence not only if it requires such evidence 'to enable it to pronounce judgment' but also for 'any other substantial cause'." To the same effect is judgment of Hon'ble Supreme Court in Jagdish Prasad Patel(D) through LRs Vs. Shiv Nath decided on 9.4.2019, civil appeal no. 2176/2007. Accordingly, the documents alleged to be executed by Sher Singh in favour of Ompal & Bhudhu are taken on record. Now, the question arises whether the case is required to be remanded back or documents can be taken into consideration as deemed proved in the present appeal itself. This question is decided herein itself while deciding the present application. As far as leading evidence to prove the same is concerned it is submitted by counsel for plaintiff that they cannot produce any witness to prove the same on record since these documents pertain the year 1983 and now whether the persons involved are alive or not cannot be made out. The counsel for plaintiff has relied upon Section 90 of Indian Evidence Act wherein it is mentioned that documents which are 30 years old and are emanating from proper custody can be considered as deemed to be proved and the court may presume that the signature and every other part 13/31 of such document which purports to be in handwriting of any other person is in that person's handwriting and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. The present Section is incorporated in the Evidence Act which does away with basic rule of proof of private documents. In the present case, all the documents relied upon by the plaintiff/appellant are 30 years old except the documents executed by Ashok Kumar in favour of appellant. Ashok Kumar himself appeared as PW-2 and has proved execution of his chain of documents dated 18.10.1996 in favour of appellant and even otherwise GPA executed by him is a registered document. However, it is to be seen that discretion of the court to accept the presumption should not be exercised arbitrary and should be with reasons. The counsel has relied upon judgment of Hon'ble Supreme Court titled Jagdish Prasad Patel (D) Thr. Lrs. Vs. Shivnath decided on 9.4.2019, civil appeal no. 2176 of 2007 wherein Hon'ble Supreme had accepted one document Ex.D-20 in that case in para no. 19 by mentioning that Section 90 of Evidence Act enables the court to draw the presumption if a document is 30 years old and court may presume regarding the authenticity of that document by mentioning the document as genuine.
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5. Further reliance is placed upon judgment of Hon'ble Rajasthan High Court titled as Hazarilal and Anr. Vs. Shyamlal and Ors. dated 14.11.2006.It clinches the controversy of the present case whereby the Hon'ble High Court after taking into consideration different judgments pronounced by different High Courts had observed that what are the rights of the parties regarding the rebuttal evidence. The Hon'ble Division Bench of Hon'ble High Court in para no. 13 by relying upon judgment of Division Bench of Orissa High Court in Ramakrushna Mohapatra vs. Gangadhar Mohapatra AIR1958 Orissa page 26 had endorsed the view that " the principle underlying Section is that if a private document thirty years old or more, is produced from proper custody and is, on its face free from suspicion, the Court may presume that it has been signed or written by the person whose signature it bears or in whose handwriting it purports to be and that it has been fully attested and executed, if it purports so to be. In other words, documents thirty years old prove themselves. The age of a document, its unsuspicious character, the production from proper custody and other circumstances are the foundation for the presumption as enunciated in above section. This rule, it is now well settled, was founded on necessity and convenience. It is extremely difficult and sometimes impossible to prove 15/31 the handwriting or signature or execution of ancient documents after the lapse of many years. It is therefore presumed that all persons acquainted with execution of documents, if any, are dead and proof of those facts are dispensed with. Thus, presumption related to the execution of the documents, that is, signature, attestation etc., in other words its genuiness, but not to the truth of its contents."
In para no. 17, 18 and 21 of the judgment supra it was further held that-
a) Para no. 17-"presumption is to be drawn by the Court which is evident from the words "Court may presume". The party which has produced the document may simply point out to the Court that the document is thirty years old and has been produced from proper custody and make a request that the presumption as to signature or handwriting etc. may be drawn. It is not necessary to make a formal application. Request may be made in course of oral submissions usually at the time of final arguments. In other words, the party producing document may simply claim that a presumption under Section 90 does arise and if the Court is satisfied that the document is thirty years old or purports to be thirty year old and has been produced from proper custody, it may presume that the signature or handwriting is of the person who is shown 16/31 to have signed or written the document or that he executed or attested it."
