Delhi District Court
Chhotte Lal vs Khubi Ram (Since Deceased) on 1 December, 2025
IN THE COURT OF DISTRICT JUDGE-04,
(PRESIDED OVER BY: ANIL CHANDHEL)
WEST DISTRICT, THC, DELHI
CNR NO. DLWT01-000464-2019
RCA NO. 10/2019
1. Mr. Chhote Lal
S/o Mr. Raja Ram,
R/o of B-202, Inder Enclave,
Phase-I, Mubarakpur Road,
2. Mr. Shiv Kumar
S/o Mr. Balak Ram
R/o P-2/22, Mangolpuri,
Delhi-110083.
3. Centre of Indian Trade Union (Regd.)
Through its General Secretary
Mr. Anurag Saxena,
C/o I-441, Karam Pura,
New Delhi-110015.
4. Kapra General Mazdoor Lal Jhanda Union (Regd.),
Through its Secretary
Mr. Chhote Lal,
C/o I-441, Karam Pura,
5. Engineering Mazdoor Lal Jhanda Union (Regd.)
Through its Secretary,
Mr. Shiv Kumar,
C/o I-441, Karam Pura,
New Delhi-110015 ....Appellants
Versus
Late Khubi Ram (Since Deceased)
Through his legal heirs:-
________________________________________________________________
Chhote Lal Vs. Khubi Ram (since deceased) Page No. 1 of 84
RCA DJ NO. 10/2019
1. Ms. Son Devi
W/o Late Shri Khubi Ram
R/o Village Kaimawali,
Post Office Matroi,
District Aligarh, U.P.
2. Mr. Devender Kumar
S/o Late Shri Khubi Ram
R/o Village Kaimawali,
Post Office Matroi,
District Aligarh, U.P.
3. Mr. Prem Lal Sharma
S/o Late Shri Khubi Ram
R/o Village Kaimawali,
Post Office Matroi,
District Aligarh, U.P.
4. Ms. Kumari Gayatri
D/o Late Shri Khubi Ram
R/o Village Kaimawali,
Post Office Matroi,
District Aligarh, U.P.
5. Master Naveen Kumar
S/o Late Shri Khubi Ram
R/o Village Kaimawali,
Post Office Matroi,
District Aligarh, U.P.
6. Ms. Kumari Radha
D/o Late Shri Khubi Ram
R/o Village Kaimawali,
Post Office Matroi,
District Aligarh, U.P.
7. Ms. Kumari Manorma
D/o Late Shri Khubi Ram
R/o Village Kaimawali,
Post Office Matroi,
________________________________________________________________
Chhote Lal Vs. Khubi Ram (since deceased) Page No. 2 of 84
RCA DJ NO. 10/2019
District Aligarh, U.P.
8. Ms. Kumari Kushma
D/o Late Shri Khubi Ram.
R/o Village Kaimawali,
Post Office Matroi,
District Aligarh, U.P. ...Respondents
REGULAR CIVIL APPEAL UNDER
SECTION 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED
22.09.2016, PASSED BY LD. SCJ/RC
WEST, TIS HAZARI COURTS, DELHI IN
CS SCJ NO.7706/2016.
DATE OF INSTITUTION : 17.01.2019
JUDGMENT RESERVED ON : 31.10.2025
JUDGMENT PRONOUNCED ON : 01.12.2025
Appearances:
Mr. Devraj, Ld. Counsel for the Appellants.
Mr. Yashbir Sethi, Ld. Counsel for the Respondents.
JUDGMENT
1. This regular first Appeal, under Section 96 of the Code of Civil Procedure, 1908, has been preferred by the Appellant against the judgment and decree dated 22.09.2016, passed by ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 3 of 84 RCA DJ NO. 10/2019 Ld. Senior Civil Judge, West, Tis Hazari Courts, Delhi in CS SCJ No.7706/2016. In terms of the impugned judgment /decree, the Court of Ld. Senior Civil Judge has decreed the civil suit for the prayers of possession and the prayer of permanent injunction was declined. The Appellants were the Defendant No.2, Defendant No.5, Defendant No.6 and Defendant No.7 in the suit, and the remaining Defendants No.1, 3, 4 and 9 or their legal representatives have not challenged the impugned judgment and decree.
2. Proceedings before the Court of Ld. Sr. Civil Judge:
It will be appropriate to recapitulate the proceedings before Ld. Trial Court and the same are being summed up in brief in the paras stated hereinbelow:
2.1. Late Khubi Ram, i.e., the predecessor in interest of the Respondents, filed the civil suit for the prayers of possession, damages and permanent injunction, with regard to suit property. The averments made in the plaint by the Plaintiff, i.e., predecessor-in-interest of the Respondents, are briefly stated in the paras hereinbelow:
i. The Plaintiff was a permanent resident of Delhi and had been residing in the suit property, i.e., premises No. I-441, Karampura, New Delhi-110015.
________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 4 of 84 RCA DJ NO. 10/2019 ii. The suit property, i.e., quarter No. I-441, Karampura, New Delhi-110015, was allotted to the Plaintiff by the Housing Commissioner (Labour), Government of N.C.T. Delhi, as the Plaintiff was employed with S.B.M. Karampura, New Delhi-110015. The Plaintiff had made full payment of the abovementioned flat to the Housing Commissioner (Labour), Government of N.C.T. Delhi.
iii. The electricity connection as well as water connection were installed in the suit property in name of the Plaintiff. During the emergency period, i.e., in the year 1976, the management of S.B.M. terminated services of the Plaintiff as the Plaintiff was an active member of Lal Jhanda Majdoor Union Delhi.
iv. The Defendant No.1 to 3 and one Mukesh Kashyap, also being the members of the Lal Jhanda Majdoor Union, used to work with the Plaintiff and used to visit the flat of the Plaintiff. The Plaintiff allowed the Defendants No.1 to 3 and one Mr. Mukesh Kashyap to use his aforesaid flat along with him without any rent or any consideration. The electricity and water bills of suit property were paid by the Plaintiff and the Defendants did not contribute anything to the same. The Plaintiff had constructed the portion shown as green and yellow in the site plan and ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 5 of 84 RCA DJ NO. 10/2019 allowed the Defendants to use the green portion of the flat in-question.
v. The Swantantart Bharat Mill was closed and the Union was dissolved. The Plaintiff asked the Defendant No. 1 to 3 to remove their office in February, 1997 for the first time, however the Defendants No.1 to 3 and Mr. Mukesh Kashyap, in absence of the Plaintiff, removed his all belongings and placed the same in the portion shown as yellow in the attached site plan and put their locks during evening in the portion shown as red and green. Thereafter the Plaintiff was compelled to file a suit for permanent injunction in the Court of Ld. Civil Judge Delhi on 13.10.1999. The Plaintiff also reported the matter of his dispossession to the Police by filing complaints against the Defendants.
vi. The electricity was disconnected as the Plaintiff did not pay the charges since February, 1997, when the Plaintiff was illegally dispossessed from red and green portion as shown in the attached site plan.
vii. The Defendants had unauthorizedly and illegally occupied the flat of the Plaintiff as shown red and green in the attached site plan since 26 th/27th of February, 1997, when the Plaintiff's house-hold articles were removed from the said flat.
________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 6 of 84 RCA DJ NO. 10/2019 viii. The Plaintiff was the owner/allottee of the suit property and the Defendants did not have any right in the same and therefore, were liable to handover the possession of the suit property to the Plaintiff.
On the basis of above-mentioned averments, the prayers of possession, permanent injunction and damages were sought in the suit.
2.2. The suit was initially filed against five Defendants, i.e., Mr. Inderpal (Defendant No.1), the Appellant No.1 (Defendant No.2), Mr. Brij Bhushan Tiwari (Defendant No.3), Mr. Ram Kirpal (Defendant No.4) and the Appellant No.2 (Defendant No.5). The aforesaid Defendants were duly served and filed a joint written statement in the suit and took a preliminary objection in the same that 4 Unions were in possession of the suit property and suit was bad for their non-joinder.
Thereafter the Plaintiff filed an application under Order I Rule 10 of the Code of Civil Procedure, 1908 for impleadment of 4 additional Defendants, i.e., the Appellant No.3, 4, 5 and General Majdoor Jhanda Union, as the Defendant No. 6 to 9. The aforesaid application was allowed on 01.02.2000 and the afore-mentioned 4 unions were impleaded as the Defendant No.6 to 9 in the suit. The Defendant No.6 to 9 also filed a joint written statement. The written statement filed on behalf of the Defendant No.6 to 9 was signed by Appellant No.1 & 2 and one Mr. Nagender ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 7 of 84 RCA DJ NO. 10/2019 Prasad. Though two sets of written statements have been filed, however the defence as pleaded by the Defendants in both the written statements, was substantively same. The contentions, raised by the Defendants in the written statements, constituting their defence, are briefly stated in the sub paras hereinbelow:
i. The suit was not properly valued for the purpose of Court fee and jurisdiction. The Court did not have pecuniary jurisdiction to entertain, try and decide the case as the market value of the suit property was Rs.10,00,000/-.
ii. In earlier suit filed by the Plaintiff for the relief of Permanent Injunction on 26.02.1997, it was pleaded that he was in physical possession of the suit property on 20.08.1997 and the Defendants were trying to dispossess him, whereas in the present suit, the Plaintiff stated that he was dispossessed on 26th/27th February, 1997. Therefore, the suit was based upon false averments and the Plaintiff rendered himself liable for perjury.
iii. The Plaintiff had gone to his Village in 1976 after handing over the possession of the suit property to the Defendant No.6 to 9. Since he was not occupying the quarter, his allotment was cancelled by the Housing Commissioner (Labour).
________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 8 of 84 RCA DJ NO. 10/2019 iv. The Plaintiff had no locus standi to file the suit as the Plaintiff was neither the owner of the suit property nor he was an allottee as his allotment stood cancelled in the records of the Housing Commissioner (Labour). The Defendants were in occupation of the property in question for the last about 22 years. The Government had announced the scheme of transferring the ownership rights in the year 1978 in the name of the occupants. The Plaintiff had left the suit property in 1976 after handing over its possession to CITU (Centre of Indian Trade Unions). Thus, the Plaintiff had no better title than the Defendants Unions.
v. It is submitted that the portion shown in green was constructed by the Defendant Unions and portion "yellow" was constructed by the occupants of 1st floor flat bearing No.I-442. The Plaintiff was working in DCM (Silk) Mills from where his Seniors were terminated and his labour dispute was referred through Kapra Mazdoor Lal Jhanda Union from the property in question, which fact established that the Union was having its office at I-441, Karampura, New Delhi even at that time. Although the electricity connections and water connections were in name of ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 9 of 84 RCA DJ NO. 10/2019 the Plaintiff, but the bills were paid by the Unions. A telephone connection under No.5934590 was in the name of General Mazdoor Lal Jhanda Union (Regd.) vi. The Defendant Nos. 1 to 3 and Mr. Mukesh Kashyap were office bearers of Kapra Mazdoor Lal Jhanda Union and General Mazdoor Lal Jhanda Union and they used to sit in quarter in question as the same was used as office by the Unions. The Plaintiff had left for the native village in 1976 after handing over the possession of the Quarter in question to the C.I.T.U. (Centre for Indian Trade Unions). Mr. Mukesh Kashyap started sitting in the office since 1986 and prior to that other office bearers used to sit in the office. In April 1999, Mr. Mukesh Kashyap was expelled from Engineering Workers Lal Jhanda Union for his anti-Union activities and thereafter Mr. Mukesh Kashyap had colluded with the Plaintiff.
The Defendant No.1 to 5 had also additionally stated in the preliminary objections about the suit being bad for non- joinder of the Unions and bad for misjoinder the Defendant No.1 to 5 in their individual capacity. The Defendants have generically denied the other averments of the plaint in their written statements.
2.3. The Plaintiff filed the replications to the written statements of the Defendants and refuted the contentions of the same ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 10 of 84 RCA DJ NO. 10/2019 and reiterated the averments of the plaint.
2.4. On the basis of pleadings of the parties, the Court of Ld. Senior Civil Judge framed the following Issues on 06.11.2001:
i. Whether suit as framed suffers from misjoinder and non-joinder of parties? OPD.
ii. Whether the suit is properly valued for the purpose of court fee & jurisdiction? OPP iii. Whether suit suffers from suppression of material fact as alleged in para 6 of preliminary objection of W.S.? OPD iv. Whether Plaintiff has no locus standi to file present suit? OPD v. Whether Plaintiff is entitled for decree of possession of suit premises? OPP vi. Whether Plaintiff is entitled for a decree of damages as claimed. If so at what rate and for what period? OPP vii. Relief.
2.5. The Plaintiff filed his affidavit of evidence, however he unfortunately passed away before beginning of his examination and subsequently his LRs were impleaded on record on 19.03.2004. The LRs of the Plaintiff led their ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 11 of 84 RCA DJ NO. 10/2019 evidence and examined two witnesses on their behalf. Mr. Rameshshwar Dayal was examined as PW-1. The PW-1 did not rely upon any document in his examination in chief. The PW-1 was cross-examined by Ld. Counsel for the Defendants and was discharged upon conclusion of his cross-examination.
