Delhi District Court
Shri Kulwant Singh vs Shri O.P. Wadhwa (Deceased) on 26 March, 2015
IN THE COURT OF CIVIL JUDGE-11, CENTRAL DISTRICT,
TIS HAZARI COURTS: DELHI
Civil Suit No. 403/2014
In the matter of
Shri Kulwant Singh
Son of late Shri Darbara Singh,
R/o 4A/61, Old Rajinder Nagar,
New Delhi -110060
.....Plaintiff
Vs.
1. Shri O.P. Wadhwa (deceased)
Through his LRs
(a) Shri Manoj Wadhwa
son of late Shri O.P. Wadhwa,
R/o RP-18, Maurya Enclave,
Pitampura, Delhi-110088
(b) Smt. Chandna Chandhok
Wife of Shri Praveen Chandhok
(daughter of late Shri O.P. Wadhwa),
R/o House NO. 99, First Floor,
Sector 15, Part II, Gurgaon-122001 (Haryana).
2. The Commissioner of Police,
Delhi Police,
MSO Building, I.P. Estate,
New delhi.
3. The Station House Officer,
P.S Rajinder Nagar,
New Delhi-110060.
4. Shri Om Parkash, S.I.
Delhi Police, P.S. Rajinder Nagar,
New Delhi-110060.
.....Defendants
Date of institution of the Suit : 29.10.2003
Date on which the judgment was reserved : 28.02.2015
Date of decision : 26.03.2015
Kulwant Singh Vs. O.P. Wadhwa 1 of 8
SUIT FOR RECOVERY OF POSSESSION AND FOR INJUNCTION
JUDGMENT
Story of the plaintiff is simple which is easily reflected from the following paragraphs of the plaint:-
"2. That the plaintiff has been a tenant in a portion of the said properly falling to the share of Shri Nath Prakash Wadhwa and in occupation and possession of some other portions of the said property, and he continues to be in occupation and possession of substantial portion of the said property with a change of his status with regard to half of the said property.
3. That Shri Nath Prakash Wadhwa initiated eviction proceedings against the plaintiff, in which the plaintiff lost and eviction order was passed against him by the court of Shri B.B. Chaudhary, then Additional Rent Controller, Delhi and confirmed by the appellate courts, whereafter settlement took place between the plaintiff and Shri Nath Prakash Wadhwa, as a result of which Shri Nath Prakash Wadhwa sold and transferred his half share in the aforesaid property to the wife of the plaintiff Smt. Jagjit Kaur on 1 st September, 1989, and he received the entire amount of consideration from the wife of the plaintiff. The wife of the plaintiff further transferred the said half portion of the property to the plaintiff on 7th May, 1990 and executed various documents of sale in his favour, such as Agreement to sell, Power of attorney, Receipt, Will etc..............
4. That the plaintiff has been in occupation and Kulwant Singh Vs. O.P. Wadhwa 2 of 8 possession of the portion shown yellow in the site plan and forming part of the aforesaid property as its owner by virtue of its sale and transfer by Shri Nath Prakash Wadhwa to his wife on 1st September, 1989 and then sale and transfer of the said property by his wife to him on 7th May, 1990, and in physical occupation and possession of the portions shown red and queen in the site plan otherwise for the last about more than 20 years.
8. That the plaintiff respectfully submits that he has become owner of the portions shown red and green in the site plan by virtue of his hostile, adverse possession for the last about more than 20 years, and right of defendant no. 1, if any available to him in the said property, stands extinguished after determination of the period limited to recover the same, as per provisions of Section 27 of the Limitation Act, 1963, and this also includes the portion from which the plaintiff has been illegally dispossessed by defendant no. 1 in collusion with the local police".
2. From the above extracted paragraph 2 it becomes clear that the plaintiff has claimed the tenancy only in respect of portion of the property falling in the share of Shri Nath Prakash Wadhwa. The other portions of the property indicated in the said paragraph has been shown by the plaintiff only with expression "in occupation and possession". Clearly for other portions plaintiff has not claimed any tenancy. The plaintiff however has not indicated as to how he came into occupation and possession of the said other portions of the property.
