Delhi District Court
Mr. Prashant Narula vs Municipal Corporation Of Delhi on 5 December, 2013
IN THE COURT OF SHRI. ASHISH AGGARWAL, ADDITIONAL SENIOR CIVIL
JUDGECUMJUDGE, SMALL CAUSES COURTCUMGUARDIAN JUDGE,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI.
SUIT NO.117/08/05.
Unique ID no.02404C0037332008.
1. Mr. Prashant Narula
S/o Mr. B. D. Narula
R/o 642A, Janakpuri,
New Delhi.
2. Mr. Jai Parkash
S/o Late Mr. Nain Singh
R/o H. No.27, Village Bharola,
Delhi.
....Plaintiffs
Versus
1. Municipal Corporation of Delhi
Through Commissioner,
Town Hall, Delhi.
2. Adarsh Nagar Green Residents Welfare Association (Regd.)
D89, Lord Krishna Road,
Adarsh Nagar, Delhi110033.
....Defendants
Date of institution : 07.03.2005
Date on which reserved for judgment : 06.11.2013
Date of decision : 05.12.2013
Suit for Declaration and Permanent Injunction
Judgment
1. This judgment shall decide the suit filed by the plaintiffs.
Description of suit property
2. The property in dispute has been described in the plaint as land comprised
in Khasra nos. 262, 258 and 217/4, Village Bharola, Delhi. The said land is
adjoining Subhash Park. It is bounded as under:
1/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05
North: Nehru Road.
South: Netaji Road.
East: Subhash Park.
West: MCD School.
The suit property is depicted in red colour in the site plan filed with the
plaint (which has been subsequently identified as Ex.PW1/4). The said
property is hereinafter referred to as "the suit property".
Parties to the suit
3. The plaintiff no.1 is one Mr. Prashant Narula whereas the plaintiff no.2 is
one Mr. Jai Parkash. According to the plaintiffs, plaintiff no.2 is the owner of
the suit property and has entered into an agreement to sell the suit property
to the plaintiff no.1.
4. The defendant no.1 is the Municipal Corporation of Delhi (hereinafter
referred to as "MCD") whereas the defendant no.2 is a residents' welfare
association. Initially the suit had been filed only against the defendant no.1.
Defendant no.2 was subsequently impleaded as a defendant by directions
of the Hon'ble High Court of Delhi dated 05.10.2012 whereby it was held
that the association is a proper party in the suit.
Version of the plaintiffs
5. The plaintiffs have stated in the plaint that the plaintiff no.2 is the owner of
the suit property and has executed an agreement to sell dated 04.12.1998 for
sale of the suit property to the plaintiff no.1.
6. The plaintiffs have learnt that the defendant no.1 sometimes allows some
persons to use the suit property for holding marriages although the
defendant no.1 has no right over the suit property and the suit property is
owned by the plaintiff no.2.
7. The plaintiffs served a notice dated 07.12.2004 upon the defendant no.1 to
not allow any person to use the said plot. The defendant no.1 did not reply
to the notice and instead tried to raise a boundary wall over the suit
property.
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8. By resolution dated 14.02.80, the defendant had resolved that certain sites
may be acquired. The suit property has however not been acquired. The
defendant has no right to use the suit property.
9. On the basis of these averments, the plaintiffs have filed the present suit
praying for a decree of declaration holding that the defendant no.1 has no
right or interest in the suit property. The plaintiffs have also prayed for
permanent injunction to restrain the defendant no.1 from raising
construction on the suit property.
Version of defendant no.1
10.The defendant no.1 has filed its written statement. It is pleaded in the
written statement that the suit is liable to be dismissed since the plaint does
not specifically describe the location of the suit property. The defendant no.
1 disputed the correctness of the site plan of the plaintiffs. It is also stated
that the plaintiffs are trying to grab the property of the defendant no.1.
According to the defendant no.1, the plaintiffs have concealed material
facts. It is also pleaded that the suit is barred by provisions of Delhi
Municipal Corporation Act, the suit is not properly valued, and the Court
does not have jurisdiction to entertain the suit. It is further stated that the
suit property had been donated by the colonizer to Municipal Corporation
of Delhi. It is also stated that earlier Municipal Corporation of Delhi was
running a school in the suit property and currently an Ayurvedic dispensary
is running from the said property.
11.Based on the aforesaid written statement, issues were framed by order
dated 09.12.2005. Evidence was led by the parties. Final arguments were
heard. The case was fixed for pronouncement of judgment. At that stage,
the Ld. Predecessor of the Court noted that there is a dispute regarding
identity of the suit property. The Court deemed it fit to appoint a local
commissioner to resolve the controversy. By order dated 07.11.2009, a local
commissioner was appointed and the decision of the case was deferred.
12.The local commissioner submitted his report. The defendant then realized
that the property which was being referred to by the plaintiff was different
from the one that was being defended by the defendant. The defendant no.
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1 filed an application under Order 6 Rule 17 of Code of Civil Procedure for
amendment of its written statement. The application was allowed by order
dated 06.01.2010. The amended written statement of the defendant no.1
thus came on record. In light of the above, the original written statement
filed by the defendant no.1 is not relevant for deciding the suit and it is the
amended written statement that has to be considered.
13.In the amended written statement, the defendant no.1 stated that the suit is
liable to be dismissed under Order 7 Rule 3 of Code of Civil Procedure since
the site plan of the plaintiff is misleading and does not specify the location
of the suit property. The defendant no.1 averred that the plaintiffs are trying
to grab the property of the defendant no.1 and that the plaintiffs have
concealed material facts. It is urged that the suit is barred by Sections 477
and 478 of the Delhi Municipal Corporation Act. The defendant no.1 has
also pleaded that the suit has not been properly valued for the purpose of
court fees and jurisdiction. It is also stated that the suit is without any cause
of action.
14.The defendant no.1 further stated that the suit property is in possession of
the defendant no.1 and is being maintained as a park. It is also stated that
there are two rooms constructed on the suit property besides a urinal. It is
also stated in the written statement that there are interlocking tiles on the
remaining portion of the suit property and that there is no grass on the said
land. It is further stated that the defendant no.1 has been booking the suit
property for the purpose of marriages and other functions. It is further
stated by the defendant no.1 that the property is virtually in possession of
the defendant no.1 since a long time. The defendant no.1 denied the receipt
of notice dated 07.12.2004. The defendant no.1 asserted its right to raise a
boundary wall on the suit property.
Version of defendant no.2
15.Defendant no.2 filed its written statement. Defendant no.2 stated in its
written statement that the suit has not been properly valued and that the
suit is not maintainable. It is further stated in the written statement that the
suit property belongs to the Government and is in exclusive possession of
4/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05
horticulture department of Municipal Corporation of Delhi for the last
more than forty years. It is stated that the suit property has been used as a
park. It is further stated that the suit property is being used for holding
religious events. It is further stated that the plaintiffs have no right in the
suit property.
Issues
16.By order dated 09.12.2005 passed by the Ld. Predecessor of the Court,
issues were framed as follows:
1. Whether the plaintiff is entitled to the relief of declaration as
prayed for? OPP.
2. Whether the plaintiff is entitled to the relief of permanent
injunction as prayed for? OPP.
3. Whether the plaintiff has valued his suit correctly for the purpose
of court fees and jurisdiction? (Onus on both)
4. Whether the plaintiff no.1 has no locus standi to file or institute
the present suit? OPD.
5. Whether the suit of the plaintiff is barred under Sections 477/478
of Delhi Municipal Corporation Act? OPD.
6. Whether the suit of the plaintiff is not maintainable in view of
Order 7 Rule 3 of Code of Civil Procedure as stated in para 1 of the
preliminary objections of the written statement of MCD? OPD.
7. Relief.
17.After receiving report of the local commissioner and consequent
amendment of written statement of defendant no.1, issues were not
amended. By order dated 01.09.2012, the Ld. Predecessor of the Court
noted that the amended written statement does not raise any new issue.
Hence, issues remained the same. The issues remained unaffected even by
impleadment of defendant no.2 as a party to the suit. It is however relevant
to note that by order dated 21.11.2012, taking note of the written statement
of defendant no.2, the Ld. Predecessor of the Court observed that the issue
as to whether the suit is maintainable for want of prayer of recovery of
possession shall be decided while deciding issue no.1. Hence, the said
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question will be considered at the time of deciding issue no.1.
Plaintiffs' Evidence
18.The plaintiffs have examined Mr. Desh Deepak Tyagi as PW1. Mr. Desh
Deepak Tyagi is the son of plaintiff no.2 and is also an attorney of both the
plaintiffs. He has tendered his affidavit Ex.P1 in evidence. In his affidavit,
he reiterated the averments made in the plaint. He asserted that the
plaintiff no.2 is a coowner of the suit property. He stated that the plaintiff
no.2 has entered into an agreement to sell with the plaintiff no.1 and that
the said agreement to sell was executed on 04.12.1998. He stated that
possession of the suit property was handed over to the plaintiff no.1 in part
performance of the agreement to sell. He further stated that the defendant
sometimes allows third parties to use an adjoining park without clarifying
that it is only that park which is to be used and as a result, those persons
enter and use the suit property. PW1 identified and relied upon a General
Power of Attorney as Ex. PW1/1. He identified the khatoni of the suit
property as Ex.PW2/1. He identified the agreement to sell as Ex.PW1/3, the
site plan as Ex.PW1/4, notice dated 07.12.2004 as Ex.PW1/5, copy of plan
attached to the notice as Ex.PW1/6, reply of post office as Ex.PW1/7, khasra
girdawari as Ex.PW2/2, a wedding invitation card as Ex.PW1/9 and copy of a
resolution passed by the defendant no.1 as mark "A". PW1 was cross
examined on behalf of the defendant no.1. After amendment of written
statement and after impleadment of defendant no.2, PW1 was again cross
examined on behalf of defendants. PW1 was then discharged.
19.The plaintiffs examined Mr. Salim Ahmed, Patwari as PW2. PW2 identified
the khatoni as Ex.PW2/1 and girdawari as Ex.PW2/2. He was cross
examined and was then discharged.