2.6. The LRs of the Plaintiff examined their Special Power of Attorney as PW-2. The PW-2 reiterated the averments of the plaint in his examination in chief. The PW-2 relied upon the following documents in his examination in chief:
i. Exhibit PW-2/1: Special Power of Attorney. ii. Exhibit PW-2/2: Death Certificate of the Plaintiff. iii. Exhibit PW-2/3: Copy of electricity bill. iv. Exhibit PW-2/4: Copy of the water bill. v. Exhibit PW-2/5: Copy of the affidavit with regard to the payment of Rs.13,552/ to the Assistant Housing Commissioner, Karampura, New Delhi.
vi. Exhibit PW-2/6: The site Plan.
vii. Exhibit PW-2/7: Copy of complaint made to the
SHO Police Station Moti Nagar.
viii. Exhibit PW-2/8: Copy of complaint made to
Assistant Commissioner, MCD.
ix. Mark-A: Copy of complaint with regard to the
theft of electricity.
x. Exhibit PW-2/9: Copy of Kalandra under Section
107/151.
________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 12 of 84 RCA DJ NO. 10/2019 xi. Mark-B: Copy of complaint made to SHO PS Moti Nagar.
xii. Exhibit PW-2/12: Copy of award.
xiii. Exhibit PW-2/13: Copy of Ration Card.
xiv. Mark-C: Copy of Conveyance Deed.
The PW-2 was cross-examined by Ld. Counsel for the Defendants and was discharged upon conclusion of his cross-examination. Thereafter the Plaintiff's evidence was closed.
2.7. The Defendants also led their evidence and examined two witnesses in support of their case. The Defendant No.1 appeared as the DW-1. The DW-2 reiterated the averments of the written statements in his examination in chief. The DW-1 relied upon the following documents in his examination-in-
chief:
i. Exhibit DW-1/1: Copy of Award.
ii. Exhibit DW-1/2: Copy of plaint.
iii. Exhibit DW-1/3: Written statement.
iv. Exhibit DW-1/4: Replication.
v. Exhibit DW-1/5: Application under Order 39 Rule
1 & 2 of CPC.
vi. Exhibit DW-1/6: Reply to the Application under
Order 39 Rule 1 & 2 of CPC.
vii. Exhibit DW-1/7: Application under Order 39 Rule
2-A of CPC.
________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 13 of 84 RCA DJ NO. 10/2019 viii. Exhibit DW-1/8: Reply to the Application under Order 39 Rule 2-A of CPC.
ix. Exhibit DW-1/9: Copy of letter dated 05.05.1995.
x. Exhibit DW-1/10: Copy of award.
xi. Exhibit DW-1/11: Award dated 02.06.1995
xii. Exhibit DW-1/12: Certificate along with award
dated 06.06.1994.
xiii. Exhibit DW-1/13: The letter dated 13.01.1987.
xiv. Exhibit DW-1/14: The letter dated 12.01.1987.
xv. Exhibit DW-1/15: The letter from Birla Textiles.
xvi. Exhibit DW-1/17 to Exhibit DW-1/23: Telephone
bills.
xvii. Exhibit DW-1/24:letter dated 10.03.1997.
xviii. Exhibit DW-1/25: Letter dated 10.03.1997 written
to the office of Labour Commissioner.
xix. Exhibit DW-1/26: Letter received from the
Secretary Food & Supply Ministry.
xx. Exhibit DW-1/27: Copy of the letter dated
21.04.1997.
xxi. Exhibit DW-1/28: Copy of the letter dated
24.04.1997 written by CPI (M ) written to PS Moti Nagar.
xxii. Exhibit DW-1/29: Letter dated 03.05.1997 written to SHO PS Moti Nagar.
xxiii. Exhibit DW-30: Letter dated 25.07.1997. xxiv. Exhibit DW-1/31: Letter dated 14.08.1997 written to SHO PS Moti Nagar.
xxv. Exhibit DW-1/32: Letter dated 16.08.1997 ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 14 of 84 RCA DJ NO. 10/2019 received from SHO PS Moti Nagar and the DCP West.
xxvi. Exhibit DW-1/33: Letter dated 14.08.1997 bearing endorsement of receipt of SHO PS Moti Nagar.
The DW-1 was cross-examined by Ld. Counsel for the Plaintiff and was confronted with the Order dated 21.03.2003, passed by the Hon'ble High of Court of Delhi and the same is Exhibit-DW-1/P1. The DW-1 was discharged upon conclusion of his cross-examination.
2.8. The Defendant No.2 appeared as DW-2. The DW-2 reiterated the averments of the written statements in his examination in chief. The DW-2 relied upon the documents, which were already exhibited in the examination-in-chief of DW-1. The DW-2 was cross-examined by Ld. Counsel for the Plaintiff and was discharged upon conclusion of his cross-examination.
2.9. The Court of Ld. Senior Civil Judge heard the arguments and posted the matter for Orders. On 22.09.2016, the suit was decreed. Though the judgment was pronounced on 22.09.2016 in terms the above-mentioned Order, however the judgment was not signed by Ld. Senior Civil Judge on the aforesaid date and the Presiding Officer was placed under suspension, before the judgment could be signed. The cause of suspension did not relate to the present matter. Thereafter ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 15 of 84 RCA DJ NO. 10/2019 the Successor of the Ld. Senior Civil Judge issued notice to the parties and heard submissions of the parties on the aspect of judgment not being signed, however pronounced by way of a separate Order. After duly recording the submissions of the parties, the successor Ld. Senior Civil Judge held that the draft judgment, kept in the Court files, was the judgment pronounced by Ld. Senior Civil Judge and after appending the attestation/certification of authenticity, the unsigned draft judgment pronounced by the then Ld. Senior Civil Judge was signed by the successor Ld. Senior Civil Judge on 28.11.2018.
3. The Grounds of Appeal:
The grounds of appeal, as stated in the memo of appeal, are being summed up in the paras hereinbelow:
i. Ld. Trial Court failed to appreciate that unless judgment is signed by the Judge, it remains only a draft, which could be changed or amended by the Judge. The correct legal recourse should have been to appreciate the evidence and hear the matter afresh, instead of signing the draft of judgment dated 22.09.2016.
ii. The draft of the judgment was proposed by the Judge, caught in a corruption case and therefore, the matter should have been heard afresh. The cardinal principal ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 16 of 84 RCA DJ NO. 10/2019 is that confidence of the litigants in the judicial process should not be shaken.
iii. The Respondents did not enter into witness box and did not offer themselves for cross-examination and therefore an adverse inference should have been drawn against them. The son of the Plaintiff Mr. Prem Pal Sharma was present in the suit and in terms of his affidavit filed under Order 32 Rule 1 and 5 of CPC has stated that he was conversant with the facts and circumstances of the case. The wife of the Plaintiff and eldest son of the Plaintiff chose not to appear as witnesses. The Respondents have examined their Attorney and the Attorney cannot be allowed to appear as a witness in the matter, in the capacity of the Plaintiff. The witnesses of the Respondents were further evasive in answer to the questions.
iv. The Appellants were not party to the writ petition, i.e., CWP No. 840/2001 and therefore the observations made therein could not have been relied upon by the Ld. Trial Court as being binding upon the Appellants.
v. The Ld. Trial Court did not properly appreciate the evidence and the impugned judgment and decree was based on conjunctures and surmises.
4. Submissions:
________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 17 of 84 RCA DJ NO. 10/2019 4.1. Ld. Counsel for the Appellant has submitted that the Respondents miserably failed to prove their case as neither the Plaintiff nor the LRs of the Plaintiff were examined as witnesses in the matter. It is submitted that the PW-1's evidence was factually limited and PW-2 was examined to prove the averments of the plaint, however the PW-2 was merely an attorney and therefore, did not have any personal knowledge of right and title of the Plaintiff, as pleaded in the plaint and could not legally prove the same. It is submitted that the Plaintiff or his LRs did not enter the witness box and therefore there should be an adverse inference against them for withholding best evidence. It is submitted that two witnesses, examined on behalf of the Plaintiff, were not witnesses to the facts relating to controversy, being subject matter of the case and were strangers to the facts of the suit.
It is submitted that PW-1 and PW-2 have further remained evasive in answers to the cross-examination and their testimony was wholly unreliable. It is submitted that the allotment in favour of the Plaintiff stood cancelled and the Plaintiff was not the owner and was further not in possession since 1976 and therefore, the suit for possession was not maintainable. It is submitted that since the draft judgment was not signed by Ld. Senior Civil Judge, therefore, matter should have been posted for final arguments again.
4.2. Ld. Counsel for the Respondents has submitted that the Defendants did not have any defence in the matter. It is ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 18 of 84 RCA DJ NO. 10/2019 submitted that the Defendants themselves admitted the allotment in favour of the Plaintiff and acquisition of possession of the suit property by them through the Plaintiff and therefore, they were merely licensees in the suit property, who are estopped from challenging the right and title of the licensor. It is submitted that the Defendants have themselves raised multiple contradictory pleas such as obtaining the possession through the Plaintiff as well as purchasing the suit property from the Plaintiff, which they miserably failed to establish on record. It is submitted that burden to prove a better right to retain possession of the suit property was upon the Defendants and not upon the Plaintiff, in view of the averments made in the written statements. It is submitted that the impugned judgment is a reasoned one and no other alternative conclusion could have been arrived upon the facts and evidence of the case. It is submitted that mere suspension of the Ld. Presiding Officer before signing of judgment would not vitiate the judgment, once the judgment was delivered and the authenticity of the draft judgment has duly been ascertained and affirmed by the Successor in the Office.
5. Points for determination:
5.1. The Plaintiff, i.e., predecessor in interest of the Respondents, filed the suit in question for possession and consequential prayers. The case set up by the Plaintiff was that the suit property was allotted to the Plaintiff by Housing ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 19 of 84 RCA DJ NO. 10/2019 Commissioner and consideration amount of allotment was deposited by the Plaintiff. It is stated that the Plaintiff had permitted the Defendants to use the suit property without payment of any rent. It is stated that the Plaintiff asked the Defendant Nos. 1 to 3 to remove their office from the suit property in February, 1997, however, the Defendant Nos.1 to 3, in absence of the Plaintiff, removed all his belongings from the suit property and the Plaintiff was dispossessed.
The case of Appellants/Defendants is that the Plaintiff went to his village in the year 1976 after handing over the possession of the suit property to the Defendant Nos.6 to 9. It is stated that since the Plaintiff was not occupying the suit property, therefore, his allotment was cancelled by Housing Commissioner. It is stated that the Government had announced a scheme in 1978 for transferring the ownership rights in name of the occupants of such properties. It is stated that the Plaintiff did not have a better title than the Defendants and was not entitled to seek possession from them.
5.2. The Court of Ld. Senior Civil Judge has held that the suit property was allotted to the Plaintiff in the year 1965 and the Housing Commissioner did not deny the policy to give the ownership rights to the allottees, including the Plaintiff. It is held that non-examination of the Plaintiff was on account of his death and the witnesses examined on behalf of the LRs had personal knowledge of the facts deposed by them. It is held that though the LRs of the Plaintiff were living in the ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 20 of 84 RCA DJ NO. 10/2019 village and his sons were quite young at the time when the incidents in question took place. It is held that the Defendants failed to prove any right in suit property other than that of being the licensees. Accordingly, the suit was decreed for the prayer of possession, however the claim for damages was declined.
5.3. In terms of the pleadings of the parties, evidence led by them, conclusions rendered by the Court of Ld. Senior Civil Judge, grounds of challenge in the memo of appeal and rival contentions of Ld. Counsels for the parties, this Court deems it appropriate to frame the following points for determination in order to adjudicate and decide the present appeal:
i. Whether the Court of Ld. Senior Civil Judge has correctly decided the Issues and the conclusions have been rendered upon due appreciation of evidence?
ii. Whether signing of the draft judgment by Ld. Successor of Ld. Senior Civil Judge suffers from any legal infirmity?
The above-mentioned points for determination are being discussed and decided in the paras hereinafter.
6. Whether the Court of Ld. Senior Civil Judge has correctly decided the Issues and the conclusions have been rendered upon due appreciation of evidence?
________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 21 of 84 RCA DJ NO. 10/2019 The Court of Ld. Senior Civil Judge has framed 6 Issues in the matter, which are being considered and discussed in the sub-paras hereinbelow:
6.1. Issue No.1: Whether suit as framed suffers from misjoinder and non-joinder of parties? OPD.
6.1.1. The onus to prove the Issue No.1 was upon the Defendants.
The Defendant No.1 to 5 have stated in the preliminary objection No.1 of their written statement that the Defendant No.6 to 9, i.e., four trade unions, were in possession of the suit property and were necessary parties for complete and effective adjudication of the suit. Subsequently the Plaintiff had filed an application for impleadment of the Defendant No.6 to 9, which was allowed by the Court of Ld. Senior Civil Judge on 01.02.2000. Once the Defendant No. 6 to 9 were impleaded as parties to the suit, the objection with regard to their non-joinder did not survive.
6.1.2. It has also been stated in the written statement that the Defendant No.1 to 5 have been sued in their individual capacity and the suit is bad for their misjoinder. The exact nature of the Defendant No.6 to 9 is not evident from the material on record. Though the Defendant No.6 to 9 were stated to be Trade Unions, however there is nothing on record as to their constitution, their origin or enactment under which they came to be established. It can-not be ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 22 of 84 RCA DJ NO. 10/2019 inferred from the material on record that the Defendant No.6 to 9 are or are not legal entities in themselves, separate and distinct from the functionaries or executive body operating, managing and controlling them.
6.1.3. The suit has been defended on behalf of the Defendant No. 6 to 9 by the Defendant No. 1 to 5. The Defendant No. 6 to 9 were functioning through the Defendant No. 1 to 5 and were in possession of the suit property through them and the possession, if granted, would be recovered through them. Therefore, the Defendant No. 1 to 5 were necessary parties for the prayer of the possession and the suit is not bad for their misjoinder. The Issue No.1, therefore, deserves to be decided in favour of the Plaintiff/Respondents and against the Appellants/Defendant.