b) Para no. 18 "The question as to whether opportunity to lead rebuttal evidence should be given to the other party or rebut the presumption arising under Section 90 has to be considered in the above perspective. No doubt, as mentioned above, the presumption is rebuttable unlike facts which are conclusive proof of another fact but it does not mean that where presumption is claimed at the stage of final arguments, the Court will revert to the stage of evidence and give opportunity to the other party to lead evidence in rebuttal."
c) Para no. 21 " We are inclined to think that the Court may draw such presumption given where the party has not claimed it. In a particular case the lawyer representing the party may due to oversight or ignorance omit to claim presumption. The Court in such a case is not estopped from drawing presumption in the interest of justice. Indeed, where is not claimed/drawn at the trial stage, it is open to the party or his lawyer to claim such presumption even at the appellate stage. That being so, we do not think, the other party can claim any opportunity as of right to lead evidence to rebut the presumption under Section 90 or other similar sections of the Evidence Act."
6. It is pertinent to mention here that in the present case the 17/31 defendant/respondent had not even bothered to challenge the documents for number of years even though these documents had come to his knowledge and has created a cloud over his alleged title. He has remained mum and now law of limitation does not permit him to challenge the same. He himself has not proved the title as he has not produced any document executed in his favour which is also mentioned by Ld. Trial Court. Similar view has been expressed in one judgment Dakshina Murthy Vs. Dhanabal decided on 26.2.2021 by Hon'ble High Court of Madras. The counsel for plaintiff/appellant has further relied upon judgment of Hon'ble Supreme Court Iqbal Basith Vs. N. Subbalakshi dated 14.12.2020 wherein Hon'ble Supreme Court had discussed about the effect of Section 90 Indian Evidence and observed that " This Court in Lakhi Baruah vs Padma Kanta Kalita(1996) 8 SCC 357 has dealt with regard to admissibility in evidence of thirty years old documents produced from proper custody" and further observed that "Section 90 of the Evidence Act, 1872 is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signatures or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has 18/31 been incorporated in Evidence Act, 1872 which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under section 90 should not be exercised arbitrarily and not being informed by reasons."
Reliance is also placed upon the judgment 2011(1CC)832 Madrass titled Rangaswami Vs. T.V. Krishnan in which Hon'ble High Court held that "proper custody means custody of an individual connected with deed and its possession does not excite any fraud or suspicion".
11.2 Now after placing on record the sale transaction document alleged to be executed by Sher Singh in favour of Ompal & Bhudhu the plaintiff has completed the chain of sale transactions of suit property as claimed by him and now what is to be seen is that whether these documents vide which sale of suit property has been purported to have taken place can be considered or not. Ld. Trial Court had in detail had discussed each and every document executed between Sh. Ashok Kumar and plaintiff i.e. GPA, affidavit, Will and receipt and discarded them separately and placed reliance upon judgment of Hon'ble 19/31 Supreme Court in case of Suraj Lamp and Industries. On the other hand respondent has argued that these documents produced by plaintiff cannot be considered. The plaintiff has rebutted the same by saying that defendant himself has relied upon similar type of document Ex. DW-1/9 and it does not lie in his mouth that his document be considered and that of the plaintiff be not considered.
11.3 There is no dispute regarding the law laid down by the judgment supra referred by Ld. Trial Court but the same is not applicable to the facts of the present case since the said judgment was passed in the year 2009 and the same has prospective effect as held by Hon'ble Supreme Court in judgment tilted as Maya Devi Vs. Lalta Prasad(dt. 19.2.2014) and by division bench of Hon'ble High Court of Delhi in Urmila Devi Vs Laxman Singh RFA(OS) 85/2014 dated 20.3.2015 whereas sale transactions by Sher Singh, Ompal & Budhu, Sunder Lal, Ashish Kumar and lastly plaintiff related to years 1983, 1986, 24.3.1988, 18.10.1996. Hence, the present case cannot be impacted or affected by the Suraj Lamp dicta.
11.4 Ld. Trial Court opined that affidavit, Will and receipt cannot be taken into consideration but has lost sight of the fact that the said documents 20/31 can be used for collateral purposes as well as can be read against the persons who has no better titled than the plaintiff. In para no. 32 the claim of the plaintiff was denied by the Ld. Trial Court on the basis that plaintiff has failed to establish the chain of transactions by which Mr. Ashok Kumar acquired the ownership rights which defect stands cured when the application u/o 41 Rule 27 CPC has been allowed and the observations of Ld. Trial Court losses its significance whereby the court has mentioned that PW-1 had admitted during cross examination that he had not placed any documents on record which shows that Mr. Sher Singh had sold the suit property to some other persons in the chain of documents. In similar fashion observation of Ld. Trial Court in para no. 33 has also been answered.