20.The next witness brought by the plaintiffs was Mr. Prashant Narula
(plaintiff no.1) as PW3. PW3 tendered his affidavit Ex.P3 in evidence. In his
affidavit, he stated that he had entered into an agreement to sell with
respect to the suit property. He deposed that the defendant no.1 allows the
public to use Subhash Park and those persons mistakenly enter into the suit
property. He asserted that he is the owner of the suit property. PW3 was
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crossexamined on behalf of defendants. After the defendant no.1 amended
its written statement and after the defendant no.2 was impleaded as a party
to the suit, the said defendants again crossexamined PW3. PW3 was then
discharged.
21.No other evidence was led by the plaintiffs. Plaintiffs' evidence was closed.
Defence Evidence
22.The defendant no.2 did not adduce any evidence in support of its case.
23.The defendant no.1 led evidence. Before amendment of written statement,
the defendant no.1 had examined Dr. Vidhya Sagar Sharma, Mr. Puran
Chand and Mr. Dharam Chand Batra as DW1, DW2 and DW3 respectively.
They had tendered their affidavits in evidence and had been cross
examined on behalf of plaintiffs.
24.After amendment of written statement, the defendant no.1 examined Mr.
Nanak Chand, Deputy Director, Horticulture, North Delhi Municipal
Corporation as DW1. Mr. Nanak Chand tendered his affidavit Ex.D1W1/A in
evidence. In his affidavit, he stated that North Delhi Municipal Corporation
is the owner and is in possession of the suit property. He stated that the suit
property was maintained as a park. He further stated in his affidavit that
there are two rooms and a urinal on the suit property and that the
defendant no.1 has been booking the suit property for holding events for
the benefit of local residents. He further stated in his affidavit that the
standing committee of North Delhi Municipal Corporation has passed
resolution dated 14.12.1960 thereby sanctioning the regularization plan of
Adarsh Nagar, Delhi. He stated that the lay out plan was modified by
resolution dated 16.09.1964. He stated that in the original lay out plan as
well as modified lay out plan, the suit property has been shown as a park.
He further stated that the "market community" of Municipal Corporation of
Delhi passed resolution dated 20.01.1978 thereby taking "on record" all
vacant municipal land including the suit property. He stated that the
plaintiffs have no right, title or interest over the suit property. The witness
has identified and relied upon the following documents:
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a. Lay out plan as Ex.DW1/1;
b. Photographs of the suit property as Ex.DW1/2;
c. Copy of resolution dated 14.12.1960 as Ex.DW1/3;
d. Layout plan as Ex.DW1/4;
e. Copy of resolution dated 16.09.1964 as Ex.DW1/5;
f. Modified layout plan as Ex.DW1/6;
g. Copy of resolution dated 20.01.1978 along with annexure as Ex.DW1/7
collectively.
DW1 was crossexamined and was then discharged.
25.The defendant no.1 examined Mr. Abhay Singh as D1W2. Mr. Abhay Singh
identified and relied upon resolutions dated 14.12.1960 and 16.09.1964 as
Ex.DW1/3 and Ex.DW1/5 respectively. He was then discharged.
26. The defendant no.1 then examined Mr. Hemant Kumar, Rent Collector as
D1W3. The said witness identified the record of vacant municipal land as
Ex.DW1/7. He was crossexamined and was then discharged.
27.The defendant no.1 then examined Mr. Sunder Lal, architectural assistant
as D1W4. The said witness identified the copy of lay out plan as Ex.DW1/5.
The witness was crossexamined and was then discharged.
The defendant no.1 closed its evidence.
Report of local commissioner
28.By order dated 07.11.2009, the Ld. Predecessor of the Court appointed a
local commissioner to inspect the suit property. The local commissioner
Mr. Mayank Bansal, Advocate filed his report. In his report, he stated that
the suit property comprises of an open plot with no gate, a small boundary
wall on three sides and a high wall on the northern side. He further stated
that the plot was being used for a wedding. He also stated that queries
revealed that the suit property lies in Adarsh Nagar and not in Majlis Park.
He further stated that no dispensary was found to be existing on the suit
property. He stated that he was unable to ascertain the khasra number of
the suit property.
29.Objections to the report of local commissioner were filed by the defendant
no.1. Reply to the objections were filed by the defendant no.1. The local
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commissioner was not examined as a witness in the Court.
Findings of the Court
30.I have heard final arguments advanced by ld. senior counsels appearing for
the parties and have perused the record. The issuewise findings are given
hereinafter..
Issue no.1
"Whether the plaintiff is entitled to the relief of declaration as prayed for?
OPP."
and
Issue no.2
"Whether the plaintiff is entitled to the relief of permanent injunction as
prayed for? OPP."
31.Issues no.1 and 2 are connected with each other and therefore, for
convenience and to avoid repetition, they are decided together. Along with
the aforesaid issues, it shall also be decided herein as to whether the suit is
maintainable in the present form without any prayer for recovery of
possession. The said question is being decided in view of the defence of
defendant no.2 and in accordance with the order of Ld. Predecessor of the
court dated 21.11.2012, wherein it has been held that the said question has
to be decided along with issue no.1.
32.The onus to prove issues no.1 and 2 was upon the plaintiffs. The plaintiffs
have prayed for declaration declaring that the defendant no.1 has no right
over the suit property. The plaintiffs have further prayed for permanent
injunction restraining the defendant no.1 from raising construction over
the suit property.
33.It is stated in the plaint that the plaintiff no.2 is the owner of the suit
property and has executed an agreement with the plaintiff no.1 to sell the
suit property to the latter. According to the plaintiffs, the defendant no.1
has been permitting people to use the suit property and has also been
trying to raise construction over the suit property.
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34.As against this, the defendant no.1 has stated in its amended written
statement that the suit property is in possession of the defendant no.1. It is
further stated that the defendant no.1 has been receiving bookings of the
suit property for the purpose of holding events.
35.The defendant no.2 has, in its written statement, stated that the suit
property is being maintained by the defendant no.1. The defendant no.2
has denied the ownership of plaintiff no.2 over the suit property. It is stated
that the suit property belongs to the Government.
36.To decide the aforesaid issues, it must be ascertained who is the owner of
and who is in possession of the suit property.
Pleadings
37.At the outset, the pleadings of the parties relevant to this issue are
examined. The plaintiffs have, in paragraph no.1 of the plaint, stated that
"the plaintiff no.2 is owner of" the suit property. In the corresponding
paragraph of the amended written statement (reply on merits), the
defendant no.1 stated that "the contents of para 1 of the plaint are wrong
and denied for want of knowledge". This shows that while the plaintiff no.2
has asserted his ownership rights over the suit property, the defendant no.1
has pleaded ignorance thereof. Importantly, the defendant no.1 has not
denied the ownership of the plaintiffs. The defendant no.1 has also not
claimed itself to be the owner of the suit property. The defendant no.1 has
not even disclosed who is the owner of the suit property if not the plaintiff
no.2. The ignorance pleaded by the defendant no.1 is not credible. The
reason disclosed by the defendant no.1 for not being aware of ownership of
the property is that better particulars of the property have not been
provided by the plaintiffs. The said reason cannot be accepted. The
plaintiffs have described the suit property in the plaint by reference to its
khasra numbers as well as the surrounding properties. The premises which
circumscribe the suit property have been described. A site plan depicting
the extent, area and location of the suit property has also been filed by the
plaintiffs. The plaintiffs have thus sufficiently described the suit property
and the defendants cannot plead ignorance of location of the property. Yet,
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even if any doubt still remained with the defendant as to the identity of the
suit property, that stood dispelled by the local inspection of the suit
property by the local commissioner. The local commissioner visited the suit
property in presence of the officials of the defendant no.1. His report is
signed by officials of the defendant no.1. The suit property was physically
identified by the local commissioner in the presence of the parties. Having
physically seen the suit property, the defendant no.1 cannot continue to
plead that it is not aware of the location or identity of the suit property. It is
on the basis of physical identification of the suit property itself that the
defendant no.1 chose to amend its written statement (urging that it has
now come to know of the property being referred to by the plaintiffs),
relegating the suit to a de novo trial. Yet, disingenuously, the defendant no.
1 has, in the amended written statement too, raised the same plea that it is
not aware of the suit property. This is clearly an evasive reply to the
assertion of the plaintiffs of their ownership of the suit property. It is also
relevant to note that the plea of the defendant no.1 is inconsistent with the
remaining portion of the same paragraph wherein the defendant no.1 has
portrayed the extent and condition of the suit property. The defendant no.1
has described the boundary and construction over the suit property. Had
the suit property not been identified, its condition would not have been
disclosed by the defendant no.1. This shows that the defendant no.1 had
indeed identified the suit property and yet pleaded that it is not aware of
the location of the suit property only to avoid making any definite
statement regarding ownership of the suit property.
38.Further, in paragraph no.3 of the plaint, the plaintiffs again asserted their
ownership rights over the suit property and stated that the defendant no.1
has no title over the property. In the corresponding paragraph of the
amended written statement (paragraph no.3 of reply on merits), the
defendant no.1 simply denied the contents of paragraph no.3 of the plaint.
The defendant no.1 stated that it is in "virtual possession" of the suit
property. It is significant to note that in the said paragraph too, while
claiming to be in possession of the suit property, the defendant no.1
stopped short of claiming title over the said land. It did not state that the
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suit property belongs to the defendant no.1.
39.Further, the defendant no.1 has, in its written statement, not explained as
to how the suit property came to be owned (if at all) by the defendant no.1.
In law, private properties do not automatically come under the ownership
of the State or the Municipal Corporation of Delhi. {Secretary of State Vs.
Vira Rayan (1886) ILR 9 Mad 175 as approved in Threesiamma Jacob and
others Vs. Geologist, Department of Mining and Geology and others, Civil
Appeal no.45404548 of 2000 decided on 08.07.2013}. For a property to be
owned by Municipal Corporation of Delhi, it must be acquired by lawful
means which may be land acquisition, vesting, purchase, gift or adverse
possession. None of these have been pleaded to exist.
40.The defendant no.1 has nowhere pleaded in its written statement that the
property came to the hands of the defendant no.1 by way of purchase, gift,
acquisition under the Land Acquisition Act or vesting. No conveyance deed
or gift deed has been placed on record by the defendant no.1. No
notification of land acquisition has been filed by it.