6.2. Issue No.2: Whether the suit is properly valued for the purpose of court fee & jurisdiction? OPP 6.2.1. The Onus to prove the Issue No.2 was upon the Plaintiff. The valuation of the suit in question for its prayers was stated in para 20 of the plaint and the same is being reproduced hereinbelow:
"20. That the valuation of the suit for the purpose of Court fees and for jurisdiction has been fixed at Rs.2,50,000/- (Rupees two lac fifty thousand only) for the purpose of possession of the portion shown as ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 23 of 84 RCA DJ NO. 10/2019 red and green in the attached site plan at the time of the filing of the present suit and Rs.130/- for the purpose of permanent injunction and the proper court fees of Rs.4,784/- plus Rs.13/- has been paid on the present suit."
The Defendant No.1 to 5 have stated in para 3 of the preliminary objections of the written statement that the Plaintiff did not provide any basis for valuation of Rs.2,50,000/- and the market value of the suit property was around Rs.10,00,000/- at time of institution of the suit and therefore, the suit was undervalued.
6.2.2. Both the parties did not provide any documentary evidence in support of their contentions about the market value of the suit property and their contentions are completely oral. It has been observed by the Court of Ld. Senior Civil Judge that the DW-2 has admitted the market value of the suit property to be around Rs.2,50,000/- at the time of filing of the suit. The DW-2, in cross-examination dated 16.05.2016 (last para at page 4), has stated that value of the suit property was less Rs.2,50,000/- in the year 1999, i.e., at the time of filing of the suit. In terms of rival oral contentions, once the DW-2 admits the value of the suit property to be less than Rs.2,50,000/-, the objection of the Defendant about the suit property being more than Rs.10,00,000/- fades away.
6.2.3. It is also stated in the written statement that no Court fees has been paid upon the prayer of damages. The damages in the suit were claimed from the date of institution of the suit. ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 24 of 84 RCA DJ NO. 10/2019 The suit is required to be valued for the amount ascertained till the date of institution and not for the future claims. The prayer of future damages always remains contingent upon the Defendants continuing in the possession and the amount remains to be ascertained by taking into account the period of time, which the course of adjudication of the suit may take and the same can-not be ascertained at the time of institution of the suit. Even if a Plaintiff has assessed the monthly amount of such damages for the purposes of valuation/Court fees, no computation or assumption can be made about the time, till which the Plaintiff would be entitled to claim the same. Therefore, the Court fees upon the prayer of future damages is payable, once the same are ascertained by a decree for damages. Thus the Issue No.2 deserves to be decided in favour of the Plaintiff/Respondents and this Court is in agreement with the conclusions and reasoning of the Court of Ld. Senior Civil Judge on this Issue.
6.3. Issue No.3: Whether suit suffers from suppression of material fact as alleged in para 6 of preliminary objection of W.S.? OPD 6.3.1. The onus to prove the Issue No.3 was upon the Appellants/Defendants. The Issue No.3 was framed on basis of preliminary objection No.6 of the written statement of the Defendant No.1 to 5. The Defendant No.1 to 5 have stated in the aforesaid para that the Plaintiff had made contradictory statements about his dispossession in the contempt ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 25 of 84 RCA DJ NO. 10/2019 application filed in the previous suit and in the plaint of the present suit. It is stated that the Plaintiff claimed to be in possession of the suit property on 20.08.1997 in the contempt application filed in the previous suit, whereas the Plaintiff stated the date of his dispossession as 26 th / 27th of February, 1997 in the plaint of the present suit.
6.3.2. The application under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908, filed by the Plaintiff in the previous suit, is relied upon by DW-1 and DW-2 as Exhibit DW-1/7. The aforesaid application is dated 20.08.1997. In the aforesaid application, the Plaintiff mentioned that the Defendants were trying to violate the injunction/status quo Order passed in the suit and were trying to dispossess him. The term and tenor of the aforesaid application is certainly open for an interpretation that the Plaintiff claimed to be in possession of the suit property on 20.08.1997. The Plaintiff had stated in the suit under appeal (in para 18 of the plaint) that he was dispossessed on 26th /27th of February, 1997.
6.3.3. The aforesaid contradiction could have been explained by the Plaintiff himself and the Plaintiff has filed his affidavit of evidence, however he had unfortunately passed away before his examination and cross-examination. The LRs of the Plaintiff examined two witnesses. The PW-1 has stated in his cross-examination dated 06.11.2006 (page 2) that Khubi Ram (Plaintiff) was in the disputed property till February, 1997, when he was dispossessed by the Defendants and he ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 26 of 84 RCA DJ NO. 10/2019 was jointly residing with the Defendants upto February, 1997. The PW-1 has denied the suggestion that the Plaintiff left for his village after handing over the possession of the suit property to the Defendants in 1976. Similarly the PW-2 has also denied the same suggestion in his cross- examination. No questions have been asked on behalf of the Defendants from PW-1 and PW-2 about the aforesaid contradiction.
6.3.4. The DW-1, in his cross-examination dated 16.10.2014 (page
5) stated that the Plaintiff was dispossessed from the suit property in February, 1997. He has further stated (page 4) that the Defendants were put in possession by the Police after dispossessing the Plaintiff and this had happened in February, 1997.
6.3.5. Thus, in terms of evidence of the parties on record, the probability of the Plaintiff being dispossessed in month of February, 1997 is greater than the Plaintiff being in possession on 20.08.1997. Therefore, the statement made in the present suit is correct, whereas the false statement pertains to the previous suit. Further, the aforesaid contradiction alone would not create any dis-entitlement for the prayers of the suit, if the Plaintiff is otherwise entitled for the same. Even in terms of the preliminary objections of the Defendants, the objection is taken with the averment that the Plaintiff had committed perjury. In so far as the question of perjury is concerned, the aforesaid aspect could have been ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 27 of 84 RCA DJ NO. 10/2019 decided, after giving the Plaintiff an opportunity to explain and after the Plaintiff had appeared in witness box and was confronted with the contradiction in question. The Plaintiff has unfortunately passed away prior to his examination and is not unavailable to the notion of perjury, which even if taken to be on the face value of averment, pertains only to the previous suit. Since the false statement is not made in the present suit and further, the prayers of the suit are not affected by the aforesaid contradiction; therefore, the discussion on this Issue is purely academic, which does not affect other Issues or outcome of the suit. The Issue No.3 is accordingly decided. The Issue No.3 is discussed in a different manner by the Court of Ld. Senior Civil Judge, however the aforesaid discussion, as held hereinabove, even if interpreted in favour of the Defendants, does not affect the outcome of the present suit.
6.4. Issue No.4: Whether Plaintiff has no locus standi to file present suit? OPD Issue No.5: Whether Plaintiff is entitled for decree of possession of suit premises? OPP 6.4.1. The onus to prove the Issue No.4 has been placed upon the Defendants/Appellants. The Issue No.4 pertains to locus standi of the Plaintiff to institute the suit in question and the Issue No.5 pertains to entitlement of the Plaintiff for the prayers of possession. Though the onus to prove the Issue No.4 is placed upon the Defendants, however this Court is of ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 28 of 84 RCA DJ NO. 10/2019 the view that a Plaintiff must establish the cause of action in the affirmative, before the same could be repelled by the Defendants and the aforesaid cause of action is inherent part of setting out an entitlement for prayer of possession. Therefore, the Issue No.4 and 5 are being taken up for discussion together.
6.4.2. The Plaintiff has stated in the plaint that suit property was allotted to him by the Housing Commissioner (Labour) upon payment of the allotment amount. It is further stated by him that he had permitted the Defendant No.1 to 5 to use the suit property for their office without payment of any rent. It is stated that subsequently the Swatantra Bharat Mill was closed and Union was dissolved and the Plaintiff asked the Defendants to remove their office from the suit property in February, 1997, however the Defendants did not vacate the suit property and removed the goods/articles of the Plaintiff from the suit property and dispossessed him.
6.4.3. The Defendants have stated in their written statements that the Plaintiff had left the suit property in 1976 after handing over its possession to CITU (Centre of Indian Trade Unions) and went to his village and since he was not occupying the quarter, his allotment was cancelled by the Housing Commissioner (Labour). It is stated that the Plaintiff was neither the owner of the suit property nor he was an allottee as his allotment stood cancelled in the records of the Housing Commissioner (Labour). It is stated that the ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 29 of 84 RCA DJ NO. 10/2019 Defendants were in occupation of suit property for the last about 22 years and the Government had announced a scheme for transferring the ownership rights in the year 1978 in name of the occupants of such properties. It is stated that the portion shown in green in site plan was constructed by the Appellants/Defendants, whereas the portion shown in yellow was constructed by the occupier of First Floor of Quarter.
6.4.4. If the contentions of the Defendants are read in totality, they do not dispute that they had come into possession of the suit property through the Plaintiff. The Defendants have stated in para 7 of preliminary objections and para 1 of reply on merits of written statement that the Plaintiff handed over the possession of the suit property to them in 1976 and went to his village. It is admitted that the suit property was allotted in name of the Plaintiff by Housing Commissioner (Labour), however it is stand of the Defendants that the aforesaid allotment was subsequently cancelled.
6.4.5. Ld. Counsel for the Appellant has submitted that the Plaintiff has failed to prove his ownership as his allotment was cancelled and therefore, the suit for possession was not maintainable. It is submitted that the Plaintiff has handed over the possession of the suit property in the year 1976 and therefore, the suit filed in the year 1999 was barred by limitation. It is submitted that the Plaintiff or legal representatives have not appeared as witnesses in the suit and strangers to the transaction were examined as witnesses ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 30 of 84 RCA DJ NO. 10/2019 and they have failed to prove the averments of the plaint. It is submitted that the PW-2 was merely an attorney of the legal representatives of the Plaintiff's LRs, who themselves did not enter the witness box and therefore, he was unable to prove the contentions of the plaint. It is submitted that the best evidence was withheld on behalf of the Plaintiff, and therefore, there should be an adverse inference against the Plaintiff/LRs. It submitted that an attorney could not have proved the contentions of the plaint beyond his knowledge and therefore, the suit for possession could not have been decreed upon such insufficient evidence.
6.4.6. In para 28 of the Impugned Judgment, it has been mentioned that Ld. Counsel for the Defendants relied upon certain judgments, however the names/citations of the aforesaid judgments are not stated in the para. The written arguments of the Defendants are available in the Trial Court Record and the judgments, relied upon by the Defendants, are mentioned in the same and copies of the same are also available in the case file. Though the aforesaid judgments have not been referred to by Ld. Counsel for the Appellants in his arguments in appeal, however since the aforesaid judgments have been filed before the Court of Ld. Senior Civil Judge, therefore, this Court has gone through and duly considered the aforesaid judgments, which are as follows:
i. Ishwar Bhai C. Patel Vs. Harihar Behera: II (1999) SLT 597;
________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 31 of 84 RCA DJ NO. 10/2019 ii. Sardar Gurbaksh Singh Vs. Gurdial Singh : AIR 1927PC230;
iii. Kirpa Singh Vs. Ajaipal Singh: AIR 1930 Lahore 1; iv. Martand Pandhari Nath Vs. Radha Bai: AIR 1931 Bombay 97;
v. Vidhyadhar Vs. Mankikrao: AIR 1999 SC 1441; vi. Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd:
(2005) 2SCC 2017;
vii. Ram Prasad Vs. Hari Narain: AIR 1998 Rajasthan 185. The abovementioned first five judgments reiterate in reference to Section 114 Illustration (g) of Indian Evidence Act, 1872 that if a party does not appear as witness in a case, does not swear the averments of the pleadings on oath and does not offer itself for cross-examination, there should an adverse inference against such a party and a presumption would arise that case set up by such party is not truthful. The above-referred Judgment No. (v) & (vi) lay down that the power to depose of a power of attorney holder on behalf of the principal extends only to depositions in respect of 'acts' done by him in exercise of the power granted by such instrument and a power of attorney holder cannot depose for principal in respect of matters of which only principal can have personal knowledge and in respect of which the principal is liable to be cross-examined.
6.4.7. This Court seeks to refer to observations of the Hon'ble Supreme Court in "Union of India (UOI) vs. Ibrahim ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 32 of 84 RCA DJ NO. 10/2019 Uddin and Ors. (17.07.2012): 2012 INSC 288", wherein, after relying upon previous relevant judgments on the subject, it has been held that adverse inference, under Section 114 Illustration (g) of the Indian Evidence Act, 1872, cannot be drawn in a routine manner by considering only the factum of mere non-production of a document or mere non- examination of a witness and the Court has to carefully examine all pros and cons of the matter before drawing an adverse inference against such party. It is held that the aforesaid presumption is not substitute for burden of proof of a fact, which a particular party is bound to prove. The relevant observations of the Hon'ble Court in the afore- mentioned judgment are being reproduced hereinbelow:
"Presumption under Section 114(g) of the Evidence Act :
6. Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the Court may draw adverse inference under Section 114(g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. (Vide: Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; Hiralal & Ors. v. Badkulal & Ors., AIR 1953 SC 225; A. Raghavamma & Anr. v. A. Chenchamma & Anr., AIR 1964 SC 136; The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755; Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Ors., AIR 1968 SC 1413; M/s. Bharat Heavy Electrical Ltd. v. State of U.P. & Ors., AIR 2003 SC 3024; Musauddin Ahmed v. State of Assam, AIR 2010 SC 3813; and Khatri Hotels Pvt.