3. From paragraph 3 it becomes clear that the plaintiff is claiming that the share of Shri Nath Prakash Wadhwa was ultimately purchased by him. Through paragraph 4 the plaintiff has indicated the said share of property as his own ownership covered under yellow portion of the site plan. In such circumstances, a combined reading of Kulwant Singh Vs. O.P. Wadhwa 3 of 8 paragraph 2, 3 and 4 makes it clear that yellow portion was the rented portion.
4. A further reading of paragraph 4 and paragraph 8 shows that the plaintiff wants to claim an adverse possession in respect of red and green portion on the ground that he was having possession of the said portion for more than 20 years.
5. A bare perusal of the prayer clauses of the plaint shows that prayer of possession and injunction relate either to red portion or green portion of the site plan. Consequently, the entire discussion should be confined to the claim related to red and green portion.
6. In the above facts and circumstances, the crucial point for determination would be the establishment of the factum of possession of red and green portions and also establishment of factum of dispossession from the red portion.
7. I will indicate the settled issues framed in the present case later on but to maintain the continuity it is pertinent to note that the plaintiff examined himself as PW-1 and closed the evidence whereas the defendant O.P. Wadhwa had examined himself as DW-1 and his LRs did not led any further evidence. No evidence was led by defendant no. 2, 3 and 4.
8. It is now to be seen as to whether the plaintiff has been able to establish the factum of settled possession and the factum of dispossession or not. The affidavit of plaintiff is a mere reiteration of the averments made in the plaint. Several photocopies in respect of sale purchase were marked by the plaintiff but I am of the opinion that they have no relevance as we have only to discuss the possession in respect of red and green portions and not in respect of yellow portion to which the so called documents are related. In the affidavit however the plaintiff has relied upon a copy of application moved under Order 1 Rule 10 read with Section 151 CPC in other civil suit no. 2374/1981 and has claimed that in the said application the defendant herein had admitted the possession of plaintiff regarding other portions of the property. A copy of the said application was marked through the plaintiff evidence as Mark-F. No other Kulwant Singh Vs. O.P. Wadhwa 4 of 8 document has been filed by the plaintiff to support his claim about possession of other portions of the property.
9. Now the question is as to whether the court can rely upon the document Mark- F or not. A document can either be proved by producing the original or by leading secondary evidence. Since original application has not been produced by the plaintiff, we have to see whether the photocopy filed by the plaintiff falls within the ambit of secondary evidence or not. In paragraph 9 of his affidavit, the plaintiff has used the expressions "filed" and "in suit No.". This clearly demonstrate that the said application was a part of judicial record of the said suit. A judicial record is a public document by virtue of Section 74 of the Indian Evidence Act of which certified copies may be obtained under Section 76 and may be produced in proof of the content thereof by virtue of Section 77. It is Section 65 of Indian Evidence Act which allows secondary evidence to be led on the satisfaction of conditions mentioned therein. Sub Section (e) talks about public document but Section 65 subsequently prescribes pre conditions in respect of secondary evidence for public document in following manner:-
"In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible."
10. The above clearly shows that though in terms of Section 63 there are five types of secondary evidence, due to the bar created by the Section 65 the only admissible secondary evidence is certified copy so far as public documents are concerned.
11. In the present case, since the plaintiff has only filed a normal photocopy of the document i.e. Mark-F, the same cannot be treated as secondary evidence and therefore it falls within the ambit of inherent inadmissibility. Since a document can only be proved either by primary evidence or by secondary evidence and the document Mark-F is neither primary nor secondary evidence, the court cannot read the said document in evidence irrespective of any objection being taken or not taken by opposite side.