41.Adverse possession has also not been pleaded. Unless adverse possession is
specifically pleaded, it cannot be set forth and proved in defence. The
defendant no.1 has to state how and when its possession commenced, what
was the nature of its possession, and that the possession was known to the
real owner. Mere long possession, even if assumed to exist, does not make it
adverse. In holding so, support is drawn from the case of S. M. Karim vs
Mst. Bibi Sakina AIR 1964 SC 1254 wherein it was held:
"Adverse possession must be adequate in continuity, in publicity and extent
and a plea is required at the least to show when possession becomes adverse
so that the starting point of limitation against the party affected can be
found. There is no evidence here when possession became adverse, if it at all
did, and a mere suggestion in the relief clause that there was an
uninterrupted possession for "several 12 years" or that the plaintiff had
acquired "an absolute title" was not enough to raise such a plea. Long
possession is not necessarily adverse possession and the prayer clause is not a
substitute for a plea."
Reference is also made to the cases of Anjanappa Vs. Somalingappa (2006) 7
SCC 570 and R. N. Dawar Vs. Ganga Saran AIR 1993 Del 19 in which similar
observations were made.
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In the cases of Hemaji Waghaji Jat vs Bhikhabhai Khengarbhai Harijan &
ors. Civil Appeal no. 1196 of 2007 decided on 23rd September, 2008, and
Vishwanatha Achari Vs. Kanakasabapathy (2005) 6 SCC 56, it was held by
Hon'ble Supreme Court that a person who bases his title on adverse
possession must clearly and unequivocally state that his title was hostile to
the real owner. On the said claim being expressly made, an issue is required
to be framed and unless the issue is framed, the court cannot draw any
inference of acquisition of title by adverse possession. In the present case,
the defendant no.1 has not set up adverse possession as its defence.
Consequently, no issue has been framed to that effect and in light of the
aforesaid decisions such a claim of the defendant no.1 cannot be
entertained.
42. Vesting of land in MCD has also not been pleaded. During final arguments,
ld. senior counsel appearing for defendant no.1 urged that the suit property
was earlier owned by the gram sabha and that upon urbanization of the
village by issuance of notification under Section 507 of the Delhi Municipal
Corporation Act, the land stood transferred from the gram sabha to Central
Government. The aforesaid submission was made verbally during final
arguments and the defendant did not raise any such plea in its written
statement. Also, issuance of notification under Section 507 does not operate
as acquisition of privately owned land. By issuance of the said notification,
the land which is under bhumidari rights of individuals does not stand
transferred to Municipal Corporation of Delhi. The only effect of the
notification is that the Delhi Land Reforms Act, 1954 ceases to apply and
the property of gram sabha vests in the Central Government. Therefore, for
relying on the said vesting, the defendant no.1 ought to have specifically
pleaded that the property (shown in revenue records as a bhumidari
holding) had vest into the gram sabha before urbanization of the village so
as to be transferred to the Central Government on urbanization. The said
plea has not been raised by the defendant no.1. Hence, vesting not having
been pleaded cannot be proved and mere oral submissions on the
conclusion of trial (without any supporting material and in absence of
pleadings) cannot be accepted. Even otherwise, the Delhi Municipal
13/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05
Corporation Act establishes the Municipal Corporation as a body corporate
with powers to acquire, hold and dispose off property (Section 3 (2) of the
Delhi Municipal Corporation Act). That being so, the property of the
Municipal Corporation must be in its own name. The land belonging to the
Central Government, having been vest under Section 150 (3) (a) of the Delhi
Land Reforms Act, cannot be treated as property of the Municipal
Corporation. Therefore, even if the contention of vesting of land put forth
by senior counsel for defendant no.1 is accepted, that would not make the
defendant no.1 owner of the property. The issue at hand is for deciding
whether the defendant no.1 is the owner of the suit property and the
aforesaid plea of vesting, even if accepted, does not lead the court to decide
the issue in favour of the defendant no.1. This is besides the fact that in its
written statement, the defendant no. 1 has not even made any claim that it
is owner of the suit property, by whatsoever means.
43.In the written statement of defendant no.2, the residents' welfare
association has denied the ownership rights of the plaintiffs. They have
however not claimed that the suit property is under the ownership of the
defendant no.1. The association has simply stated that the land belongs to
"Government". The defendant no.2 has not clarified which "government" it
is referring to Central Government or the State Government. In any case,
the defendant no.1 is a separate and independent statutory body and
cannot be held to be a part of the Union of India or Government of NCT of
Delhi. The defendant no.2 has not claimed that the property is under the
ownership of the defendant no.1. In any event, no credence can be attached
to the pleadings of defendant no.2 since it has chosen not to lead any
evidence in support of its pleadings.
44.From the above, it is summarized that the plaintiffs have pleaded that the
defendant no.1 is not the owner of the suit property. This has not been
specifically denied by the defendants. The defendant no.1 has not claimed
itself to be the owner of the suit property. The defendant no.1 has not
disclosed who the owner of the suit property is, if not the plaintiffs.
45.It is settled law that the absence of specific denial amounts to admission.
This principle is founded on the provisions of Section 58 of the Evidence
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Act and Order 8 Rule 5 of the Code of Civil Procedure. As per Section 58 of
the Evidence Act, a fact admitted need not be proved. Order 8 Rule 5 of the
Code of Civil Procedure provides that a vague or evasive denial may be
treated as an admission of facts.
In the case of Asha Kapoor v. Hari Om Sharda (2010) 171 DLT 743, the
Hon'ble High Court of Delhi explained the underlying rule in civil litigation
that averments made by one party unless specifically refuted would be
deemed to be accepted. The Court observed as under:
"17. The effect of Order 8 Rule 3 read along with rr 4 and 5 of the Code is that,
defendant is bound to deal specifically with each allegation of fact not
admitted by him; he must either deny or state definitely that the substance of
each allegation is not admitted. The main allegations which form the
foundation of the suit should be dealt with in that way and expressly denied.
Facts not specifically dealt with will be taken to be admitted under Order 8
Rule 5 of the Code.
18. Order 8 Rule 5 of the Code is known as doctrine of nontraverse which means that where a material averment is passed over without specific denial, it is taken to be admitted. The rule says that any allegation of fact must either be denied specifically or by necessary implication or there should be a statement that the fact is not admitted. If the plea is not taken in that manner, then the allegation should taken to be admitted.
19. Supreme Court in M. Venkataraman Hebbar (D) By L.RS. Vs. M. Rajgopal Hebbar & Ors. 2007 (5) SCALE 598, observed;
"Thus, if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved.""
In the case of Kishan Lal Kalra and anr. V. LIC ILR Supp. 12 (2007) Delhi 1, it was held that if the defendant does not specifically deny the plea taken in the plaint, he is deemed to have admitted its correctness and it is not required for the plaintiff to prove the said plea.
46.Having regard to the aforesaid principle of law, it follows that a defendant must specifically deny every assertion made by the plaintiff. It is not sufficient for a defendant to say baldly that the contents of the paragraph are wrong and denied. Where the plaintiff has claimed his ownership, the defendant, if setting up an adverse title, must specifically state that the defendant is the owner of the property. It is required of the defendant disputing the title of the plaintiff to state who is the owner if not the plaintiff. Since this has not been done by the defendant no.1, its denial is 15/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 deemed to be evasive and is liable to be treated as admission of ownership of plaintiffs.
47.The defendant no.1 has not claimed itself to be the owner of the suit property. To this extent, the assertion of the plaintiffs remains undisputed. It may be inferred therefrom that the defendant no.1 is not the owner of the suit property.
48.It thus stands proved by admissions that the defendant no.1 has no right, title or interest over the suit property. There are two consequences which follow from this. Firstly, since there is no dispute over title, the plaintiffs are not required to lead evidence to prove the same (Section 58 of the Evidence Act provides that admitted facts need not be proved). Secondly, since the defendant has not expressly claimed ownership of the suit property in its pleadings, it cannot during trial improve its version and try to claim ownership rights. No evidence can be led to support a plea which has never been put forth. In the case of Darshan Singh v. Santokh Singh, 1997(2) R.C.R.(Civil) 577, the Hon'ble Punjab & Haryana High Court held as under:
"It is well settled that any amount of evidence in support of a plea which does not find place in the pleadings is inconsequential and is to be left out of consideration".
In Siddik Mahomed Shah v. Mt. Saran and others, AIR 1930 P.C. 57(1), which has since been followed in a plethora of cases, it was held:
"no amount of evidence can be looked into upon a plea which was never put forward."
The defendant has not claimed itself to be the owner and therefore cannot prove its ownership by leading evidence. Doing so would amount to traveling beyond the pleadings.
49.It may therefore be concluded that the defendant no.1 has no right or interest over the suit property and the issues may be decided accordingly.
50.It has already been held above that the defendant no.1 has not pleaded to be owner of the suit property and therefore cannot prove it. Despite this, the evidence adduced by the parties may be evaluated to ascertain whether the defendant no.1 would have succeeded in proving its title had it pleaded 16/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 its existence.
Evidence (deposition of witnesses and proved documents)
51.While the plaintiffs have disclosed the source from which they are deriving their title, the defendants have not done so. The source of title, if any, of the defendant no.1 can therefore be only speculated.
Whether evidence points towards voluntary transfer or acquisition of land in favour of the defendant no.1
52.The defendant no.1 has not led any evidence to establish that it has become owner of the suit property by any of the means recognized by law. The defendant no.1 has not proved any transfer deed (to show transfer of title by sale or gift), or notification of land acquisition (to show acquisition of the land under the Land Acquisition Act). Such attainment of ownership rights can only be by written documents and therefore the fact can be proved only by producing the said relevant documents, as laid down in Sections 61 and 91 of the Evidence Act, 1872. The documents have not been produced or proved.
53.The plaintiffs have identified a resolution dated 14.02.1980 as mark "A". The genuineness of the document is not in dispute. The said document simply provides for regularization of plots. It does not provide for change of ownership. It states that steps would be taken for acquisition of certain sites. Whether the steps have thereafter been taken or not has not been proved by either party. In this context it is apt to refer to the case of Pillayar P. K. V. K. N. Trust v. Karpaga N.N.U.S. AIR 2010 SC 3266, wherein it was held as follows:
"The High Court then referred to the argument made that admittedly 40 plots were private land and, therefore, even if it is presumed that it was included under the plan of 1992, yet since the land was not acquired either by agreement or by acquisition, they would be deemed to have been released from reservation."