Ltd. & Anr. v. Union of India & Anr., (2011) 9 SCC
126).
________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 33 of 84 RCA DJ NO. 10/2019
7. However, in Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96, a view has been expressed that it is open to a litigant to refrain from producing any document that he considers irrelevant; if the other litigant is dissatisfied, it is for him to apply for interrogatories/inspections and production of documents. If he fails to do so, neither he nor the Court at his suggestion, is entitled to draw any inference as to the contents of any such documents.
8. In Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba Reddy & Ors., AIR 2003 SC 3342, this Court held that all the pros and cons must be examined before drawing an adverse inference against a party. In that case the issue had been, as to whether two persons had been travelling together in the vehicle and presumption had been drawn only on the basis that the bus tickets of both the persons were not produced. This Court held that presumption could not have been drawn if other larger evidence was shown to the contrary. (See also: Mohinder Kaur v. Kusam Anand, (2000) 4 SCC 214; and Takhaji Hiraji v. Thakore Kubersing Chamansing & Ors., AIR 2001 SC 2328).
9. In Municipal Corporation, Faridabad v. Siri Niwas, AIR 2004 SC 4681, this Court has taken the view that the law laid down by this Court in Gopal Krishnaji Ketkar (supra) did not lay down any law, that in all situations the presumption in terms of clause (g) of Section 114 of the Evidence Act must be drawn.
10. In Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das & Anr., AIR 1967 SC 256, this Court held that mere withholding of documentary evidence by a party is not enough to draw adverse inference against him. The other party must ask the party in possession of such evidence to produce the same, and in case the party in possession does not produce it, adverse inference may be drawn:
"It is true that the defendant-respondent also did not call upon the plaintiff-appellant to produce the ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 34 of 84 RCA DJ NO. 10/2019 documents whose existence was admitted by one or the other witness of the plaintiff and that therefore, strictly speaking, no inference adverse to the plaintiff can be drawn from his non- producing the list of documents. The Court may not be in a position to conclude from such omission that those documents would have directly established the case for the respondent. But it can take into consideration in weighing the evidence or any direct inferences from established facts that the documents might have favoured the respondent case."
11. In Ramrati Kuer v. Dwarika Prasad Singh & Ors., AIR 1967 SC 1134, this Court held:
"It is true that Dwarika Prasad Singh said that his father used to keep accounts. But no attempt was made on behalf of the appellant to ask the court to order Dwarika Prasad Singh to produce the accounts. An adverse inference could only have been drawn against the plaintiffs-respondents if the appellant had asked the court to order them to produce accounts and they had failed to produce them after admitting that Basekhi Singh used to keep accounts. But no such prayer was made to the court, and in the circumstances no adverse inference could be drawn from the non-production of accounts." (See also: Ravi Yashwant Bhoir v. District Collector, Raigad & Ors., AIR 2012 SC 1339).
12. In Smt. Indira Kaur & Ors. v. Shri Sheo Lal Kapoor, AIR 1988 SC 1074, the lower courts drew an adverse inference against the appellant- plaintiff on the ground that the plaintiff was not ready and willing to perform his part of the contract. The question arose as to whether the party had the means to pay. The court further held that before the adverse inference is drawn against a particular party, the conduct and diligence of the other party is also to be examined. Where a person deposed that as he had deposited the money in the Bank ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 35 of 84 RCA DJ NO. 10/2019 and the other party did not even ask as on what date and in which Bank the amount had been deposited and did not remain diligent enough, the question of drawing adverse inference against such a person for not producing the Pass Book etc. cannot be drawn.
13. In Mahendra L. Jain & Ors. v. Indore Development Authority & Ors., (2005) 1 SCC 639, this Court held that mere non-production of documents would not result in adverse inference. If a document was called for in the absence of any pleadings, the same was not relevant. An adverse inference need not necessarily be drawn only because it would be lawful to do so.
14. In Manager, R.B.I., Bangalore v. S. Mani & Ors., AIR 2005 SC 2179, this Court dealt with the issue wherein the Industrial Tribunal directed the employer to produce the attendance register in respect of the first party workmen. The explanation of the appellant was that the attendance registers being very old, could not be produced. The Tribunal, however, in its award noticed the same and drew an adverse inference against the appellants for non-production of the attendance register alone. This Court reversed the finding observing:
"As noticed hereinbefore, in this case also the respondents did not adduce any evidence whatsoever. Thus, in the facts and circumstances of the case, the Tribunal erred in drawing an adverse inference.
The initial burden of proof was on the workmen to show that they had completed 240 days of service. The Tribunal did not consider the question from that angle. It held that the burden of proof was upon the appellant on the premise that they have failed to prove their plea of abandonment of service" (See also: A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534; R.M. Yellatti v. Assistant Executive Engineer AIR 2006 SC 355; and Pratap Singh & Anr. v. State of M.P., AIR 2006 SC 514). ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 36 of 84 RCA DJ NO. 10/2019
15. Order XI CPC contains certain provisions with the object to save expense by obtaining information as to material facts and to obtain admission of any fact which he has to prove on any issue. Therefore, a party has a right to submit interrogatories relating to the same matter in issue. The expression "matter" means a question or issue in dispute in the action and not the thing about which such dispute arises. The object of introducing such provision is to secure all material documents and to put an end to protracted enquiry with respect to document/material in possession of the other party. In such a fact-situation, no adverse inference can be drawn against a party for non-production of a document unless notice is served and procedure is followed. Under Rule 14 of Order XI, the court is competent to direct any party to produce the document asked by the other party which is in his possession or power and relating to any material in question in such suit. Rule 15 Order XI provides for inspection of documents referred to in pleadings or affidavits. Rule 18 thereof, empowers the court to issue order for inspection. Rule 21 thereof provides for very stringent consequences for non-compliance with the order of discovery, as in view of the said provisions in case the party fails to comply with any order to answer interrogatories or for discovery or inspection of documents, he shall, if he is a plaintiff, be liable to have his suit dismissed for want of prosecution and if he is a defendant, to have his defence, if any, struck out and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the court for an order to that effect. Thus, in view of the above, the suit may be dismissed for non-compliance of the aforesaid orders by the plaintiff and the plaintiff shall also be precluded from bringing a fresh suit on the same cause of action. Similarly, defence of the defendant may be struck off for non-compliance of such orders.
16. Thus, in view of the above, the law on the issue can be summarised to the effect that, issue of drawing ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 37 of 84 RCA DJ NO. 10/2019 adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot loose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI CPC. Conduct and diligence of the other party is also of paramount importance. Presumption or adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the court to direct the other side to produce the document and other side failed to comply with the court's order, the court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary.
17. In the instant case, admittedly, the plaintiff/respondent no.1 during the pendency of his suit had made an application before the authorities under the control of the appellant/defendant no.1 to make the inspection. However, he was not permitted to have any inspection. The plaintiff/respondent no.1 did not submit any interrogatory statement or an application for making inspection or for production of the document as provided under Order XI CPC. In such a fact-situation, in view of the law referred to hereinabove, it is not permissible for the first appellate Court or the High Court to draw any adverse inference against the appellant/defendant no.1."
(Underlining & Highlighting added) ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 38 of 84 RCA DJ NO. 10/2019 Therefore, all the facts and circumstances of the case are to weighed by the Court before drawing any adverse inference for withholding the best evidence in the matter. This Court has gone through the judgments No.(i) to (v) mentioned in para No.6.4.6 hereinabove and the facts of present case are distinguishable from the facts of the above-referred case. The parties against which such adverse inference under Section 114 Illustration (g) of the Indian Evidence Act, 1872 was drawn by the Court in the aforesaid judgments, were not dead before the opportunity to appear as a witness arose and they intentionally did not come forward to appear as witnesses.
6.4.8. The fact of the matter remains that the Plaintiff had instituted the suit in question and was following up the same during his life time. The Plaintiff had also filed his affidavit of evidence, however he passed away before he could be examined as a witness. It has been noted by the Court of Ld. Senior Civil Judge in Order dated 17.09.2004 that the affidavit of the Plaintiff was on record and since he was not cross-examined, therefore, the affidavit would not be read into for any purpose. This Court is in disagreement with the aforesaid observations in the Order dated 17.09.2004 as the death of a witness, prior to his cross-examination, does not lead to an automatic conclusion that his affidavit of evidence is to be completely discarded. It has been held by Hon'ble High Court of Delhi in, "Krishan Dayal Vs. Chandu Ram MANU/DE/0078/1969: ILR 1969 Delhi 1090", that where ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 39 of 84 RCA DJ NO. 10/2019 the cross-examination has not completed on account of death of a witness, such evidence can still be read by Court by applying a rule of caution while appreciating its evidentiary value. It has been held by the Court that a statement of a witness, being admissible at the time of recording, does not become inadmissible by reason of subsequent death of the witness before cross-examination. Though the absence of cross examination would certainly affect the questions as to what value and weightage such a statement would carry. Further, even if the aforesaid affidavit of evidence is to be discarded, it is clear on record that the Plaintiff could not be cross-examined on account of his death and not due to any unwillingness on his part to appear as a witness for the cross- examination.
6.4.9. The LRs of the Plaintiff were impleaded on record and have examined two witnesses, whose evidence is substantively with regard to the possession of the Plaintiff and his dispossession by the Defendants in February, 1997. It does not emerge from the facts of the case that LRs of the Plaintiff were aware or were witnesses to the essential aspects or disputed facts of the present case. It is submitted in the memo of appeal that the Plaintiff's son and wife could have appeared as the witnesses. It is submitted that the Plaintiff's son in one of the applications, filed in the suit, has filed a supporting affidavit, wherein it was stated that he was aware of the facts and circumstances of the case. Merely filing of an affidavit in support of one formal application can-not be ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 40 of 84 RCA DJ NO. 10/2019 termed to an ipso-facto unconditional statement that such person is a witness to all the crucial aspects or substantive details of the transactions in the suit. The cross-examination of the PW-2 indicates that the Plaintiff's wife and family were living in the village and not in the suit property. The Defendants have challenged the aforesaid position in the cross-examination.
6.4.10. The Plaintiff during his life time was available as a witness and did not shy away from appearing as a witness. The Plaintiff could not appear as a witness on account of his death and the witnesses examined on behalf of LRs of the Plaintiff, including the PW-2 did not depose about the facts, on the basis of their being attorney. It is evident from their testimony that they have deposed about the possession of the Plaintiff and his dispossession, on account of their knowledge about the same. Therefore, this Court is unable to find any substance in the contentions of the Ld. Counsel for the Appellant for drawing an adverse inference for non- examination of the Plaintiff/LRs. Moreover, if a comparative analysis of pleadings of the parties is carried out, the foundational facts such as the Plaintiff being an allottee of the suit property and the Defendant acquiring the possession of the suit property through the Plaintiff are not disputed. The Defendants have stated that the Plaintiff handed over the suit property and went to his village in 1976 and further his allotment being cancelled, the Defendants were entitled to remain in occupation on account of policy of the ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 41 of 84 RCA DJ NO. 10/2019 Government. The aforesaid contentions are such which were required to be proved by the Defendants, in terms of Section 102 of Indian Evidence Act, 1872, as the case of the Defendants would fail, if no evidence were to be given by the either side. The non-examination of the Plaintiff was not intentional in the first place and further would not help the Defendants, in view of their pleaded defence as discussed hereinabove, as the burden of proof of aforesaid facts/defence rests upon the Defendants/Appellants.
6.4.11. The core question to be decided is as to what is/was status of the Defendants in the suit property, more importantly prior to 1997. The Defendants have stated in the written statement that the Plaintiff had left the suit property in 1976 after handing over the possession of the suit property to the Defendant No. 6 to 9. The Defendants in their pleadings and in the examination in chief of the DW-1 and DW-2 have not corroborated the aforesaid contentions further to clarify as to what was the capacity in which the possession of the suit property was handed over to them. It has not been further stated that the Plaintiff has relinquished, abandoned or sold his rights in the suit property in favour of the Defendants. A person may be in possession of an immovable property in various capacities, such as a purchaser of rights of person handing over the possession, as a tenant or as a licensee etc. The Defendants do not claim to be tenants. The cross- examination of the DW-1 and DW-2 also does not spell the nature of right under which the possession was handed over.
________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 42 of 84 RCA DJ NO. 10/2019 The testimony of DW-1 and DW-2 does not prove that the Plaintiff has handed over the exclusive possession of the suit property to the Defendants in 1976. The DW-1 has stated in his cross-examination dated 21.08.2014 (Page 3) that he did not have personal knowledge about the factum of the Plaintiff handing over the possession of the suit property to the Defendants and he came to know about the same from other members of the Union. The DW-2 also does not prove the factum of possession being handed to the Union by the Plaintiff. The relevant part of his cross-examination dated 09.04.2015 (page 2 & 3) is being reproduced hereinbelow:
".................It is correct that the suit property was allotted to Khubi Ram in the year 1964. Union was formed in the year 1972. Shri Khubi Ram was not in possession of the suit property in the year 1972, however I cannot tell about his possession prior to 1972. As per records, Union is functioning from the suit property since around 1975-76. I do not know who was in possession prior to the year 1975-
76. I do not know as whether Khubi Ram left the property in the year 1975-76. Before 1975-76, Kapda Majdoor Lal Jhanda Union was functioning from the suit property. I do not remember whether this fact was mentioned in the WS or in my affidavit or evidence. I do not know when Kapda Majdoor Lal Jhanda Union was registered. The suit property was the registered office of Kapda Majdoor Lal Jhanda Union. Again said, state office of this Union was at 3-BP House, Rafi Marg, New Delhi at that time. I do not know when Engineering Workers Lal Jhanda Union was registered. The registered office of the said Union Engineering Workers Lal Jhanda Union was at 3-BP House, Rafi Marg, New Delhi. It is correct that electricity and water connections ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 43 of 84 RCA DJ NO. 10/2019 installed at the suit property continued to be in the name of Shri Khubi Ram.