11.5 Further, the documents i.e GPA, affidavit, Will and receipt cannot be read separately and their cumulative effect is required to be seen. Reliance is placed upon S. Chattanatha Karayalar v The Central Bank of India Ltd. And Ors AIR 1965 SC 1986 wherein the Hon'ble Supreme Court stated that "The principle is well established that if the transaction is contained in more than one document between the same parties they must be read and interpreted together and they have the same legal effect for all purposes as if they are one document. Hence, in view of the above GPA, Will, Affidavit, receipt all are to 21/31 be read together in case of every transaction that took place in the present case. Further, the sale transactions by different persons as alleged by the plaintiff in the present case have been done through GPA, Will, affidavit, receipt which are traditional form of documents and a person having traditional documents regarding any immovable property can enjoy and exercise every right over the property and even the actual owner cannot create any disturbance due to bar created by Section 202 of the Contract Act. Reliance is placed upon 193(2012) Delhi Law Times 168 Delhi High Court Hardip Kaur Vs Kailash& Anr wherein Hon'ble Mr. Justice J.R. Midda held that "As per Section 202 of Contract Act Power of attorney coupled with interest is irrevocable and cannot be revoked/terminated even upon death of principal and purchaser may not be classical owner as would be an owner under registered sale deed but surely he would have better rights/entitlement of possession than the person who is in actual physical possession.". So, it is clear that in the present case each set of buyer and purchaser in the chain of ownership claimed by the plaintiff, by executing the GPA, affidavit, Will and receipt had an interest in the suit property and Ld. Trial Court could not have out rightly rejected these traditional documents since each of these alleged owners definitely had advantage over the others. If the defendant or any other person had brought documents to show better title or some registered documents then the question would have been 22/31 different but herein the plaintiff has brought documents to show prima facie his title against the defendant who has not proved his title at all. So, the plaintiff is on better footing against the defendant. Even these chain of documents form part of record of FIR no. 14/2010 titled as State Vs. Dalbir pending in the court of CMM, Dwarka which record was called by this court on 4.1.2022. Further, defendant himself has placed on record one GPA Ex. DW-1/9 executed by Sher Singh in favour of father of defendant and it is point of consideration that when defendant himself wants his document Ex. DW-1/9 GPA is to be given consideration than how come the chain of ownership presented by plaintiff containing GPA, Will, affidavit, receipt etc. cannot be considered. Defendant cannot be allowed to blow hot and cold at the same time.
11.6 In the present case PW-1 clearly stated that he has purchased the suit property from Sh. Ashok Kumar and even asserted that he took possession of the suit property, he built a boundary wall over the suit property. The GPA dated 18.10.1996 executed by Sh. Ashok Kumar in favour of plaintiff is registered GPA. Mr. Ashok Kumar was also produced in witness box who categorically stated that he sold the suit property to plaintiff vide registered GPA, agreement to sell and receipt for consideration of Rs.88,000/-. He also stated that he handed over the vacant possession of the suit property to the 23/31 plaintiff on 18.10.1996. He further stated that he purchased the suit property from Mr. Sunder Lal attorney of Om Pal Singh on 24.3.1988. He even stated in cross examination that Mr. Bhudhu Ram and Mr. Om Pal could be the owner before Mr. Sunder Lal. By producing this witness plaintiff clearly proved his sale transaction and even established the chain. It has also not been explained by the defendant as to why he never approached any court of law for cancellation of these documents after the same came in his knowledge which shows that mentally and legally he had lost the battle and he also admits the chain of documents of plaintiff. Even the period of limitation to challenge the same has also expired. Hence, since now documents executed in respect of sale of suit property by each set of buyers and purchasers as alleged by the plaintiff is on record and has been duly supported by the testimony of plaintiff, hence the chain of ownership documents claimed by the plaintiff now stand proved on record. As far as case of defendant no. 1 is concerned. He has contended that he had purchased the suit property from one Chander Bhan who had purchased the same from Sher Singh. No title documents have been produced by the defendant no. 1 and it is averred that the said title documents were lost. First of all Ld. Trial Court has not considered the claim of defendant and