54.Thus it can be safely inferred that the defendant no.1 has not become owner of the suit property by voluntary transfer or by acquisition of land.
17/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 Whether evidence suggests adverse possession or even possession of the defendant no.1
55.There is no evidence to show that the defendant no.1 has been in open and hostile possession of the land for the last twelve years so as to indicate adverse possession. The requirement of twelve years' hostile possession is laid down in Section 27 read with Articles 64 and 65 of Schedule 1 of the Limitation Act, 1963. In the case of Karnataka Board of Wakf v. Government of India & Ors. Appeal (civil) 16899 of 1996 decided on 16th April, 2004, the Hon'ble Supreme Court held as under:
"In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Nonuse of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See: S M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
56. In the present case, the defendant no. 1 has not disclosed the date on which it came into possession (if at all), the nature of its possession, and whether its possession was known to the other party. Hence no case of adverse possession is made out.
57.None of the witnesses produced by the defendant no.1 have testified to the long possession of the defendant no.1 over the suit property. D1W2, D1W3 18/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 and D1W4 have merely produced documents. They are not witnesses of facts. They have not led any ocular evidence. Whether one is in possession of land is a fact capable of being "seen" and therefore it has to be proved by "the evidence of a witness who says he saw it" (Section 60 of the Evidence Act, 1872). None of the above witnesses have stated that they have seen the land to be in possession of the defendant no.1.
58.D1W1 is the only witness who has testified to the existence of certain facts. Even he has, in his crossexamination, conceded that he has no "personal knowledge of the suit property" and that he has never visited the suit property except one day prior to his deposition. This shows that the witness has visited the suit property only on 17.09.2012. He is therefore not competent to depose as to whether the defendant no.1 has been in possession of the suit property at any time on or before 07.03.2005 (date of institution of the suit).
In the case of Sapna Singh Pathania v. Jagdish Chander Mehta, (1998) 75 DLT 725, the Hon'ble High Court of Delhi held:
"25. An affidavit must contain the evidence of the deponent as to such facts of which he is in a position to speak of to his knowledge and such fact must be verified on personal knowledge. It is only in respect of those facts which are not within his knowledge which can be verified on information or belief."
In the case of Ranjit Construction Co. Ltd. v. National Highways Authority of India, AIR 2004 Del 64, the Hon'ble High Court of Delhi held:
"13. The affidavit should not be vague or general. It must comply with the requirement of a valid affidavit as laid down in Civil Procedure Code (for short "Code"). The affidavit should be confined to such facts as the deponent is able to take from his own knowledge to prove, except on interlocutory application on which statements of his belief may be admitted, provided that the grounds thereof are stated. The statement based on personal knowledge be distinguished from the statement based on information and belief. In the case of statements based on information, the deponent shall disclose the source of his information."
Since the witness had never seen the suit property at any time before institution of the suit, his evidence does not throw light on who was in possession at that time.
59.Also, even if the question of possession of the defendant no.1 is treated as a matter of record, it cannot be deposed upon by a witness since it is open to 19/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 the court to peruse the record and to draw its own inferences. Hence, matters of record can be proved only by production of record whereas matters which are not evident from the record have to be testified to by the witnesses. This proposition emanates from provisions of Sections 59, 60 and 61 of Evidence Act, which codify the best evidence rule. In the present case, the record on the basis of which deposition has been made (details whereof are given later in this judgment), has not been produced. Hence, oral testimony to that effect is not admissible and is barred by Sections 61 and 91 of the Evidence Act.
60.Further, DW1 could not have been even confronted with the assertions of the defendant no.1 in its written statement since he totally disclaimed its averments by pleading ignorance thereof. He stated that he does not know the contents of the written statement. This shows that the witness has distanced himself from the pleadings of the defendant no.1. Regarding ownership of the suit property too, he pleaded ignorance instead of denying the title of the plaintiffs. His testimony is of no use to the defendant no.1. Hence, there is no evidence to establish long and open possession of the suit property by the defendant no.1. There is therefore no question of possession being hostile to the plaintiff so as to qualify for adverse possession.
61. In its written statement, the defendant no.1 claimed to be in possession of the suit property. However, no witness who had seen the suit property at the relevant time was produced by the defendant no.1. The defendant no.1 could at least have examined Mr. V. Satish, Deputy Director, Horticulture as its witness. The said person had verified the written statement and had sworn the affidavit in support thereof wherein he stated that he is conversant with the facts and that the facts are true to his knowledge. Since he had knowledge of the facts, he could have been examined by the defendant no.1 to support its case instead of examining an official who has no knowledge and has not even visited the suit property at the relevant time. It is settled law that a person conversant with the facts of the case can, and rather has to be, examined as witness even if he has been transferred or has retired. He cannot be substituted by anybody else merely because he 20/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 has been replaced in his official capacity. For withholding the relevant witness, adverse inference must be drawn against the defendant no.1. Under Section 114 of the Evidence Act, a party who withholds material witness or record is liable to suffer forming of adverse inference against him that the said witness/record if produced would have belied its claim. Reference is made to the case of Adivekka Vs. Hanamavva Kom Venkatesh AIR 2007 SC 2025. In light of the above, it is concluded that the defendant no.1 has failed to prove that it is in possession of the suit property or that it is owner of the suit property by adverse possession.
Whether evidence shows acquisition of ownership by vesting from gram sabha
62.It has been argued before the Court that title has been acquired by the defendant no.1 from the Gram Sabha by vesting as per Section 150 of the Delhi Land Reforms Act. As noted above, under Section 150 of Delhi Land Reforms Act, on dissolution of Gram Sabha, its property vests with the Central Government and not with the Gram Sabha. It has also been noted above that Municipal Corporation of Delhi is a distinct entity which cannot be equated with the Central Government. Therefore even if the defendant succeeds in proving urbanization of land and dissolution of Gram Sabha, the suit property would not come under the ownership of the defendant no.
1. Yet, even assuming that the defendant no.1 automatically becomes owner of the land of Central Government, even then to take advantage of the provisions of Section 150 of the Delhi Land Reforms Act the defendant no.1 needs to prove that the suit property was earlier owned by Gram Sabha. There is no evidence on record to show that the suit property was owned by Gram Sabha before urbanization of the village. None of the witnesses of the defendants have stated so in their testimony. This was not even suggested to any of the plaintiffs' witnesses during their cross examination. On the contrary, the suggestion put by counsel for defendant no.2 to PW1 is that the property does not belong to the plaintiff no.2 but belongs to the plaintiff no.1. The defendant no.1 has failed to lead any evidence to show that the suit property was earlier owned by Gram Sabha.
21/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05
63.The vesting of the suit property in Gram Sabha is not even reflected from revenue entries (khasra khatoni Ex.PW2/1 and khasra girdawari Ex.PW2/2). The plaintiffs have proved the khatoni as Ex.PW2/1. The khatoni shows the plaintiff no.2 to be a cobhumidar of land comprised in khasra nos. 262, 258 and 217/4. These are the same khasra numbers by which the suit property is described in the plaint. Khatoni is a document which shows existence of bhumidari rights. The defendant no.1 has failed to assail the genuineness of the khatoni. In the crossexamination of PW1, it was suggested to him that the khatoni was obtained fraudulently and in collusion with the concerned authority and that the khatoni is a forged document. PW1 denied the suggestion. No other question was put to PW1 in this regard. In his affidavit too, PW1 Mr. Desh Deepak Tyagi stated that the suit property has been under the ownership of the plaintiff no.2. The testimony of PW1 regarding ownership of the suit property could not be shaken during cross examination. Nothing could be brought out which could discredit the said witness. Further, the defendant no.1 has not been able to bring on record any document or any circumstance to suggest that the khatoni Ex.PW2/1 is a forged or fabricated document or that it has been incorrectly prepared. For the removal of doubts, the plaintiffs also examined Mr. Salim Ahmed, Patwari as PW2. He too identified the khatoni Ex.PW2/1. No suggestion was put to him to indicate that the khatoni was forged or fabricated or it was incorrectly prepared. In defence evidence too, no endeavour was made to dispute the genuineness of the khatoni Ex.PW2/1. The genuineness and correctness of khatoni Ex.PW2/1 stands proved by testimony of PW1 and PW2. There is nothing to disbelieve the veracity of the said document.
64.It is also not the case of the defendant no.1 that the entries were recorded erroneously or were under challenge or were proposed to be challenged. No proceedings for correction of revenue entries have been initiated under the Land Revenue Act. Under the said Act, there is a statutory presumption of correctness of the said entries. The entries having been made in discharge of official duties, also attract presumption of correctness under Section 114 {Ill. (e)} of the Evidence Act. Had the entries been incorrect, the defendant no.1 or its predecessorininterest Gram Sabha would surely have sought 22/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 their correction and would not have allowed them to remain in the revenue record for several years.
In the case of Shikharchand Jain v. Digamber Jain Praband Karini Sabha AIR 1974 SC 1178, it was held by the Hon'ble Supreme Court as follows:
"Section 80 (3) of that Act provides that entries in a record of rights shall be presumed to be correct unless the contrary is shown. This provision raises a presumption of correctness of the aforesaid Khasra entries. The burden of proving adverse possession accordingly was a heavy one. The judgment of the first appellate court shows that it has not kept in mind this aspect while examining the evidence."
The Court took note of the fact that the aggrieved party did not move any application to correct the revenue entries. It was noted:
"Assuming that his adverse possession started in 1937 and continued till 1949, he became the owner of the land in dispute in 1950. Nevertheless he did not move the appropriate revenue authority for the correction of the entries in the record of rights. He did not get the name of Smt. Rajrani expunged from the record and his name entered therein."