It is correct that we mention the residential address of the workers in the claim petition in the labour court along with the address of the Union. Case of Shri Khubi Ram was contested by the Kapda Majdoor Lal Jhanda Union. I have not seen the records of the case filed by the Union on behalf of Shri Khubi Ram against the management. I have not brought the papers of the case contested by the Union on behalf of Shri Khubi Ram. Vol. Award copy is on the record. I have not brought the original of Ex.DW-1/1. I do not know if the address of Shri Khubi Ram in his industrial case was that of the suit property. I do not know if the suit property has never been purchased by our Union from the plaintiff. I do not know any fact pertaining to other unions except General Majdoor Lal Jhanda Union. I do not remember if my union had written to any authority that the Union has a right in the suit property.
Sh. Khubi Ram was resident of some village in District Aligarh. I have no document in my possession to show that Shri Khubi Ram was residing in his village after 1976. It is correct that Shri Khubi Ram had got the ration card prepared at the address of the suit property after 1976. Vol. The same was wrongly prepared by him and the Union had objected to. I do not know whether the number of ration card was 5267 dated 14.05.1996 or not. It is correct that water and electricity consumption bills in respect of the suit property were always being made and paid in the name of the plaintiff...."
Though it is the case pleaded by the Defendants in the written statements that the Plaintiff handed over the possession of the suit property to the Unions in 1976 and left for his village, however the DW-2 does not have any personal knowledge of the aforesaid fact. He further ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 44 of 84 RCA DJ NO. 10/2019 contradicts the averments of written statement by stating that the Plaintiff was not in possession of the suit property in 1976. The DW-2 further is not aware as to who was in possession of the suit property or as to how and from whom the Unions acquired the possession. He is further not aware as to whether the Plaintiff left for his village in the year 1976. Therefore, neither DW-1 nor DW-2 prove the averments that the Plaintiff has handed over the exclusive possession of the suit property to the Defendants/Appellants in the year 1976 and left for his village. There is further nothing in the testimony of DW-1 and DW-2, which would indicate that the Defendants were in hostile possession of the suit property prior to 1997.
6.4.12. Interestingly, the Defendants in their evidence have relied upon a letter dated 21.04.1997, i.e., Exhibit DW-1/27, which was issued to the SHO of the area on a letter-head of the Communist Party of India by someone namely Rampal. The Defendants did not dispute the averments of the aforesaid letter and have further relied upon the same in their evidence. It is stated in the aforesaid letter that the Plaintiff had sold the suit property for an amount of Rs.1,15,000/- in the year 1978. The aforesaid contention has not been stated in the written statement. No document has been furnished on record to substantiate, corroborate or explain the aforesaid contention. The DW-1 has stated that he did not have knowledge about the facts and documents prior to year 2000 (page 2 of cross-examination dated 14.11.2011). The DW-1 ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 45 of 84 RCA DJ NO. 10/2019 has stated in the cross-examination (dated 21.08.2014, page
3) that there is no document to show purchase of the suit property from the Plaintiff. The DW-2 has stated in cross examination (at page 3 of cross-examination dated 09.04.2015) that he did not know if the suit property was never purchased by the Unions from the Plaintiff. Therefore the contentions of the sale of the suit property to the Unions/Defendants by the Plaintiff were neither mentioned in the written statement nor in the examination in chief nor have been proved in evidence of the Defendants.
6.4.13. Therefore, the Defendants have neither proved the contentions of the sale of the suit property by the Plaintiff to them nor it has been proved that the Plaintiff handed over the possession to them in 1976 and left for his village. Even if the Defendants are assumed to be in possession of the suit property from the year 1976, the Defendants have not established that they have exercised any hostile right in the suit property, any time prior to the year 1997. The Defendants have admitted that the electricity and water connections of the suit property were in name of the Plaintiff. The Defendants have never attempted to get the same changed or transferred to their name. The Appellants/Defendants have never approached any authority for change of allotment of the suit property in their name. The Defendants have challenged the rights of the Plaintiff for the first time in terms of letters dated 10.03.1997, which are Exhibit DW-1/24 and Exhibit DW-1/25, i.e., subsequent to ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 46 of 84 RCA DJ NO. 10/2019 institution of the first suit against them by the Plaintiff. The suit in question has been filed within period of limitation from the date, when the Defendants have disputed the rights of the Plaintiff in the suit property.
6.4.14. It is stated in the written statement that the allotment of the Plaintiff was cancelled and the Government in the year 1978 had announced the scheme for transferring the ownership rights in name of the occupants. The Defendants have not placed on record any proof of cancellation of allotment of the Plaintiff. The Defendants have neither filed or produced any cancellation letter or notice nor any official from the Office of concerned department was summoned/examined. The Plaintiff had filed a Writ Petition WP (c) No.840/2001 before the Hon'ble High Court for the prayers of execution of Conveyance Deed of the suit property in his favour and the same was decided in terms of an Order dated 21.01.2003. The DW-1 was confronted with the aforesaid Order dated 21.01.2003 during his cross-examination and the certified copy of the aforesaid Order is Exhibit DW-1/P-1. The DW-1 did not dispute the factum of the aforesaid writ, being filed by the Plaintiff and being decided in terms of the Order dated 21.01.2003. The relevant part of the Order dated 21.01.2003, passed by the Hon'ble High Court, is being reproduced hereinbelow:
"In the counter affidavit filed on behalf of respondents, they have not denied the aforesaid facts relating to allotment of flat to the petitioner, their policy to give ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 47 of 84 RCA DJ NO. 10/2019 ownership rights to such allottees and also that petitioner has paid full consideration in respect of flat in question. However, it is stated in this counter affidavit that respondents found that petitioner had sublet the premises in question and in view of thereof the petitioner was not entitled to get the conveyance deed execution his favour in terms of respondents' policy. It is also mentioned that the flat in question was rented out to General Mazdoor Lal Jhanda Union unauthorisedly.
Even as per the petitioners' own case, activities of the aforesaid union were being carried out, from the flat in question. The petitioner, however, claims that it is he who had permitted the union to carry out these activities in which he was also involved as an active member of the union and the petitioner was not taking any rent. According to the petitioner, he was dispossessed by Inderpal and other office bearers of the aforesaid union sometime in the year 1997 and in that view of the matter, the petitioner has already filed suit for possession, damages and permanent injunction against the said Sh. Inderpal and others which is at present pending in the court of Mr. Vikas Dhall, Civil Judge, Delhi. The petitioner has produced copy of the plaint as well as written statement. From a perusal of the written statement filed on behalf of Sh. Inderpal and others, it could be seen that the case of the defendants in the said suit is that possession of the flat in question was given by the petitioner to them sometime in the 1976 for the activities of the union. It is therefore clear that there is a dispute between the petitioner and Inderpal and others about the said flat.
In that view of the matter, learned counsel for petitioner has no objection if this writ petition is disposed off with the direction to the respondents to take necessary action after the disposal of the aforesaid suit and depending upon the outcome thereof.
The writ petition is accordingly disposed of with direction to the respondents to execute necessary ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 48 of 84 RCA DJ NO. 10/2019 conveyance deed and get it registered in case petitioner succeeds in the aforesaid suit and it is held by the Civil Judge that petitioner had no sublet the premises and the suit is decreed in petitioner's favour.
No costs."
Thus, in terms of the aforesaid Order dated 21.01.2003, it has been recorded that the Plaintiff has deposited the consideration amount for execution of the Conveyance Deed. The Housing Commissioner did not per-se dispute the rights of the Plaintiff to seek conveyance by virtue of being an allottee. The only objection by the Housing Commissioner against execution of the conveyance deed was that the Plaintiff had sub-let the property. Therefore, execution of the conveyance deed was made conditional on the event of the Plaintiff succeeding in the present suit and it being held in the suit that the Plaintiff had not sublet the suit property. The Court of Ld. Senior Civil Judge has discussed the import of the Order dated 21.01.2003 in para No. 32 of impugned judgment. It is submitted on behalf of the Appellants that the Appellants were not a party to the aforesaid Writ Petition and therefore the observations made therein cannot be read against the Appellants. The Appellants may not be a party to the aforesaid proceedings, however if certain directions of any Order were against the interests of the Appellant, they were bound to seek review of the same or pursue an appropriate legal course of action. The only consequence of the aforesaid Order is that the rights of the Plaintiff as an allottee were acknowledged and the conveyance is to be executed in favour of the Plaintiff, in case, he succeeds in the ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 49 of 84 RCA DJ NO. 10/2019 suit and it is held that the Plaintiff did not sub-let the suit property.
6.4.15. The Appellants/Defendants have evidently not taken any steps for execution of any official document pertaining to the suit property in their favour. The Defendants have not produced any document to substantiate their contentions that the Government has ever floated any policy for recognizing the rights of the occupants, other than the allottee. No copy of any such policy was filed or produced by the Defendants. Nothing has been shown to be done by the Defendants in furtherance of the any such policy, as contended by them in the written statements. On the contrary, the Plaintiff has taken steps for execution of the conveyance deed, which was directed to conditionally executed in favour of the Plaintiff.
6.4.16. The Defendants state in the written statement that the Plaintiff inducted them in possession of the suit property. The factum of such possession being exclusive to the Defendants has not been proved. It is not the case of the Defendants that they were tenants of the Plaintiff. The Defendants have failed to prove that the suit property was sold by Plaintiff to them. The Defendants have failed to prove any right to occupy the suit property in pursuance of any policy or directions by authority, which has allotted the suit property in favour of the Plaintiff. The Defendants have failed to prove that the allotment of the Plaintiff was ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 50 of 84 RCA DJ NO. 10/2019 cancelled. Therefore, the capacity of the Defendants was only of a permissive user or licensees in the suit property.
6.4.17. Ld. Counsel for the Appellants has submitted that the allotment of the Plaintiff stood cancelled and the Plaintiff is not the owner of the suit property and therefore, the suit is not maintainable for the prayer of possession. The Defendants have failed to prove that the allotment of the Plaintiff was cancelled. Though the conveyance deed is yet to be executed in favour of the Plaintiff, however even in absence of the aforesaid conveyance deed, the suit for possession will be maintainable. A suit for possession of an immovable property can be filed in multiple capacities such as:
i. On the basis of absolute ownership.
ii. On the basis of landlord-tenant relationship;
iii. On the basis of licensor-licensee relationship;
iv. On the basis of prior possession alone under
Section 6 of the Specific Relief Act, 1963, within a period of 6 months from the date of dispossession;
v. On the basis of prior possession alone under Article 64 of the Limitation Act, 1963, within a period of 12 years from the date of dispossession.
In the suit for possession on the basis of landlord-tenant relationship or licensor-licensee relationship, the ownership ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 51 of 84 RCA DJ NO. 10/2019 is not needed to be proved, in case the relationship of landlord-tenant or licensor-licensee is established. Section 116 of the Indian Evidence Act, 1872 creates a bar against a tenant or licensee to challenge the ownership or title of the landlord or licensor. In a suit for possession under Section 6 of the Specific Relief Act, 1963, the ownership is not required to be proved. Even in a suit under Article 64 of Limitation Act, 1963, a suit for possession of immovable property, on the basis of prior possession alone, can be filed within a period of 12 years from the date of dispossession. The Article 64 of the Limitation Act, 1963 is being reproduced hereinbelow:
"Article 64 of the Limitation Act, 1963:
Description of the suit: For possession of immovable property based on previous possession and not on title, when the Plaintiff while in possession of the property has been dispossessed.
Period of limitation: Twelve years. Time from which period begins to run: The date of dispossession."
6.4.18. It has been held by the Hon'ble full bench of the Hon'ble Supreme Court of India in "Nair Service Society Ltd. vs. Rev. Fr. K.C. Alexander (12.02.1968 - SC):
MANU/SC/0144/1968: 1968 INSC 39", that in a suit on the basis of possession, filed by the Plaintiff, within a period of 12 years from the date of his dispossession, as per Article 64 of the Limitation Act, the Plaintiff is not required to prove ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 52 of 84 RCA DJ NO. 10/2019 his title, unless and until the Defendant challenges the same and prove the title in the suit property and in that eventuality, the Plaintiff has to show a better title than the Defendant.
The relevant observations of the Hon'ble Supreme Court in the above-mentioned judgment are being reproduced hereinbelow:
"15. The Limitation Act, before its recent amendment provided a period of twelve years as limitation to recover possession of immovable property when the Plaintiff, while in possession of the property was dispossesses or had discontinued possession and the period was calculated from the date of dispossession or discontinuance. Mr. Nambiar argues that there cannot be two periods of limitation, namely, 6 months and 12 years for suits based on possession alone and that the longer period of limitation requires proof of title by the Plaintiff. We do not agree. No doubt there are a few old cases in which this view was expressed but they have since been either overruled or dissented from. The uniform view of the courts is that if Section 9 of the Specific Relief Act is utilised the Plaintiff need not prove title and the title of the Defendant does not avail him. When, however, the period of 6 months has passed questions of title can be raised by the Defendant and if he does so the Plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under Section 9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless the Defendant can prove one. The present amended Articles 64 and 65 bring out this difference. Article 64 enables a suit within 12 years from dispossession, for possession of immovable property based on possession and not on title, when the Plaintiff while in possession of ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 53 of 84 RCA DJ NO. 10/2019 the property has been dispossessed. Article 65 is for possession of immovable property or any interest therein based on title. The amendment is not remedial but declaratory of the law. In our judgment the suit was competent.