defendant has also not challenged the said judgment of Ld. Trial Court. So now it has become resjudicata between the parties. Further it is point of consideration that as per 24/31 the police report lodged it is alleged that the said documents were lost in Bindapur at 7 p.m. on 9.1.2009 while in affidavit of defendant no. 1's brother dated 9.1.2009 it was alleged that the said documents were lost in Uttam Nagar which creates material contradiction in the stand of defendant and it is not understandable as to when the police report was lodged on 9.1.2009 at 7 p.m. then how could the said affidavit of dated 9.1.2009 was prepared in advance by the defendant's brother in advance. Further if documents were lost at Uttam Nagar then why the complaint was made to the police station Bindapur. It is also a point of consideration that son of Chander Bhan namely Mahipal has been produced as DW-4 by the defendant who supported the case of defendant but it is not understandable that if defendant had lost his documents then atleast son of Chander Bhan could have produced his set of copies. Rather he has not uttered a single word regarding the same. Hence, story from the defendant's side is definitely under the shadow of doubt and cannot be given a clean chit. Testimony of DW-3 is of no use because anyone can come and say that his documents have been lost and he has obtained the DD entry from police station but he be declared owner even in the absence of documents. No steps for proving the same by way of secondary evidence have been taken by the defendant and mere oral testimony to that effect is of no help to defendant. Moreover, case of defendant is not improved by producing DW-4 because when 25/31 the documents are not there it is not made out as to what he has tried to prove. Again his testimony is only oral and set/chain of documents was also required to be proved by defendant if he wanted to challenge the title of plaintiff. The argument addressed by him against the plaintiff is also applicable to him. DW-5 is also not helpful to the defendant because it is not made out as to how and when the defendant came into possession when he had no title and it seems that he had forcibly entered into the possession. Mere installation of electricity meter is not giving him any right, title or interest in the property and to protect his illegal possession. An application u/s 151 CPC has also been moved by the GPA/brother of defendant Sh. Shiv Kumar wherein he stated that defendant had assured him to have sale deed registered in his name after litigation is over and accordingly he spent Rs. 12 lakh on this litigtion but now the defendant has refused. He stated he has also transferred Rs.5,50,000/- in respect of suit plot to defendant and even rented out the suit property to Mohd. Answar. Interse dispute between the defendant and his own GPA Shiv Kumar is apparent and the same has definitely created a shadow of doubt on the case of defendant. Lacuna pointed out by Ld. Trial Court does not exists now. It is argued by Ld. Cl. for defendant/respondent that there are material contradiction in testimony of PW-1 and PW-2 which was also pointed out by Ld. Trial Court in point no. 40 of the impugned judgment whereby it was stated that PW-1 in his cross 26/31 examination stated that he met Sunder Lal in the year 1996 whereas PW-2 stated in his cross examination that Sunder Lal died in 1988. Ld. Trial Court observed that when Sunder Lal died in 1988 then how come plaintiff met him in 1996 and if he did not meet him then it is doubtful whether the documents Ex. PW-1/2 were indeed prepared. It is observed that veracity and genuineness of the documents relied upon by the plaintiff in shrouded in doubt. Though it is correct that there is contradiction in the year of death of Sunder Lal as deposed by both PW-1 and PW-2 but the said fact surely not enough to casts doubt upon the chain of ownership documents presented by plaintiff. Firstly, there is no death certificate of Sunder Lal available on record to see as to what is the real year of death of Sunder Lal. Secondly, as per case of plaintiff Sunder Lal is the person from whom Sh. Ashok had purchased the suit land on 24.3.1988 whereas as per PW-2 Sunder Lal expired on 23.9.1988 meaning thereby even if Sunder Lal expired on 24.3.1988 then i.e. the period after execution of the relevant documents and not before that hence doubt cannot be created on the documents executed between Sunder Lal and Ashok. Thirdly, whether Sunder Lal expired on 24.9.1988 or in the year 1996 does not have bearing on the documents executed between Ashok and Surender/plaintiff herein. Whether plaintiff met Sunder Lal or not is also of no importance because as per plaintiff he purchased the suit property from Sh. Ashok who was the owner and it would be unfair to 27/31 discard the case of plaintiff just because of mere little contradiction which is even not relevant. Accordingly, it is held that plaintiff is the owner of