The Court thus has no option but to accept the revenue entries as correct and draw inferences therefrom. This approach finds support from the case of Phoolwati & Ors. vs. Ram Dei and Ors., 150 (2008) DLT 105, wherein the Hon'ble High Court of Delhi held as under:
"If one is aggrieved by the entries in Revenue record, the remedy is provided under Delhi Land Reforms Act for correction of record, for regaining possession, for ejectment of transfer, etc. The Civil court is not only barred from entertaining such claims, but is bound to honour the revenue records as correct".
Reference is also made to the cases of Regal Traders Vs. Lt. Governor 1990 RLR 334, Khiali Ram Vs. Sant Lal ARI 1972 P & H 393 and Gurbaksh Singh vs Nikka Singh AIR 1963 P & H 1917. The exclusive jurisdiction to correct error, if any, in revenue entries is with the revenue assistant under the Delhi Land Reforms Act, 1954. The Goan Sabha would have challenged the revenue entries had they been incorrect. The omission of the Gaon Sabha to challenge the same shows its acknowledgment of their correctness.
65.The khatoni is thus deemed to be genuine and onus is upon the defendants to disprove its genuineness. The defendants have not brought out anything which could cast a doubt on the said document. It is therefore concluded 23/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 that the khatoni Ex.PW2/1 is an authentic and valid document. It reflects the identity of the persons who were bhumidars of the land at the time when Delhi Land Reforms Act was in operation. The urbanization of the area does not efface the document and its consequence that the plaintiff no.2 was then a bhumidar of the suit property. Hence, the said document convincingly shows ownership of the property when the Delhi Land Reforms Act was in operation. After urbanization, bhumidari rights crystallized into ownership of plaintiff and the plaintiff no. 2 became the absolute owner of the suit property. To show any subsequent change in ownership, the onus is on the defendants, which they have not discharged.
66.On the basis of the khatoni, it can safely be concluded that the plaintiff no.2 was coowner of the suit property and the property was not owned by Gram Sabha, so as to vest with the Central Government on urbanization. Thus, it is concluded that the vesting of the suit property under Section 150 of the Delhi Land Reforms Act has not been proved.
67.Ld. senior counsel for defendant no.1 has argued that revenue entries do not create any title. He has relied upon the decision of Hon'ble Supreme Court in the case of Jattu Ram Vs. Hakam Singh and others (1993) 4 SCC 403 and State of Madhya Pradesh Vs. Narmada Bachao Andolan (2011) 7 SCC 639. It is correct that revenue entries do not confer title. But they are surely evidence of existence of title. If one is shown in the revenue record as bhumidar there is presumption of correctness of entries and onus is on the other party to show that the entry was not correctly made. In the Jattu Ram case (supra) too, it was held that revenue entries do not create any title and if it is shown by leading evidence that the entries were false and fabricated, the same may be ignored. In the present case, the defendant no.1 has failed to demonstrate that the entries were false or fabricated. In Narmada Bachao Andolan case (supra), the land had been acquired and the value of revenue entries was being assessed to ascertain if possession can be deemed to have been taken over pursuant to acquisition despite contrary revenue entries. Such is not the case here. Acquisition of land is neither pleaded nor attempted to be proved. Even ownership has not been expressly claimed by the defendant no.1. The abovesaid decisions are not 24/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 applicable to the facts of the present case. It is strange that the defendant no.1 herein or its predecessor never applied for modification of entries. This shows that the Gram Sabha had accepted the plaintiff no.2 as owner/bhumidar of the land and had no grievance with revenue entries reflecting this.
68.From the above, it is clear that the defendant no.1 is not owner of the suit property by way of voluntary transfer, land acquisition, adverse possession or vesting. The defendant no.1 is not even in possession of the suit property.
Presumption and Onus of Proof
69.As noted above, there is no evidence to show that the defendant no.1 was in possession of the suit property at the time of or before institution of the suit. Since possession has not been proved, the defendant no.1 cannot draw the benefit of presumption under Section 110 of the Evidence Act. Section 110 of the Evidence Act lays down that the person in possession is presumed to be the owner of the land and the onus is on the person disputing ownership of the possessor to prove it. The defendant no.1 has not proved itself to be in possession of the property and cannot urge any such presumption of ownership.
70. It is the defendant no.1 that is proposing to assert its rights and to allegedly raise a wall. It must therefore demonstrate its right to do so. Further, as to whether and how the land is under the ownership of defendant no.1 has to be within the knowledge of the defendant no.1. Therefore, in terms of Section 106 of the Evidence Act, this fact must be proved by the defendant no.1. If one is the owner of a property, he alone would have documents and other material to establish his ownership. It would be onerous and impracticable to place onus on the opposite party to prove to the contrary. It is important to note that this issue is not whether the plaintiffs are owners of the suit property but whether the defendant no.1 is owner thereof. Since the defendant no.1 is claiming ownership (although only verbally), it must prove it. This is more so since the initial onus on the plaintiffs has been discharged by them by proving revenue entries. It must be borne in mind 25/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 that burden of proof is distinct from onus of proof, as explained by Hon'ble Supreme Court in A. Raghavamma & anr. vs. A. Chenchamma & anr., AIR 1964 SC 136 in the following words:
"There is an essential distinction between burden of Proof and onus of proof; burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence."
Elaborating on this principle, the Hon'ble High Court of Delhi in Surajbhan Kailash Chand and anr. vs Hari Shanker Vashisht and anr. AIR 1976 Delhi 70 held as follows:
"This section shows that the initial burden of proving a prima facie case in his favor is cast on the plaintiff; when he gives such evidence as will support a prima facie case, the onus, shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff."
71.In the present case, the plaintiffs have claimed ownership and possession over the suit property. They have established their plea by proving entries in the revenue record. They have thus prima facie discharged their onus. The onus thereafter shifted to the defendants. They have however not discharged their onus. They have not proved any means whereby they could have become owner of the suit property. They have not placed on record any document of title. The obligation to produce title documents and to affirmatively prove ownership cannot be avoided by the defendant no.1 by stating that burden of proving the issue was not upon it, as laid down in the aforesaid decisions. The defendant no.1 has clearly failed to demonstrate that it has any right or title over the suit property.
72.The defendant no. 1 has relied upon the decision of Rangammal v. Kuppuswami (2011) 12 SCC 220 to contend that a plaintiff has to independently establish his case and cannot rely solely on the weakness of defence. The judgment is of no help to the defendant no. 1 since in the present case the plaintiffs have buttressed their claim of ownership with the aid of revenue records. Admittedly, the property was earlier governed by the 26/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 Delhi Land Reforms Act and entries in revenue records are proof of bhumidari rights under the said Act. It is not the case of the plaintiffs that plaintiff no. 2 had purchased the suit property after urbanization of the village and as such there is no occasion or need for the plaintiffs to produce any other title document like a conveyance deed. This is not a case where the plaintiff has not proved its title and has relied solely on the weaknesses of defence, and therefore the aforesaid judgment does not aid the defendant no.1.
73.Ld. Senior Counsel for defendant no. 1 has also relied upon the case of Hanumaiah v. Secretary to Govt. of Karnataka (2010) 5 SCC 203 which has set out the distinction between adverse possession suits filed by individuals against private parties and those against the government. The judgment is not applicable to the present case since the plaintiffs herein have not claimed adverse possession. In cases of adverse possession, the claimant has no equity and has to convincingly prove all his assertions. That is not the case here and therefore a different and higher standard of proof is not required to be attained by the plaintiffs herein. Also, in that case, it has been laid down that unoccupied land is presumed to be owned by the Government and not by local authorities. That shows that MCD has no residuary title over unoccupied land. Also, the said presumption has been held to be subject to private individuals showing their title over the land. In this case, the plaintiffs have succeeded in demonstrating their title, by aid of revenue entries. The entries have not been shown by the defendant no. 1 to be "stray" or obtained by collusion so as to be ignored as per the aforesaid judgment. The aforesaid decision thus does not bolster the defence.
Effect of lay out plan
74.The defendant no.1 has relied upon a lay out plan to demonstrate its title and ownership of the suit property. The contention is without merit, owing to the following two reasons:
a. The lay out plan Ex.DW1/5 has not been proved in accordance with law. Under Section 64 of the Evidence Act, a document must be proved by primary evidence. Primary evidence, as per Section 62 of the Act, means 27/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 the document itself produced before the Court. In the present case, the lay out plan in original has not been produced or proved before the Court. DW1 Mr. Nanak Chand admitted in his crossexamination that he has not brought the original lay out plan. The defendant no.1 then called D1W4 Mr. Sunder Lal to prove the plan. He sought to identify the plan in his examinationinchief. Counsel for plaintiffs objected to the mode of proving the document. In crossexamination, the witness conceded that he has not brought the original lay out plan. He also stated that the plan which has been produced before the Court is only part of the original lay out plan. It is thus clear that even the whole document has not been produced before the Court. A document cannot be proved by production of only part thereof. The whole document has to be produced. The failure of the defendant no.1 to prove the document as per law assumes significance since the genuineness of the document has been vigorously challenged by the plaintiffs.