16. Mr. Nambiar also relies in this connection upon Section 110 of the Indian Evidence Act and claims that in the case of the Society there is a presumption of title. In other words, he relies upon the principle that possession follows title, and that after the expiry of 6 months, the Plaintiff must prove title.
That possession may prima facie raise a presumption of title no one can deny but this presumption can hardly arise when the facts are known. When the facts disclose no title in either party, possession alone decides.
In this case Section 110 of the Evidence Act is immaterial because neither party had title. It is for this reason that Mr. Nambiar places a greater emphasis on the plea that a suit on bare possession cannot be maintained after the expiry of 6 months and that the Society has a right to plead jus tertii. The first must be held to be unsubstantial and the second is equally unfounded.
17. The proposition of law on the subject has been summed up by Salmond on Torts (13th Edn.) at page 172 in the following words:
The mere de facto and wrongful possession of land is a valid title of right against all persons who cannot show a better title in themselves, and is therefore sufficient to support an action of trespass against such persons. Just as a legal title to land without the possession of it is insufficient for this purpose, so conversely the possession of it without legal title is enough. To other words, no Defendant in an action of trespass can plead the jus tertii the right of possession outstanding in some third person-- as against the fact of possession in the ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 54 of 84 RCA DJ NO. 10/2019 Plaintiff.
The maxim of law is Adversus extraneous vitiosa possession prodesse solert*, and if the Plaintiff is in possession the jus tertii does not afford a defence. Salmond, however, goes on to say:
But usually the Plaintiff in an action of ejectment is not in possession; he relies upon his right to possession, unaccompanied by actual possession. In such a case he must recover by the strength of his own title, without any regard to the weakness of the Defendant's. The result, therefore, is that in action of ejectment the jus tertii is in practice a good defence. This is sometimes spoken of as the doctrine of Doe v. Barnard (1849) 13 QB. 945.
Salmond, however, makes two exceptions to this statement and the second he states thus:
Probably, if the Defendant's possession is wrongful as against the Plaintiff, the Plaintiff may succeed though he cannot show a good title: Doed Hughes v. Dyball (1829) 3 C&P 610; Davison v. Gent (1857) 1 H & N. 744. But possession is prima facie evidence is not displaced by proof of title. If such prima facie evidence is not displaced by proof of title in a third person the Plaintiff with prior possession will recover. So in Asher v. Whitlock (1865) LR. 1 QB 1) where a man inclosed waste land and died without having had 20 years' possession, the heir of his devisee was held entitled to recover it against a person who entered upon it without any title. This decision, although long, doubtful, may now be regarded as authoritative in consequence of its express recognition of the Judicial Committee in Perry v. Clissold (1907) AC, 73.
Mr. Nambiar strongly relies upon the above ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 55 of 84 RCA DJ NO. 10/2019 exposition of the law and upon institutional comments by Wiren "The Plea of Jus tertii in ejectment" (1925) 41 LQR. 139, Hargreaves "Terminology and Title in Ejectment (1940) 56 LQR. 376 and Holdsworth's article in 56 LQR 479.
18. In our judgment this involves an incorrect approach to our problem. To express our meaning we may begin by reading Perry v. Clissold to discover if the principle that possession is good against all but the true owner has in any way been departed from. Perry v. Clissold reaffirmed the principle by stating quite clearly:
It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. and if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title.
Therefore, the Plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The action of the Society was a violent invasion of his possession and in the law as it stands in India the Plaintiff could maintain a possessory suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised. As this was a suit of latter kind title could be examined. But whose title? Admittedly neither side could establish title. The Plaintiff at least pleaded the statute of Limitation and asserted that he had perfected his title by adverse possession. But as he did not join the State in this suit to get a declaration, he may be said to have not rested his ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 56 of 84 RCA DJ NO. 10/2019 case on an acquired title. His suit was thus limited to recovering possession from one who had trespassed against him. The enquiry thus narrows to this: did the Society have any title in itself, was acting under authority express or implied of the true owner or was it just pleading a title in a third party? To the first two questions we find no difficulty in furnishing an answer. It is clearly in the negative. So the only question is whether the Defendant could plead that the title was in the State? Since in every such case between trespassers the-title must be outstanding in a third party a Defendant will be placed in a position of dominance. He has only to evict the prior trespasser and sit pretty pleading that the title is in someone else. As Erle J put it in Hurling v. Read (11 Q.B. 904) 'parties might imagine that they acquired some right by merely intruding upon land in the night, running up a hut and occupying it before morning'. This will be subversive of the fundamental doctrine which was accepted always and was reaffirmed in Perry v. Clissold. The law does not therefore countenance the doctrine of 'findings keepings.'
19. Indeed Asher v. Whitlock (1885) I.Q.B.I. goes much further. It laid down as the head-note correctly summarizes: A person in possession of land without other title has a devisable interest, and the heir of his devisee can maintain ejectment against a person who had entered upon the land and cannot show title or possession in any one prior to the testator. No doubt as stated by Lord Mac naghten n Perry v. Clissold, Doe v. Barnard (supra) lays down the proposition that "if a person having only a possessory title to land be supplanted in the possession by another who has himself no better title, and afterwards brings an action to recover the land, he must fail in case he shows in the course of the proceedings that the title on which he seeks to recover was merely possessory." Lord Macnaghten observes further that it is difficult, if not impossible to reconcile ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 57 of 84 RCA DJ NO. 10/2019 Asher v. Whitlock with Doe v. Barnard and then concludes:
The judgment of Cockburn C.J. is clear on the point. The rest of the Court concurred and it may be observed that one of the members of the court in Asher v. Whitlock (Lush J) had been counsel for the successful party in Doe v. Barnard. The conclusion at which the court arrived in Doe v. Barnard is hardly consistent with the views of such eminent authorities on real property law as Mr. Preston and Mr. Joshua Williams. It is opposed to the opinions of modern text-writers of such weight and authority as Professor Maitland and Holmes J of the Supreme Court of the United States (see articles by Professor Maitland in the Law Quarterly Review Vols. 1, 2 and 4;
Holmes, Common Law p. 244; Professor J.B. Ames in 3 Harv. Law. Rev. 324 n.) The difference in the two cases and which made Asher v. Whitlock prevail was indicated in that case by Mellor J thus:
In Doe v. Barnard the Plaintiff did not rely on her own possession merely but showed a prior possession in her husband, with whom she was unconnected in point of title. Here the first possessor is connected in title with the Plaintiff: for there can be no doubt that the testator's interest was devisable. The effect of the two cases is that between two claimants, neither of whom has title in himself the Plaintiff if dispossessed is entitled to recover possession subject of course to the law of limitation. If he proves that he was dispossessed within 12 years he can maintain his action.
20. It is because of this that Mr. Nambiar claimed entitled to plead jus tertii. His contention is that in action of ejectment (as opposed to an action of ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 58 of 84 RCA DJ NO. 10/2019 trespass) jus tertii is capable of being pleaded. The old action of ejectment was used to try freehold titles but it was abolished in 1873. If was also used "for recovery of land by one who claimed not the right to seisin but the right to possession by virtue of some chattel interest such as a term of years." In such cases "the defence of jus tertii admits that the Plaintiff had such a right of entry as would generally entitle him to succeed, but seeks to rebut that conclusion by setting up a better right in some third person" or that the Plaintiff had no right of entry at all.
21. To summarise, the difference between Asher v. Whitlock and Doe v. Barnard is this. In Doe v. Barnard the principle settled was that it is quite open to the Defendant to rebut the presumption that the prior possessor has title, i.e., seisin. This he can do by showing that the title is in himself; if he cannot do this he can show that the title is in some third person. Asher v. Whitlock lays down that a person in possession of land has a good title against all the world except the true owner and it is wrong in principle for any one without title or authority of the true owner to disposses him and relying on his position as Defendant in ejectment to remain in possession. As Loft in his Maxim No. 265 puts it possession contra omnes valet praeter eur cui ius sir possessionis (he that hath possession hath right against all but him that hath the very right): See Smith v. Oxenden 1 Ch. Ca 25. A Defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the Plaintiff's and thus be able to raise a presumption prior in time. It is to be noticed that Ames (HLR 3 313 37); Carson (Real Property Statutes 2nd Ed. p. 180); Halsbury (Laws of England, Vol. 24, 3rd Ed. p. 255 f. n. (o);
Property in Land, 2nd Ed. p. 4, 40); Lightwood (Time Limit on Actions pp. 120--133): Maitland (supra), Newell (Action in Ejectment, American Ed. pp. 433--434); Pollock (Law of Torts, 15th Ed. p. ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 59 of 84 RCA DJ NO. 10/2019
279); Salmond (Law of Torts (supra); and Williams and Yates (Law of Ejectment 2nd Ed. pp. 218, 250) hold that Doe v. Barnard does not represent true law. Winer (to whom I am indebted for much of the information) gives a list of other writers who adhere still to the view that jus tertii can be pleaded.
22. Mr. Nambiar pressed upon us the view that we should not accept Perry v. Clissold. It must be remembered that that case was argued twice before the Privy Council and on the second occasion Earl of Halsbury, L.C. Lords Macnaghten, Davey, Robertson, Atkinson, Sir Ford North and Sir Arthur Wilson heard the case. Lord Macnaghtens judgment is brief but quite clear. Mr. Nambiar relies upon two other cases of the Privy Council and a reference to them is necessary. In Dharani Kanta Lahari v. Garbar Ali Khan MANU/PR/0103/1912 : 25 MLJ. 95 PC. a suit in ejectment was filed. The Plaintiffs failed to prove that the lands of which they complained dispossession were ever in their possession within 12 years before suit and that the lands were not the lands covered by a sanad which was produced by the Defendants. The case is distinguishable. It is to be noticed that Lord Macnaghten was the President of the Board and the judgment of the Board, December 5, 1912, did not base the case on Doe v. Barnard or even refer to it. The second is Mahabir Prasad Jamuna Singh 92 I, C. 31 P.C. In this case the Board observed as follows:
Counsel for the Appellant (Defendant) admits that in the face of the ruling by the Board he could not impugn the reversionary right of the Plaintiff's vendors, but he contents that the Defendant is in possession and in order to reject him the Plaintiff must show that there is no other reversionary heir in the same degree or nearer than his assignors whose title he (the Defendant) can urge against the Plaintiff's claim for ejectment. In other ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 60 of 84 RCA DJ NO. 10/2019 words, the action being one of ejectment the Defendant is entitled to plead to defence the right of someone else equally entitled with the Plaintiff's vendors.
After observing this the Board held that the Defendant had failed to prove his point. The observation does not lead to the conclusion that a Defendant can prove title in another unconnected with his own estate. The case is not an authority for the wider proposition.
23. The cases of the Judicial Committee are not binding on us but we approve of the dictum in Perry v. Clissold. No subsequent case has been brought to our notice departing from that view. No doubt a great controversy exists over the two cases of Doe v. Barnard and Asher v. Whitlock but it must be taken to be finally resolved by Perry v.
Clissold. A similar view has been consistently taken in India and the amendment of the Indian Limitation Act has given approval to the proposition accepted in Perry v. Clissold and may be taken to be declaratory of the law in India. We hold that the suit was maintainable."
Thus it has been held by the Hon'ble Supreme Court that in a suit on the basis of possession, filed by the Plaintiff, within a period of 12 years from the date of his dispossession, as per Article 64 of the Limitation Act, 1963, the Plaintiff is not required to prove his title, unless and until the Defendant challenges the same and prove the title in the suit property and in that eventuality, the Plaintiff has to show a better title than the Defendant. Therefore, a suit on the basis of prior possession is maintainable for the prayer of possession, under Article 64 of the Limitation Act, 1963 and unless and ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 61 of 84 RCA DJ NO. 10/2019 until, the Defendant does not prove the title, the Plaintiff is not required to disprove the same or show a better title than the Defendant.
6.4.19. The Plaintiff was the original allottee of the suit property and the Defendants have admitted that they came into possession of the suit property through the Plaintiff. The Defendants have failed to prove any right other than of being the permissive occupier. The Defendants have failed to prove that they have asserted any hostile right or denied the rights of the Plaintiff prior to the year 1997. The DW-1 has stated in his cross-examination dated 16.10.2014 (page 3, 4 & 5) that the Plaintiff was dispossessed from the suit property in February, 1997. Therefore, the suit for possession by the Plaintiff is maintainable, in absence of the proof of title in terms of Article 64 of the Limitation Act, 1963, on the basis of his prior possession and dispossession by the Defendants as the Defendants have failed to prove any right/title in the suit property other than being the licensees of the Plaintiff.
6.4.20. Moreover, once the factum of the Appellants/Defendants being the licensees of the Plaintiff is established, the Appellants/Defendants are estopped from challenging the ownership or title of the Plaintiff in terms of Section 116 of the Indian Evidence Act, 1872, which is being reproduced hereinbelow:
"116. Estoppel of tenant and of licensee of person in ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 62 of 84 RCA DJ NO. 10/2019 possession.