Kulwant Singh Vs. O.P. Wadhwa 5 of 8
12. Now remains the self serving claim of the plaintiff that he was in possession of other portions for last 20 years. This self serving claim cannot justify anything in the absence of any supporting material more so when his main document Mark-F has been discarded from the evidence. Further more the plaintiff has not elaborated as to how he came into occupation and possession of other portions of the property if he was legally inducted as a tenant in some portion of the property falling within the share of Shri Nath Prakash Wadhwa. However in paragraph 7 of his affidavit he has claimed that he had been running business of photography in green portion and had been using the red portion as a store. He further claimed that water meter and air conditioner were also installed therein. I consider that even these claims of the plaintiff do not help him. A water meter, sewer line and air conditioner installed in a wall can never be proof of possession of the immovable property. However, we are not even required to consider these claims as the plaintiff has not supported his claim by any documentary proof and therefore there is nothing on record to show that there are water meter, sewer line and air conditioner in existence or what are their exact location or situation. A self serving statement cannot be accepted in evidence of possession of immovable property.
13. Clearly in respect of possession regarding other portions of the property the plaintiff has been very vague about the details thereof and therefore the same cannot fall under the category of specific pleading which is a pre requisite to maintain any type of claim. Pertinently, from a reading of plaint and affidavit one thing is very clear that the expression "other portions of the said property" is referable to the red and green portions of the site plan.
14. Since the plaintiff has failed to prove the factum of established possession in respect of red and/or green portions of the property, there cannot be any question of his dispossession from the red portion or continuous enjoyment of red and green portion.
15. Now we can deal with the issues in the light of above discussion. The ld.
Kulwant Singh Vs. O.P. Wadhwa 6 of 8 Predecessor had framed following issues:-
1. Whether the plaintiff is entitled to decree of possession, as prayed for? OPP.
2. Whether the plaintiff is entitled to decree of perpetual injunction, as prayed for? OPP.
3. Whether the plaintiff is entitled to decree of damages, as prayed for ? OPP.
4. Whether the suit of the plaintiff is not maintainable U/S 6 of Specific Relief Act? OPD.1
5. Whether the suit of the plaintiff has not been properly valued for the purposes of court fee & jurisdiction? OPD.1
6. Whether the suit of the plaintiff is barred U/s 138 and 140 of Delhi Police Act? OPD.2, 3 & 4.
7. Whether the suit of the plaintiff is bad for non-
joinder of necessary parties i.e. Union of India and Delhi Government? OPD.2, 3 & 4.
8. Relief.
16. Both the sides have been heard. I have also perused the record.
17. Since plaintiff is held to have not proved the established possession, he cannot be entitled for any relief regarding possession or enjoyment of property. As such, the issues no.1 and 2 are decided against the plaintiff and in favour of defendants.
18. So far as issue no.3 is concerned, the same relates to the damages. There is no pleading in the plaint about the claim of damages and no evidence has been led by the plaintiff regarding the said relief. Therefore, the issue no.3 is decided against the plaintiff and in favour of defendants.
19. Since the plaintiff has been held to be not in possession of the relevant portion Kulwant Singh Vs. O.P. Wadhwa 7 of 8 of the property, he cannot maintain a suit Under Section 6 of Specific Relief Act. As such, issue no.4 is decided against the plaintiff and in favour of defendants.
20. So far as issue no.5 is concerned, there is no explanation from the defendant side as to what was the under valuation of property or as to what should have been the exact valuation. Simply a vague claim has been made by defendant no.1 that the market value of the suit property was more than rupees one lakh. Unfortunately for the defendant, even Rs.1,00,001/- is also a higher amount then rupees one lakh. The issue no.5 is decided in favour of plaintiff and against the defendants.
21. So far as issue no.6 is concerned, I am of the view that the alleged act of police officials could not fall within the ambit of official duty and therefore they cannot be protected by Delhi Police Act 1978. As such, issue no.6 is decided in favour of plaintiff.
22. No reason has been provided as to why Union of India and Delhi Government should have been made a party to the present proceedings. Therefore, issue no.7 is also decided in favour of plaintiff.
23. In view of the above discussion, it is held that plaintiff is not entitled for any relief.
24. Naturally the absent defendants shall be deemed to be governed by Order 9 Rule 11 CPC and the present decision shall also apply to them.
25. The suit is dismissed with cost of Rs.10,000/- to be paid by the plaintiff to the defendant no.1. Decree be prepared accordingly.
Announced in the open (Rakesh Kumar Singh) court today on 26.03.2015 CJ-11/CENTRAL/DELHI Kulwant Singh Vs. O.P. Wadhwa 8 of 8