b. The lay out plan is not a document of title. Even if it is assumed that it has been validly proved and is genuine, the fact of its issuance does not affect the ownership of the suit property in any manner. A lay out plan is a plan according to which the land could be used. It is prepared for planned development of the area. It does not confer title on any person. It also does not reflect actual physical possession. It simply states the manner in which the property should be used. Whether the land is in fact being so used is not borne out from the said plan. The mere fact that a lay out plan earmarks a property as a park or shows the property to be public land does not imply that the land belongs to Municipal Corporation of Delhi. It is not the case of the defendant that the lay out plans were prepared after obtaining consent of the plaintiffs so as to estop the plaintiffs from making a contrary claim. The lay out plan is a document of the defendant no.1 itself. It cannot, of its own, decide as to which property belongs to it and show it under its ownership or occupation in the lay out plan. If that were so, there would be no requirement of acquisition of land and municipal bodies would be free to acquire ownership over private land by simply showing it to be municipal land in its lay out plans. The lay out plans 28/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 therefore do not confer any ownership rights upon the defendant no.1. The lay out plan does not advance the defence of the defendants. In this regard, it would be apt to refer to the decision of Hon'ble Supreme Court in the case of Pt. Chet Ram Vashist Vs. Municipal Corporation of Delhi, Civil Appeal no.319 of 1976 decided on 26.10.1994. Briefly stated, the facts of that case were that a private colonizer sought sanction to his lay out plan of an area owned by him. The sanction was granted with the condition that some space shall vest with the Municipal Corporation. The Hon'ble Supreme Court held that imposition of such a condition was illegal. It was held that the Municipal Corporation cannot transfer ownership of land while approving a lay out plan. It was observed as under:
"There is no provision in this chapter or any other provision in the Act which provides that any space reserved for any open space or park shall vest in the Corporation. Even a private street can be declared to be public on the request of owners of the building and then only it vests in the Corporation. In absence of any provision, therefore, in the Act the open space left for school or park in a private colony cannot vest in the Corporation. That is why in England whenever a private colony is developed or a private person leaves an open space or park to be used for public purpose he is required to issue what is termed as 'Blight Notice' to the local body to get the land transferred in its favour on payment of compensation. Section 313 which empowers the Commissioner to sanction a layout plan, does not contemplate vesting of the land earmarked for a public purpose to vest in the Corporation or to be transferred to it. The requirement in law of requiring an owner to reserve any site for any street, open space, park, recreation ground, school, market or any other public purposes is not the same as to claim that the open space or park so earmarked shall vest in the Corporation or stand transferred to it. Even a plain reading of subsection (5) indicates that the land which is subject matter of a layout plan cannot be dealt with by the owner except in conformity with the order of the Standing Committee. In other words the section imposes a bar on exercise of power by the owner in respect of land covered by the layout plan. But it does not create any right or interest of the Corporation in the land so specified. The resolution of the Standing Committee, therefore, that the area specified in the layout plan for the park and school shall vest in the Corporation free of cost, was not in accordance with law."
Similar observations have been made in the case of Raju Jethmalani Vs. State of Maharashtra (2005) 11 SCC 222. In that case, land was reserved as a public garden under the development plan but was not acquired by the Government. The Court held that mere inclusion of private land in 29/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 development plan cannot deprive its owner of its use. The following observation is relevant:
"It is true that when it was shown as a garden in the draft development plan no objection was raised and final notification declaring this land as earmarked for garden was published. It is true that a Development Plan can be prepared of a land comprising of a private person but that plan cannot be implemented till the land belonging to the private person is acquired by the Planning authority. It is not that the Planning authority was ignorant of this fact. It acquired some land from Plot No.437 for developing garden but the land from plot No.438 was not acquired for garden. Therefore, the question is whether the Government can prepare a development plan and deprive the owner of the land from using that land ? There is no prohibition of including private land in a development plan but no development can be made on that land unless that private land is acquired for development. The Government cannot deprive the persons from using their private property. We quite appreciate the interest of the residents of that area that for the benefit of the ecology, certain areas should be earmarked for garden and park so as to provide fresh air to the residents of that locality. In order to provide such amenities to the residents of the area private land can be acquired in order to effectuate their public purpose but without acquiring the private land the Government cannot deprive the owner of the land from using that land for residential purpose."
From the above, it is clear that a lay out plan does not create any interest in favour of the Municipal Corporation.
75.Ld. senior counsel for defendant no.1 has relied upon the case titled K. L. Sachdeva Vs. Municipal Corporation of Delhi 2013 (5) AD (Delhi) 21 to contend that by reserving land for a public purpose, the land essentially comes under the ownership of the Municipal Corporation. I am afraid such a proposition cannot be culled out from the said decision. In that case, the Hon'ble High Court of Delhi specifically noted, relying on the Chet Ram case (supra), that a lay out plan cannot create ownership right or interest of the Corporation in land. The Hon'ble High Court of Delhi decided that case in favour of the Municipal Corporation in light of the fact that the lay out plan therein had the assent (or at least acquiescence) of the claimant. It was noted that the plaintiff was "a party to the submission of lay out plans of the MCD for regularization". Since the plaintiff therein was a consenting party to the lay out plan, he could not have disclaimed its covenants. That however is not the case here. The plaintiff no.2 has not been shown to be a consenting party to the lay out plan and therefore the plan cannot be held 30/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 to be binding upon him. The cited decision does not advance the defence.
76.It is concluded that the said lay out plan does not establish that the suit property is owned by the defendant no.1.
Decision of Hon'ble High Court of Delhi dated 17.12.2012
77.Ld. senior counsel for defendant no.1 has filed copy of decision of Hon'ble High Court of Delhi in the case titled Adarsh Nagar Extension Residents Welfare Association (Regd.) Vs. MCD and ors. WP (C) no.1317/12 dated 17.12.2012. He has relied upon the said decision during oral arguments.
78.By the said order, the Hon'ble High Court of Delhi decided an interlocutory application filed in a writ petition. Admittedly, the writ petition does not relate to the suit property. Further, it is pointed out by Ld. senior counsel for plaintiffs that the writ petition has not been decided by the said order and only certain interim directions have been passed. That being so, the decision has no bearing on the present case. Also, as submitted by Ld. senior counsel for plaintiffs, the said decision was challenged before the Division Bench of Hon'ble High Court of Delhi. By order dated 18.02.2013, Hon'ble Division Bench held that the writ petition may be disposed off without reference to the observations made in the said order. In light of the aforesaid, the decision on the interlocutory application is of no relevance to the present suit. This is besides the fact that the decision has not been proved before the court by leading evidence and a mere photocopy was submitted in Court by Ld. senior counsel for defendant no.1 during final arguments.
Value of testimony of PW1
79.At the time of recording of testimony of PW1 Mr. Desh Deepak Tyagi, counsel for defendant no.1 objected to his examination on the ground that he is only attorney of plaintiffs and he is not competent to depose on behalf of the plaintiffs. It was held by the court that the objection would be decided at the final stage.
80.In para no.1 of his affidavit, PW1 Mr. Desh Deepak Tyagi has expressly stated that he is conversant with the facts of the case. In the verification 31/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 clause of his affidavit, the witness has stated that his deposition is true as per his "knowledge". In crossexamination, the witness reiterated this stand and stated "I have personal knowledge of whatever is written in affidavit." Besides putting the aforesaid suggestion, no attempt has been made by the defendant no.1 to demonstrate that the facts deposed by PW1 were not in his knowledge. In fact even the above suggestion was put only on 04.09.2006. The knowledge of the witness was not called into question during his crossexamination after amendment of written statement (carried out on 04.01.2013). No evidence was led in defence too to show that the facts deposed by the PW1 were not in his personal knowledge. In view of the repeated assertions of PW1 that the facts deposed by him emanate from his personal knowledge and the failure of defendants to rebut the same, it stands established that PW1 Mr. Desh Deepak Tyagi deposed to facts which he was personally aware of. That being so, he is a competent witness and his testimony cannot be rejected solely on the ground that he is attorney of the plaintiffs.
81.The requirement of law is that one cannot depose simply because he is attorney of a litigating party without having any knowledge of the facts. One can however always depose on facts known to him irrespective of whether one has been authorized by power of attorney or not. The law on the subject has been summarized in the case of Shri Durga Dass Banka v. Shri Ajit Singh & Ors. RSA No. 149/2011 decided by Hon'ble High Court of Delhi on 1st November, 2011. The following extract is relevant:
"In my considered view, as a special power of attorney holder, Mr. Vipin Banka was fully authorized to depose in place of his father. Once such an authority has been given by the father to his son to depose on his behalf, can it be said that despite the said authority being given the son would not be competent to depose on behalf of his father? Not disputing the legal position that the facts which are within the knowledge of the plaintiff can only be deposed by the plaintiff alone and not by his attorney holder, but the moot question which arises in the present case is where the father because of his old age and illness gives an authority to his son or any of his family member to depose on his behalf, whether deposition of such an attorney holder can be ignored on the ground that the plaintiff himself did not appear in the witness box.? The answer to this is in the judgment of this court relied upon by the counsel for the plaintiff in Om Prakash Vs. Inder Kaur, 156(2009) DLT 292 wherein it was held that the evidence given by a witness cannot be 32/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 rejected on the ground that he is a father or a relative, nor any adverse inference can be drawn against the plaintiff on the ground that he had not appeared his own witness in the case as the plaintiff is master of his case and he can prove his case without appearing in the witness box."
Reference is also made to the case of Satnam Channan v. Darshan Singh (2006) 143 PLR 459 decided by Hon'ble Punjab & Haryana High Court on 28.2.2006.
82.Ld. senior counsel for defendant no.1 has relied upon the case of Man Kaur Vs. Hartar Singh VII (2010) SLT 144. In that decision too, the same proposition was laid down as stated aforesaid. It was held that an attorney cannot depose on matters which are exclusively within the knowledge of the plaintiff. The decision is of no aid to the defendant no.1 since the defendant no.1 has failed to demonstrate that the matters deposed upon by PW1 were not in his knowledge and were exclusively within the knowledge of the plaintiffs.
83.It is thus clear that capacity to depose depends on whether one has personal knowledge of the facts of the case. It does not depend on any authorization. In the present case, as noted above, PW1 Mr. Desh Deepak Tyagi has proved that he is aware of the facts of the case. He is thus competent to depose. The plea of the defendant no.1 that he cannot depose since he is attorney of the plaintiffs is rejected.
Failure of plaintiffs to examine plaintiff no. 2
84.Ld. Counsel for defendant no. 1 has submitted that adverse inference must be drawn against the plaintiffs since they failed to examine plaintiff no. 2 as a witness.
85.It is noted that the case of the plaintiffs does not rest solely on the testimony of PW1 Mr. Desh Deepak Tyagi but also on the testimony of PW3 Mr. Prashant Narula. Mr. Prashant Narula is a party to the suit. He is plaintiff no.1 in the case. His testimony contained in his affidavit Ex.P3 is similar to that of PW1 Mr.Desh Deepak Tyagi. Hence, it cannot be said that the plaintiffs have shied away from the Court. Even the plaintiff no.2 Jai Parkash Tyagi has submitted his affidavit in evidence. His affidavit is similar 33/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 to that of PW1 Mr. Desh Deepak Tyagi. He was however not crossexamined and therefore his testimony cannot be considered. This is not a case where adverse inference must be drawn against the plaintiffs for their inability to examine themselves. The plaintiff no.1 was duly examined as PW3. In addition, the plaintiffs have examined their attorney Mr. Desh Deepak Tyagi as PW1. Mr. Desh Deepak Tyagi has proved that he is aware of the facts of the case. If plaintiff no.2 had also been examined it would have been a mere repetition of facts. If attorney of a plaintiff has validly proved all relevant facts, and another plaintiff has also been examined and has proved the facts, for the mere absence of the other party from the witness box no adverse inference can be drawn, as laid down in the case of Saradamani Kandoppan v. Mrs. S. Rajalakshmi & Ors. 2011 VIII AD SC 177 as under:
"When one of the defendants who is conversant with the facts has given evidence, it is not necessary for other defendants to be examined as witnesses to duplicate the evidence."