No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
6.4.21. The bar under Section 116 of Act of 1872 against the tenant or licensee has been explained and affirmed by the Hon'ble Supreme Court of India in "Bansraj Laltaprasad Mishra Vs. Stanley Parker Jones: AIR2006SC3569", and the relevant observations of the Hon'ble Court are being reproduced hereinbelow:
"11. The "possession" in the instant case relates to second limb of the Section. It is couched in negative terms and mandates that a person who cones upon any Immovable property by the license of the person in possession thereof, shall not be permitted to deny that such person had title to such possession at the tine when such license was given.
12. The underlying policy of Section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the tine of the settlement then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said section.
13. The principle of estoppel arising from the Contract of ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 63 of 84 RCA DJ NO. 10/2019 tenancy is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got and any probable defect in the title of his landlord. It is on account of such a contract of tenancy and as a result of the tenant's entry into possession on the admission of the landlord's title that the principle of estoppel is attracted.
14. Section 116 enumerates the principle of estoppel which is merely an extension of the principle that no person is allowed to approbate and reprobate at the same time. 15. As laid down by the Privy Council in Krishna Prasad Lal v. Barabani Coal Concern Ltd. MANU/PR/0072/1937, "It (Section 116) deals with one cardinal and simple estoppel and states it first as applicable between landlord and tenant and then as between licensor and licensee, a distinction which corresponds to that between the parties to an action for rent and the parties to an action for use and occupation".
Thus, a licensee cannot challenge the right or title of the Licensor in an action by the Licensor for his eviction. A licensee cannot be heard to say that the Licensor's right was good and valid to place him in the possession, and was not good enough to receive the possession back from him, when there was no change in the status and circumstances of the parties. Therefore, the Appellants/Defendants cannot challenge the right of the Plaintiff to recover possession, on the basis of challenge to his title. Between a licensor and licensee, the licensor has a better right for possession of the ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 64 of 84 RCA DJ NO. 10/2019 immovable property. Therefore, the Plaintiff had a better right to retain possession of the suit property amongst him and the Defendants, even though the aforesaid right is yet to be perfected by execution of a Conveyance Deed. It is not even case of the Appellants/Defendants that even if the Plaintiff's allotment was cancelled, any right has been created in their favour to seek the transfer of the rights of the Plaintiff or the aforesaid rights were assigned to someone else. The Defendants/Appellants have also raised the contentions that they have construction certain portion of the suit property, however the aforesaid contentions have not been proved by evidence.
6.4.22. The above-mentioned discussion is concluded in the following points hereinbelow:
i. The Plaintiff was the original allottee of the suit property, who has paid consideration amount. The Hon'ble High Court has directed the execution of Conveyance Deed in favour of the Plaintiff, in case if the Plaintiff succeeds in the suit and it is found that the Plaintiff had not sublet the property.
ii. The Defendants have come into possession of the suit property through the Plaintiff.
iii. The Defendants have failed to prove that the allotment of the Plaintiff was cancelled. The Defendants have failed to prove that the Plaintiff has left the suit property ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 65 of 84 RCA DJ NO. 10/2019 exclusively to them and left for village in the year 1976. The Defendants have failed to prove that they were entitled to remain in possession of the suit property by any authority beyond the permission of the Plaintiff.
iv. The water and electricity connections in the suit property were in the Plaintiff's name.
v. The Defendants did not produce any policy, relied upon by them, which permitted them to seek allotment of the suit property in their name.
vi. The Defendants have failed to prove that they have constructed the suit property.
vii. The Defendants have failed to prove that they have disputed or denied the title of the Plaintiff prior to the year 1997.
viii. Even if the Conveyance Deed is yet to be executed, the suit filed by the Plaintiff is maintainable for the prayers of possession under Article 64 of the Limitation Act, 1963 in view of the law laid does by the Hon'ble Supreme Court in Nair Service Society Ltd (supra) as the Plaintiff has proved his prior possession and dispossession by the Defendants in the year 1997, whereas the Defendants have not proved the title in the suit property.
________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 66 of 84 RCA DJ NO. 10/2019 Therefore, the Defendants have failed to prove their affirmative defence and on account of preponderance of probabilities, the Plaintiff is certainly entitled to the decree for possession of the suit property. The Issue No.4 & 5 are accordingly decided in favour of the Plaintiff.
6.5. Issue No.6: Whether Plaintiff is entitled for a decree of damages as claimed. If so at what rate and for what period? OPP 6.5.1. The onus to prove the Issue No.6 was upon the Plaintiff. The Court of Ld. Senior Civil Judge has held that the Plaintiff could not have sublet the premises in question and therefore was not entitled to damage. Though the Plaintiff could not have sublet the premises in question, however the deprivation of use of his property, beyond the period of permission granted by the Plaintiff, certainly results in some damages. Since the Respondents have not filed any cross-
objections against the aforesaid observations by the Court of Ld. Senior Civil Judge, therefore, this Court is not inclined to discuss or disturb the aforesaid conclusions on the Issue No.6.
7. Whether signing of the draft judgment by Successor of Ld. Senior Civil Judge suffers from any legal infirmity?
7.1. Though no oral arguments have been addressed on this aspect, however the judgment and decree in question have challenged in the grounds of appeal on this ground, therefore, this Court deems it appropriate to deal with this ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 67 of 84 RCA DJ NO. 10/2019 ground of challenge. One of the crucial aspects of the present matter is that the judgment was pronounced by Ld. Senior Civil Judge on 22.09.2022, however the aforesaid judgment was not signed on the same day. The facts emerging from the subsequent proceedings reveal that the Ld. Senior Civil Judge was placed under suspension, before the judgment could be signed. Subsequently the Ld. Successor of Ld. Senior Civil Judge signed the judgment.
7.2. The Ld. Successor Senior Civil Judge, prior to signing of judgment, afforded due opportunity to parties for addressing and suggesting the course of action in the matter and after hearing the parties passed an Order dated 28.11.2018, whereby it is held that the judgment delivered by Ld. Senior Civil Judge on 22.09.2016 was the final judgment and the draft contained in the Court files was to be treated as the final judgment. Thereafter the Ld Successor Senior Civil Judge signed the aforesaid draft as being the final judgment in the matter. The relevant part of the Order dated 28.11.2018, passed by Ld. Successor Senior Civil Judge is being reproduced hereinbelow:
"3. REASONS FOR ORDER 3.1 It is not disputed by the parties that vide order dt. 22.09.2016 Ld. Predecessor communicated/pronounced the Judgment and signed the daily order dt. 22.09.2016. As per this order, the suit of the plaintiff wad decreed.
3.2 I have perused the record. The draft Judgment running into 23 pages is on record.
________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 68 of 84 RCA DJ NO. 10/2019 3.3 Vide letter dt. 27.07.2017 Ld. Predecessor Ms. Sonali Gupta in compliance of letter no.11337/Gaz/D&SJ(W)/17 dt. 21.07.17 sent the present file to Hon'ble High Court of Delhi through Ld. District & Sessions Judge(West) in a sealed cover. Each and every page of this file was numbered. The draft Judgment running into 23 pages (printed on 23 leaves) is bearing serial number and page no. 157 to 201). There is no reason to believe that judicial file has been tempered with by anybody in any manner whatsoever.
3.4 The defendant has relied upon Judgment Phool Kumari (supra) Ld. Counsel for defendant pointed out para no. 9, 10, 11 and 12 of this Judgment. I have perused the entire text of this Judgment. In para no. 23 of the Judgment it was held that "The Hon'ble Supreme Court allowed the appeal, set aside the Judgment of the Second Division Bench and held that Judgment of the First Division Bench which was dictated in open court to the Court Master, though no signed, was a valid and effective Judgment." In para no. 24 of this Judgment it was held "It was observed that Judgment to be operative does not await signatures thereof by the court." In para no. 28 of this Judgment, it was held that Judgment pronounced by the deceased Judge, if remaining unsigned was valid, effective and operative as any other effective Judgment signed by a Judge.
3.5 In para no. 29 of this Judgment, it was held that "In order to lend authenticity to the unsigned Judgment. It is directed as under :
(a) The successor Judicial Officer shall put his initials on each of the pages of the Judgment and get the Court seal affixed on each of such page of the Judgment:
(b) He shall record a certificate on the last page of the Judgment under his signatures and date line of the date recording the certificate in the following terms:
________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 69 of 84 RCA DJ NO. 10/2019 Certified that the above Judgment was dictated and pronounced in open court by Shri Piar Chand Chauhan, Sub Judge 1 st Class, (since dead) on__"
(c) The decree sheets in terms of the Judgments shall be got prepared and shall be signed by the successor in office as provided for under Rule 8, Order 20 of the Code:
(d) Other zimni orders, documents and proceedings, which have remained unsigned, shall be signed by the successor in office for the purpose of procedural compliance to enable the completion of records for the purpose of consignment in the record room.
3.6 In para no. 30 of this Judgment, it was held " The carrying out of the above directions will apart from ensuring authenticity to the unsigned Judgments, would also facilitate the grant of certified copies to the parties either for the purpose of record or for the purpose of appeal/revision."
4. Accordingly in view of above, the draft Judgment is signed by me today (however, the actual date of pronouncement shall remain 22.09.2016 only) and the required certificate in terms of para no. 29(b) of the Judgment Phool Kumari (supra) is also appended to the last page of the Judgment.
5. The Reader is directed to prepare decree in terms of the Judgment.
6. File be consigned to record room after due compliance."
In terms of the above-referred Order dated 28.11.2018, the Ld. Successor Senior Civil Judge attested and signed draft of the Judgment present in the case files.
________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 70 of 84 RCA DJ NO. 10/2019 7.3. The aspect and effect of a judgment pronounced and not signed by a judge was discussed by Hon'ble Full Bench of Hon'ble Supreme Court of India in, "Surendra Singh and Ors. vs. The State of Uttar Pradesh (16.11.1953):
1953INSC75", and the relevant observations of the Hon'ble Supreme Court are being reproduced hereinbelow:
"10. In our opinion, a judgment within the meaning of these sections is the final decision of the court intimated to the parties and to the world at large by formal "pronouncement" or "delivery" in open court. It is a judicial act which must be performed in a judicial way. Small regularities in the manner of pronouncement or the mode of delivery do not matter but the substance of the thing must be there: that can neither be blurred nor left to inference and conjecture nor can it be vague. All the rest - the manner in which it is to be recorded, the way in which it is to be authenticated, the signing and the sealing, all the rules designed to secure certainty about its content and matter - can be cured; but not the hard core, namely the formal intimation of the decision and its contents formally declared in a judicial way in open court. The exact war in which this is done does not matter. In some courts the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed after giving notice to the parties and laying the draft on the table for a given number of days for inspection.
11. An important point therefore arises. It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the court as it is at the time of pronouncement. We lay on stress on the mode of manner of delivery, as that is not of the essence, except to say that it must be done in a judicial way in open court. But however it is done it must be an expression of the mind of the court at the time of delivery. We say this because that is the first ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 71 of 84 RCA DJ NO. 10/2019 judicial act touching the judgment which the court performs after the hearing. Everything else up till then is done out of court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion. That is not their judgment. They may write and exchange drafts. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in open court with the intention of making it the operative decision of the court. That is what constitutes the "judgment".
12. Now up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of locus petitioner, and indeed last minute alterations sometimes do occur. Therefore, however much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment the court. Only then does it crystallise into a full fledged judgment and become operative. It follows that the Judges who "delivers" the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the court at the moment of delivered so that he can, if necessary, stop delivered and say that he has changed his mind. There is no need for him to be physically present in court but he must be in existence as a member of the court and be in a position to stop delivery and effect an alternation should there be any last minute change of mind on his part. If he hands in a draft and signs it and indicates that he intends that to be the final expository of his views it can be assumed that those are still his views at the moment of delivery if he is alive and in a position to change his mind but takes no steps to arrest delivery. But one cannot assume that he would not have changed his mind if he is no longer in a position to do so. A Judge's responsibility is heavy and when a man's life and liberty hang upon ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 72 of 84 RCA DJ NO. 10/2019 his decision nothing can be left to chance or doubt or conjecture; also, a question of public policy is involved. As we have indicated, it is frequently the practice to send a draft, sometimes a signed draft, to a brother Judge who also heard the case. This may be merely for his information, or for consideration and criticism. The mere signing of the draft does not necessary indicate a closed mind. We feel it would be against public policy to leave the door open for an investigation whether a draft sent by a Judge was intended to embody his final and unalterable opinion or was only intended to be a tentative draft sent with an unwritten understanding that he is free to change his mind should fresh light dawn upon him before the delivery of judgment.
13. Views similar to this were expressed by a Full Bench of the Calcutta High Court consisting of nine Judges in the year 1867 in Mahomed Akil v. Asadunnissa Bibee 9 W.R. 1. In that case, three of the seven Judges who constituted the Bench handed in signed judgments to the Registrar of the court. Before the judgment could be delivered, two of them retired and one died. A Full Bench of nine Judges was convened to consider whether the drafts of those three Judges could be accepted as judgments of the court. Seton- Kerr J., who had heard the case along with them, said :-
"Certainly as far as I can recollect, they appeared to have fully made up their minds on a subject which they had very seriously considered, and on which they had abundant opportunities of forming a final determination. I am, however, not prepared to say that they might not on further consideration have changed their opinions..." (p. 13).
14. Despite this, all nine Judges were unanimous in holding that those three opinion could not be regarded as judgments in the formal sense of the term. In our opinion, Jackson J. expressed the law right in these words :-
"I have however always understood that it was ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 73 of 84 RCA DJ NO. 10/2019 necessary in strict practice that judgments should be delivered and pronounced in open court. Clearly, we are met today for the first and only time to give judgment in these appeals; and it appears to me, beyond question, that Judges who have died or have retired from the court cannot join in the judgment which is to be delivered today, and express their dissent from it." (p. 5).