the suit property. As observed above it was clearly stated by PW-2 Sh. Ashok that possession of the suit property was handed over to the plaintiff on 18.10.1996. Even PW-3 Om Prakash who was neighbor of plaintiff stated that boundary wall on the property had been constructed by plaintiff. He also stated that plaintiff is the owner of the suit property and in the year 2008 the defendant no. 2 occupied the suit property. His testimony gets strength from the statement of defendant no. 2 recorded on 1.8.2009 u/o 10 CPC wherein defendant no. 2 had stated that he is in possession of the suit property and he is paying rent to defendant no. 1 for his occupation. He stated that he has been occupying the property since last fourteen or fifteen months. From the abovesaid it is clear that defendant no. 2 came in possession of the suit property since about June,2008 which strengthens the testimony given by PWs in that respect. Even otherwise, when the title has been established by the plaintiff the presumption of holding possession goes with the title and it automatically makes him entitled for the relief of possession whereas Ld. Trial Court had left the said question in lurch by stating that none of the parties have proved the ownership and the person in possession shall continue to remain in possession. Ld. Trial Court in para no. 52 has also mentioned that it is obligatory upon the plaintiff to first establish that 28/31 he is owner of the suit property as condition precedent to obtain the possession of the suit property. Ld. Trial Court has also mentioned that the defendant is in continuous possession and the possession is uninterrupted and he cannot be dispossessed by anybody except the true owner. Now, this observation is also irrelevant against the plaintiff as the defendant has lost the right to retain the possession. The suit has been filed within limitation i.e. within 12 years of dispossession. In view of the above observations, the plaintiff has been established as the true owner of the suit property having better title and thus is entitled to relief of possession. Hence it is made out that defendant no. 1 illegally took the possession of the suit property in the year 2008 and put defendant no. 2 as tenant in the same. Hence, it is held that plaintiff being owner of the suit property is entitled to recover the peaceful vacant possession of the suit property from the defendants. In view of the above, findings of Ld. Trial Court on issue no. 1 and 2 are reversed and both the issues are decided in favour of the plaintiff and against the defendants.
12. Issue no. 3 Whether the plaintiff is entitled for recovery of damages@ Rs.15,000/- per month?OPP- As far as issue no.3 is concerned, plaintiff has claimed the recovery of damages @ Rs.15,000/- per month on account of illegal occupation. However, nothing has been brought on record by the plaintiff to prove that suit property can fetch Rs.15,000/- per month whereas statement of 29/31 defendant no. 2 is on record whereby he had stated that he was paying Rs.3500/- per month as rent for occupation of the plot. Nothing has been brought on record by the plaintiff to substantiate his claim regarding the rate of recovery of damages but the Hon'ble High Court has held in 2010(116) DRJ 539 &2008(104) DRJ 246 that the court can take into consideration the manifold increase in rent in the area keeping in view the location of the suit property to determine the point of damages and judicial notice of the same can be taken. It has been held that if no documentary evidence is being led the court can fix the damages keeping in view the prime location of the property. The claim of damages by the plaintiff @ Rs.15,000/- per month is on higher side and accordingly Rs.5,000/- per month damages are awarded to the plaintiff payable by defendant no. 1 w.e.f the filing of the suit till recovery of the possession of the suit property alongwith interest @ 6% p.a. on each delay of mesne profit payment till realization. This issue is accordingly decided in favour of the plaintiff and against the defendants and findings of Ld. Trial Court are reversed.
13. Relief- In view of the above observations, instant appeal is allowed with costs and impugned judgment of Ld. Trial Court is set aside consequent to which suit is decreed with costs in favour of the plaintiff and against the defendants and defendants are hereby directed to hand over the vacant peaceful 30/31 possession of the suit property to the plaintiff within two months from passing of this judgment. Plaintiff is also awarded Rs.5,000/- per month towards damages for illegal occupation of the suit property w.e.f the filing of the suit till recovery of possession of the suit property alongwith interest @ 6% p.a. on each delay of mesne profit payment till realization. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open court (Ajay Goel)
On 7.2.2022 ADJ-4/ South West/Delhi
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