In the case of Bombay Agarwal Co. v. Ramchand AIR 1953 Nag 154, the Hon'ble Nagpur High Court held as under:
"It is obvious that for the purposes of the Evidence Act no fixed number of witnesses is needed to prove a fact: even the testimony of but one; witness is sufficient, if that witness can be believed."
For this reason, the case of the plaintiffs cannot be disbelieved on the ground that the plaintiffs have not examined plaintiff no. 2 as a witness.
Value of testimony of PW3
86.Ld. Senior Counsel for defendant no.1 has assailed the deposition of PW3 Mr. Prashant Narula on the ground that he admitted during cross examination that he had not gone through the plaint.
87.The plaint was not filed under the signatures of plaintiff no. 1. His attorney had signed it on his behalf. PW3 has not denied the authority of his attorney to affirm the plaint and to file it. He has also not disputed the correctness of the averments made in the plaint. He has not departed from the said averments, while deposing in court. Rather he has reiterated them in his affidavit Ex.P3. The plaintiff no. 1 has asserted ownership and possession 34/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 of the suit property. He has stated that he had seen the suit property at the time of its purchase and that he had verified the physical possession of the plaintiff no.2. This shows that there is no variance between the version of the plaintiff no.1 in his deposition and that which was set out in the plaint. It is concluded that the plaint was rightly filed under the instructions of the plaintiff no. 1, and the mere fact that the plaint was not read by him before it was filed is immaterial.
88.Ld. Senior Counsel for defendant no.1 has pointed out that the plaintiff no. 1/PW3 has admitted in his crossexamination dated 12.12.2007 that he did not sign any register of oath commissioner. This contention is not tenable. The affidavit of PW3 was affirmed on oath in the court at the time of it being tendered in evidence. Hence, even if there is some irregularity in administering oath by the oath commissioner, or even if oath has not been administered by the oath commissioner, that does not impinge on the validity of the evidence of PW3.
89.Also, the case of the plaintiffs is not based solely on the testimony of PW3 Mr. Prashant Narula but also on the testimony of PW1 Mr. Desh Deepak Tyagi who has proved all relevant facts. Therefore, even if the deposition of PW3 Mr. Prashant Narula is ignored, the plaintiffs would not fail.
90.The plea of the defendant no.1 questioning the testimony of PW3 is rejected.
Whether the suit property falls under the khasra numbers mentioned in the khatoni and khasra girdawari; Demarcation of the suit property
91. The plaintiffs have relied upon khatoni of the suit property as Ex.PW2/1 and its khasra girdawari as Ex.PW2/2. PW1 and PW2 have identified the said documents. It has already been held above that the documents are genuine and can be relied upon. Khatoni is the document of title whereas girdawari shows possession of the plaintiff no. 2 over the suit property. The documents relate to Khasra nos. 262, 258 and 217/4. The suit property is described in the plaint by the same khasra numbers.
35/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05
92.Ld. Senior Counsel for defendant no.1 has argued that there is nothing on record to show that the suit property falls under the khasra numbers mentioned in the revenue records. He submits that the land described in the khatoni and girdawari is a very large chunk of land, and there is nothing to show that the suit property forms its part. He submits that no witness of the plaintiffs has connected the suit property to the said khasra numbers.
93.In this behalf, it is noteworthy that the defendant no.1 had, through its officials, physically inspected the suit property at the time of visit of local commissioner. The defendant no.1 is aware of the identity and location of the suit property. Yet the defendant no.1 has not, in its amended written statement, claimed that the suit property does not fall under the said khasra numbers or that it falls under different khasra numbers. The defendant no. 1 is now trying to make out a new defence altogether. This is not permissible.
In the case of Veeran Devi v. Subhash ILR (2008) Supp 12 Delhi 1, it was held by Hon'ble High Court of Delhi that the suit has to be decided only on the basis of pleadings raised therein. It was noted:
"Scope of the suit is limited by prayers and averments made out in the plaint in the plaint and the defence put up by the defendant in the written statement".
Similar observations were made in the case of Sheodhari Rai v. Suraj Prasad Singh AIR 1954 SC 758. A fact which is not pleaded to exist cannot be sought to be proved. Since the defendant no.1 has not pleaded that the suit property does not fall under the said khasra numbers, it cannot prove the said plea.
94.It is not the case of the defendant (as per written statement) that although the plaintiff is bhumidar of the land comprised in the said khasra numbers, the suit property does not fall under the said khasra numbers and so the plaintiff no.2 is not bhumidar/owner of the suit property. On the contrary, the thrust of the defendants has been to challenge the correctness of the revenue entries. This implies that the stand of the defendant was that though the suit property falls under the khasra numbers, the land comprised in the said khasra numbers belongs to the gram sabha. Had the 36/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 suit property not been falling under the khasra numbers, the defendant would have simply branded the revenue entries as being irrelevant, and would not have instead tried to challenge the correctness of the entries to show its ownership.
95.In the written statement, only a vague averment has been made by the defendant no.1 that the municipal number of the suit property has not been provided by the plaintiff and therefore the property has not been properly described. Had the khasra number provided by the plaintiffs been incorrect, the defendant no.1 would have emphatically stated so and would have disclosed the correct khasra number of the suit property. This has not been done. The failure of the defendant no.1 to disclose the khasra number in which the suit property is situated (if not those which are disclosed by the plaintiffs) leads to the inference that indeed the khasra number disclosed by the plaintiffs is correct and the suit property is the one which is mentioned in the revenue records. There is no specific denial on this point in the written statement.
96.Further, it is noted that the plaintiffs had examined PW1 Mr. Desh Deepak Tyagi who stated in his testimony that as per khatoni the plaintiff no.2 was the owner of the suit property. In crossexamination of the witness, no specific suggestion was put to him that the suit property does not fall under the said khasra numbers or that the suit property is not the one which is described in the khatoni. If this was the stand of the defendant no.1, the defendant no.1 ought to have questioned PW1 on that point. Failure to crossexamine implies acceptance of correctness of testimony. Similarly PW2 Mr. Salim Ahmed and PW3 Mr. Prashant Narula have not been given any suggestion in their crossexamination that the suit property does not fall under the khasra numbers mentioned in the khatoni. The defendants have also not led any evidence to show that the suit property does not fall in the said khasra numbers, or to indicate that there is some land in the aforesaid khasra numbers which is not under the ownership of the plaintiff or which is not reflected in the aforementioned revenue documents.
97.This shows that it is not the stand of the defendants that the suit property does not fall under the said khasra numbers and that the defendant no.1 is, 37/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 during oral arguments, trying to change its stand without support of evidence. The plaintiffs cannot be taken by surprise in this manner. As per the plaint, the plaintiffs claimed to be owners of the suit property and were aggrieved by the attempt of the defendant no.1 to raise construction thereon. The plaintiffs therefore sued to restrain the defendant no. 1. They supported their ownership by aid of revenue records which showed them as owners. The defendant no. 1, in its written statement, did not specifically deny ownership of the plaintiffs. The plaintiffs proceeded to prove their case. At that time, the plaintiffs had no reason to anticipate that the defendant will raise the plea of the suit property not falling in the said khasra numbers. Since the objection could not have been foreseen, the plaintiffs cannot be expected to specifically prove this fact. In the case of Nagubai Ammal v. B. Shama Rao AIR 1956 SC 593, the Hon'ble Supreme Court noted:
"The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence."
98.The plaintiffs' witnesses stated that the suit property is covered by the aforesaid khasra numbers shown in the revenue documents. The plaintiffs cannot be faulted for not leading more evidence on the same issue particularly when the defendants did not raise the said plea in defence. Since the contention is of the defendant no.1, it must affirmatively prove it. On proof of the revenue records, the onus has shifted to the defendant to show that the revenue entries so proved do not pertain to the suit property. However, no evidence has been led by the defendant to discharge this onus.
99.Interestingly, PW1 Mr. Desh Deepak Tyagi stated in his crossexamination that as per demarcation report, the plaintiff no.2 is in possession and is the owner of the suit property. This assertion was not contested by defendant no. 1, which shows that it was accepted without demur. No question was put to the witness disputing the existence or veracity of such a report.
100.When PW1 stated that the report of demarcation has not been placed on the court record, the defendant no.1 did not call upon the witness to produce the demarcation report. This shows that the defendant no. 1 did 38/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 not wish to contradict the witness on this point. If the witness had to be contradicted on the said point, he should have been called upon to produce the demarcation report. That was not done. This suggests that the defendant no.1 had accepted the statement of the witness that as per demarcation the suit property is comprised in the khasra numbers mentioned in the khatoni.
101.Ld. senior counsel for defendant no. 1 has argued that adverse inference must be formed against the plaintiffs for not producing the demarcation report. I do not agree with the contention. The defendant no. 1 had not stated in its written statement that the revenue entries do not apply to the suit property. Since this fact was not disputed, there was no requirement for the plaintiffs to prove this fact, and resultantly there was no obligation on the part of the plaintiffs to prove the demarcation report. On the contrary, since this contention is of the defendant, it was for the defendant to procure the demarcation report and prove it. Also, the defendant could have asked PW1 to produce the demarcation report. Yet, no effort was made by the defendant no. 1 to do so. Reference is made to the case of Union of India vs Ibrahim Uddin & Anr. Civil Appeal no. 1374 of 2008 decided by Hon'ble Supreme Court on 17 July, 2012. In that case it was held that no adverse inference can be drawn against a party for failing to produce a document in its possession if the other party could have compelled production of the document and yet did not avail of this opportunity. It was held as under:
"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 factsituation, no adverse inference can be drawn against a party for non production of a document unless notice is served and procedure is followed. xxx xxx The courts below had wrongly drawn adverse inference against the appellant/defendant No.1 for not producing the documents as there was no direction of the court to produce the same. Neither the plaintiff/respondent No.1 had ever made any application in this respect nor he filed any application under Order XI CPC submitting any interrogation or for 39/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 inspection or production of document."