15. Peacock C.J. pointed out at page 30 :-
"The mere arguments and expressions of opinion of individual Judges, who compose a court, are not judgments. A judgment in the eye of the law is the final decision of the whole court. It is not because there are nine Judges that there are nine judgments. When each of the several Judges of whom a simple court is composed separately expresses his opinion when they are all assembled, there is still but one judgment, which is the foundation for one decree. If it were otherwise, and if each of the memoranda sent in on the present occasion were as judgment, there would be nine judgments in one case, some deciding one thing and some another, and each Judge would have to review his own judgment separately, if a review should be applied for."
16. We do not agree with everything which fell from the learned Chief Justice and the other judges in that case but, in our opinion, the passages given above embody the true rule and succinctly explain the reasons for it.
17. As soon as the judgment is delivered, that becomes the operative pronouncement of the court. The law then provides for the manner in which it is to be authenticated and made certain. The rules regarding this differ but they do not form the essence of the matter and if there is irregularity in carrying them out it is curable. Thus, if a judgment happens not to be signed and is inadvertently acted on and executed, the proceedings consequent on it would be valid ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 74 of 84 RCA DJ NO. 10/2019 because of the judgment, if it can be shown to have been validly delivered, would stand good despite defects in the mode of its subsequent authentication.
18. After the judgment has been delivered provision is made for review. One provision is that it can be freely altered or amended or even changed completely without further formality, except notice to the parties and a rehearing on the point of change should that be necessary, provided it has not been signed. Another is that after signature a review properly so called would lie in civil cases but none in criminal; but the review, when it lies, is only permitted on very narrow grounds. But in this case the mere fact that a Judge is dead and so cannot review his judgment does not affect the validity of the judgment which has already been delivered and has become effective. For this reason, there is a distinction between judgments which have not been delivered and so have not become operative and those which have. In the former case, the alteration is out of court. It is not a judicial act. It is only part of a process of reaching a final conclusion; also there is no formal public declaration of the Judges' mind in open court and consequently there is no "judgment" which can be acted upon. But after delivery the alteration cannot be made without notice to the parties and the proceedings must take place in open court, and if there is no alteration there is something which is final and conclusive and which can at once be acted upon. The difference is this. In the one case, one cannot know, and it would be against public policy to enquire, whether the draft of a judgment is the final conclusion of the Judge or is only a tentative opinion subject to alteration and change. In the second case, the Judge has publicly declared his mind and cannot therefore change it without notice to the parties and without hearing them afresh when that is necessary; and if there is no change the judgment continues in force. By change we mean an alteration of the decision and not merely the addition or subtraction of part of the reasoning. ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 75 of 84 RCA DJ NO. 10/2019
19. Our conclusion is that the judgment which Kidwai J. purported to deliver on 5th January, 1953, was not a valid judgment because the other member of the Bench died before it could be delivered."
Though the aforesaid observations have been made in a criminal matter, however the same are relevant for understanding the effect of pronouncement or delivery of judgment, without it being signed and how it operates. It has been held by the Hon'ble Supreme Court in terms of the above-referred observations that as soon as the judgment is delivered, it becomes the operative pronouncement of the court and the law then provides for the manner in which it is to be authenticated and made certain and the rules regarding this may differ, but they do not form the essence of the matter and if there is irregularity in carrying them out, the same is curable. It is held that if a judgment happens not to be signed and is inadvertently acted on and executed, the proceedings consequent on it would be valid because of the judgment, if it can be shown to have been validly delivered, it would stand good despite defects in the mode of its subsequent authentication. In this case, the judgment was reserved by bench of two Hon'ble Judges and before the judgment could be pronounced/delivered, one of the Hon'ble Judges was transferred, who has subsequently authored the judgment and forwarded the draft to the other Hon'ble Judge. However, before the judgment could be delivered or pronounced, the author of the Judgment unfortunately passed away and the judgment was pronounced by the other Hon'ble Judge. The Hon'ble Supreme Court set aside the ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 76 of 84 RCA DJ NO. 10/2019 judgment on the ground that one of the member of Bench had died before the delivery/pronouncement of the Judgment.
7.4. The Hon'ble Supreme Court in the aforesaid judgment has followed the principles laid by the Judicial Committee in "Firm Gokal Chand-Jagan Nath vs. Firm Nand Ram Das-Atma Ram (21.10.1938 - PRIVY COUNCIL):
MANU/PR/0059/1938: AIR 1938PC292." The aforesaid case was a civil case and relevant discussion pertaining to issue at hand is being reproduced hereinbelow:
"7. A further point was raised by the appellants. They urged that the judgment of the High Court appealed from was not a valid judgment because it failed to comply with Order 41, Rule 31, Civil P.C. The relevant facts on this issue are that the hearing in the High Court was before two Judges, Harrison and Agha Haider JJ., and was actually delivered by the former Judge, the latter agreeing. The judgment was delivered on 22nd February 1933, but Harrison J. went on leave before signing the judgment, which was signed by Agha Haider J., the Deputy Registrar appending a note that Harrison J. had gone on leave before signing the judgment he delivered. Order 41, Rule 31 requires that the judgment of the Appellate Court shall be in writing and shall state various matters, and "shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
8. The Rule does not say that if its requirements are not complied with the judgment shall be a nullity. So startling a result would need clear and precise words. Indeed the Rule does not even state any ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 77 of 84 RCA DJ NO. 10/2019 definite time in which it is to be fulfilled. The time is left to be defined by what is reasonable. The Rule from its very nature is not intended to affect the rights of parties to a judgment. It is intended to secure certainty in the ascertainment of what the judgment was. It is a rule which Judges are required to comply with for that object. No doubt in practice Judges do so comply, as it is their duty to do. But accidents may happen. A Judge may die after giving judgment but before he has had a reasonable opportunity to sign it. The Court must have inherent jurisdiction to supply such a defect. The case of a Judge who has gone on leave before signing the judgment may call for more comment, but even so the convenience of the Court and the interest of litigants must prevail. The defect is merely an irregularity.
But in truth the difficulty is disposed of by Sections 99 and 108, Civil P.C. Section 99 provides that no decree shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court. That Section comes in the part dealing with appeals from original decrees. But Section 108 applies the same provision to appeals from appellate decrees and it is always in the discretion of the Board to apply the principle on appeal to His Majesty in Council. In their Lordships' judgment the defect here was an irregularity not affecting the merits of the case or the jurisdiction of the Court, and is no ground for setting aside the decree.
9. Various cases on similar irregularities which have come before the Courts in India have been cited. Their Lordships do not find anything in these authorities to affect their decision here. Their Lordships are of opinion that the appeal fails and should be dismissed with costs. They will humbly ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 78 of 84 RCA DJ NO. 10/2019 so advise His Majesty."
The Judgment in the above-mentioned case was pronounced and the Hon'ble Judge proceeded on leave, before the same could be signed. The same was held to be a curable defect and the judgment was held to be a valid judgment, even though if it was not signed by the Hon'ble Judge, however was signed by the Deputy Registrar subsequently after the Hon'ble Judge proceeded on leave.
7.5. The afore-mentioned proposition of law and the ratio of the abovementioned cases was followed by the Hon'ble Supreme Court of India in, "Iqbal Ismail Sodawala vs. State of Maharashtra and Ors. (13.08.1974) : 1974 INSC 143", wherein it has been held that non-compliance with the procedural requirement in the matter of signing of the judgment was merely an irregularity, which could be cured. It was held in the aforesaid matter that the failure of the learned Sessions Judge in not appending his signature to the judgment at the time it was pronounced because of the judgment having not till then been transcribed was a procedural irregularity which would not vitiate the conviction of the accused (para 12 and 13 of the judgment).
7.6. Therefore, if a Judgment is pronounced and the same is not signed or even some part of it remains to be transcribed, the same remains a valid judgment, which can-not be altered by the Court pronouncing the Judgment. There is no dispute that ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 79 of 84 RCA DJ NO. 10/2019 the judgment in question was pronounced by the Ld. Senior Civil Judge on 22.09.2016. The separate Order of Pronouncement was signed on 22.09.2016 and in terms of the same, the suit was decreed. The Order dated 22.09.2016 is being reproduced hereinbelow:
"Suit No.7706/1622.09.2016 Present: Ld. Proxy counsel for the plaintiff.
Vide separate order announced in the open court, suit is decreed. Decree sheet be prepared accordingly. File be consigned to record room.
sd/-
SCJ/RC (West)/Delhi 22.09.2016"
In terms of the above-mentioned Order, there is no uncertainty about the suit being decreed. The draft Judgment was found by the Ld. Successor Senior Civil Judge in the case files. However, this Court can-not ignore the fact that Order dated 22.09.2016 records that the suit is decreed, whereas in terms of the draft judgment available in the case files, subsequently signed as final judgment, the suit was decreed only for prayer for possession and the prayer of damages was declined and thus the suit was only partly decreed in the draft judgment. Further the aforesaid draft was a print out on rough sheets and para 28 of the aforesaid judgment remains to be completed, as the name/citation of ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 80 of 84 RCA DJ NO. 10/2019 judgments was missing in the same. It is required to be assessed as to whether the judgment in question should be remanded back by taking into consideration the aforesaid shortcomings. The parties have reached a verdict after a trial of 17 years. The question about the draft judgment itself took further time of two years to get decided. The present appeal has been pending for the period of last seven years. Therefore, even though, if there are some rough surfaces, this Court has to assess the same as to whether the same results in any such injustice, for which the parties should be again relegated to the Ld. Trial Court.
7.7. In this situation, this Court deems it appropriate to refer to Section 99 of the Code of Civil Procedure, 1908 and the same is being reproduced hereinbelow:
"99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction: No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder [or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court: Provided that nothing in this section shall apply to non-joinder of a necessary party."
The aforesaid provision provides that no decree shall be reversed or modified if error or irregularity of any proceedings in the suit does not affect the merits of the case.
7.8. Besides the aforesaid shortcomings, if the discussion in the draft judgment is read, it does not leave any manner of doubt ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 81 of 84 RCA DJ NO. 10/2019 that the aforesaid discussion is the final view of the Court on the facts and evidence of the matter. In so far as the printout of the draft judgment on rough sheets is concerned, the extraordinary situation of suspension has created disability to take a further printout on judicial papers. The missing part in para 28 of the impugned judgment is also not substantive, as the names and citations of the judgments were missing, however the contentions to be raised in terms of the missing judgments were duly considered and dealt in the impugned judgment in para 29 and para 30. Further, in so far as the issue of the suit being decreed partly is concerned, the same can also be considered to be a typographical slip out in the Order, as the principal prayer in the suit was of possession, which in any case was decreed. At best, the aforesaid aspect needs to be agitated by the Plaintiff, however the Plaintiff has supported the judgment and the aforesaid aspect does not create any injustice against the Defendants as the same is in favour of the Defendants.
7.9. An Appellant Court has to examine that the judgment rendered by the Court below is a probable and possible view on the facts and evidence of the matter. However, this Court intends to record here that after considering the entire material on record, this Court does not have any doubt in holding that on the basis of facts and evidence in the matter, the decree for possession against the Defendants in the suit is the only possible, unavoidable and inevitable consequence and preponderance of probabilities does not point out in any ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 82 of 84 RCA DJ NO. 10/2019 other opposite or alternative direction. Even if this Court has disagreement with the findings in the Issue No.6, the aforesaid findings are to be assailed by the Plaintiff and the Appellants/Defendants cannot be aggrieved of the same.
7.10. The incomplete aspects of the impugned judgment could not be completed due to an extraordinary disability, arisen on account of suspension of Ld. Presiding Officer. Though certain allegations have been made in ground (C) of the memo of appeal, however it is not the case of the Appellants that aforesaid allegations pertains to the case at hand. This Court in terms of the aforesaid allegations cannot run unnecessary de-facto trial against the Ld. Presiding Officer, when cause of suspension does not relate to the case in question. This Court can only ascertain and examine the validity of the findings of the impugned judgment as per law, which have been discussed in detail in the para No.6.
7.11.Therefore, this Court is of the view that the incomplete aspects of the judgment in question, as discussed hereinabove, including the judgment not being signed, in the facts and circumstances of the case should be termed to be a curable irregularity, which did not occasion any failure of justice, for which the judgment or decree in question should be set aside. Thus, the process of signing of judgment by Ld. Successor Senior Civil Judge does not suffer from any infirmity in law.
________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 83 of 84 RCA DJ NO. 10/2019
8. Final Decision/Conclusion:
Accordingly, in terms of the discussion/reasons stated hereinabove, the present appeal is dismissed and the impugned judgment and decree dated 22.09.2016, passed by Ld. SCJ/RC, West, Tis Hazari Courts, Delhi in CS SCJ No. 7706/2016, is affirmed. The Decree sheet be drawn accordingly. The TCR is directed to be sent back along with a copy of this judgment. The Appeal files be consigned to the Digitally record room after due compliance. signed by ANIL CHANDHEL ANIL CHANDHEL Date:
2025.12.01 Announced in the open Court (ANIL CHANDHEL) 17:35:28 +0530 today on 1st of December, 2025 DISTRICT JUDGE-04 WEST DISTRICT THC/DELHI/01.12.2025 ________________________________________________________________ Chhote Lal Vs. Khubi Ram (since deceased) Page No. 84 of 84 RCA DJ NO. 10/2019