102.Further, no evidence has been led by the defendants in their defence to show that the suit property falls under different khasra numbers or that the suit property is not the one described in khatoni Ex.PW2/1. It is strange that the defendants chose to deny the correctness of the khasra numbers disclosed by the plaintiffs without being aware of correct khasra numbers. The plea of the defendants is bald and unsubstantiated. The defendant no. 1 has not explained as to why it feels that the khasra number of the suit property is not the one disclosed by the plaintiffs, without having got demarcation done. If demarcation was got done, its report should have been filed by the defendant no. 1. It appears that the defendant no. 1 has raised this plea only to somehow deprive the plaintiffs of their claims without actually being aware of the khasra numbers of the suit property.
103.If demarcation had not been got done by the defendant, and the defendant doubted the correctness of the khasra numbers set out by the plaintiffs, the defendants ought to have sought demarcation of the suit property by applying to the SDM. The defendants could also have applied to the Court for demarcation. That has not been done. Mere suspicion of the defendant no. 1 cannot be treated as evidence so as to deprive the plaintiffs of their claims.
104.It may be mentioned here that during final arguments, the plaintiffs filed a demarcation report. Their counsel submitted that the said demarcation had been carried out at the behest of the defendant no. 1 but the report was withheld from the court by the defendant no. 1 because the report of demarcation supported the claims of the plaintiffs. The plaintiffs stated that they obtained the report under the Right to Information Act. The report is however not being relied upon since it has not been proved in accordance with law.
105.In the result, it is concluded that the plea of the defendants that the suit property does not fall under the khasra numbers mentioned in the khatoni and girdawari stands not proved.
40/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 Effect of rejection of application of plaintiffs for interim injunction
106.Ld. Senior counsel for defendant no.1 has placed heavy reliance on the dismissal of the application for interim relief by order dated 26.09.2005 passed by the Ld. Predecessor of the Court. I am afraid I am unable to agree with the contention. By order dated 26.09.2005, the application under Order 39 Rules 1 and 2 of Code of Civil Procedure was rejected. The observations made in the said order were only prima facie. An order passed under Order 39 Rules 1 and 2 of Code of Civil Procedure does not return findings of fact and also does not express any final opinion on the merits of the case so as to influence the Court while finally deciding the case. It is also expressly stated in the said order that it is not "an expression of opinion on the merits of the case".
107.An order under Order 39 Rules 1 and 2 of Code of Civil Procedure is meant to only decide the status of the parties till final adjudication of their rights. The observations made in the said order are not binding on the court. At the time of passing of the interim order, the Court did not have the benefit of evidence tendered by the parties. A final decision of the case is on the basis of the said evidence. Further, the said interim order has lost its relevance due to change in circumstances on account of identification of the suit property, amendment of written statement and leading of evidence. Hence, no reliance can be placed on the said order by the defendants.
Effect of decisions dated 17.02.1962 and 03.05.2007 .
108.Ld. counsel for defendant no.1 has relied upon a decision of Ld. Additional District Judge, Delhi dated 03.05.2007. The said judgment was delivered in the case titled as Sardari Lal Tandon Vs. MCD, suit no.300/04. The decision has been proved as Ex.DW1/5.
109.In that case, the plaintiffs had instituted a suit for recovery of possession against the MCD in respect of certain plots. The suit was dismissed on the ground that the plaintiffs failed to prove their case. The judgment does not have any bearing on the present suit since that suit was admittedly in respect of a different property. The decision has no relevance to the present case and reliance thereon by the defendant no.1 is misplaced.
41/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05
110.Ld. senior counsel for defendant no.1 has, during oral arguments, referred to a decision dated 17.02.1962 passed by Ld. SubJudge Delhi in the case of Thakar Dass and others Vs. Gaon Sabha, suit no.12/1961. The said judgment has been identified as Ex.DW1/P2. Relying on the said judgment, Ld. Counsel for defendant no.1 has argued that the plaintiff no.2 herein has ceased to remain the owner of the suit property as the same was sold by him to Capital Housing Private Limited.
111.The said judgment is perused. By the said judgment, a suit filed by the plaintiffs challenging the vesting of land in Gaon Sabha was decreed in favour of the plaintiffs. The plaintiff no.2 herein was one of the plaintiffs in that suit. Rather than supporting the defendant no.1, the judgment belies its claim that the land stood vested with Gram Sabha before urbanization of the village. In order to support its claim over ownership, Ld. Senior counsel for defendant no. 1 had argued that the suit property stood vested with Gram Sabha before urbanization and after urbanization the property came under the ownership of the defendant no.1. In light of the above decision, it is not open to the defendant no.1 to contend that the suit property belonged to Gram Sabha before urbanization of the village. The predecessorininterest of the defendant no.1 i.e. the Gram Sabha was a party to the said decision and therefore the said decision is binding on the defendant no.1. Applying the said decision, it is clearly established that there was no valid vesting in favour of Gram Sabha and the suit property can therefore not be claimed to be owned by the defendant no.1.
112.Ld. senior counsel for defendant no.1 has resisted the aforesaid conclusion on the ground that the said decision of Ld. SubJudge was beyond its jurisdiction and therefore is not binding upon the defendant no.
1. It is strange that on one hand the defendant no.1 has relied upon observations made in the order and on the other hand he has assailed validity of the same order. One cannot approbate and reprobate at the same time. Further, if the decision of Ld. SubJudge was beyond his competence, it was for the defendant to challenge the same. It being a judicial order there is a presumption of its correctness. The order has clearly held that the suit was triable by a civil court. Unless the judgment is set aside by a higher 42/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 court, it will have to be accepted and applied. From the said judgment, the stand of the defendant no.1 of ownership of the suit property is negatived. Yet, even if the said order is ignored, the fact remains that the defendant no. 1 has not proved vesting of the suit property in Gram Sabha and as per revenue entries, the land belongs to the plaintiff no.2. If the order of Ld. SubJudge was wholly without jurisdiction as urged by defendant no.1, the defendant no.1 can also not rely on any observation made therein to urge that the land had been sold by the plaintiff no.2.
113.Also, it is strange that the aforesaid decision has been concealed by the defendant no.1. The judgment has been filed by the plaintiffs. Since the judgment is relevant to the matters in controversy, the defendant ought to have, in all fairness, produced the said judgment. Since predecessorin interest of the defendant no.1 was a party to the judgment, the defendant no.1 must have been aware of the decision. Yet, simply because the decision was against the interest of the defendant no.1, the defendant no.1 chose to withhold it from the Court. The conduct of the defendant no.1 does not appear to be honourable.
114.Ld. senior counsel for defendant no.1 has argued that as held in the said judgment, the suit property has been sold by the plaintiffs no.1 to 11 therein to Capital Housing Private Limited. The aforesaid conclusion cannot be readily drawn from the judgment. In that suit, the dispute was not whether such a sale had taken place. There was no dispute between the vendor and vendee. The dispute was between the owners and the Gram Sabha, and vesting was under challenge. Since there was no conflict of interest amongst the plaintiffs, there was no adjudication of their inter se rights. Therefore the question of whether the property in question had been sold to Capital Housing Private Limited cannot be decided on the basis of the said decision. There is no finding of that court which can operate as res judicata. In this behalf, reference is made to the case of Iftikhar Ahmed and others vs Syed Meharban Ali and others 1974 SCR (3) 464. It is laid down in the said decision that for a finding between coplaintiffs to become res judicata, there must have been a conflict of interest between the co plaintiffs in the previous litigation. In this case, since in the previous suit 43/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 there was no conflict of interest between the plaintiffs, any finding about any transaction that took place between them is not res judicata in the present suit.
115.Further, even if it is assumed that the judgment would operate as res judicata between the plaintiffs therein, it does not help the defendant no.1 since it cannot be made out from the judgment that the suit property was sold to the plaintiff no.2. The plaint of that suit has not been filed in this Court. Issue no.3 mentioned in the judgment simply states that land described in second part of para no.1 of the plaint was sold to the plaintiff no.2. Which land has been described in second part of para no.1 of that plaint has not been proved in this case and is not known. Paragraph no.1 of the judgment shows that only some of the area, and not the whole area, was sold to the plaintiff no.12 therein. Whether the suit property herein was part of the sold portion is not known. Hence, the judgment does not indicate that the suit property was sold by the plaintiff no.2 herein to Capital Housing Private Limited. The judgment does not advance the defence.
116.Also, it may be noted that the defendants in the present case have nowhere pleaded in their written statements that the suit property was transferred by the plaintiff no.2 to Capital Housing Private Limited. Since there is no pleading to that effect, the defendants cannot be permitted to travel beyond the pleadings and make out a new defence. In the case of Mohan Lal v. Anandibai AIR 1971 SC 2177, it was held that suits cannot be decided on pleas which have not been raised. Significantly, the defendants have not even questioned the witnesses of the plaintiffs about the said sale, during their crossexamination. The plaintiffs have not been called upon to either accept or reject the proposition of the said sale having taken place. The argument of the defendant no.1 cannot be entertained.
Contention of defendant no. 1 that plaintiffs' evidence is different from their plaint
117.Ld. Senior counsel for defendant no.1 has argued that the plaintiffs have changed their version and their evidence is at variance with their plaint. He submits that in the plaint, the plaintiffs have averred that the defendant 44/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 no.1 has been allowing people to use the suit property for holding marriages. He submits that in the affidavits of PW1 and PW3 it is stated that the defendant no. 1 has been allotting the adjoining Subhash Park for holding such events but visitors mistakenly enter into the suit property.
118.It is correct that the plaintiffs have not been able to specify with precision whether the suit property itself was booked for events, or only the adjoining park was so given. However, in my opinion, it is not necessary for them to take a stand on this point. A third party or even the person who makes a booking has no means to know the exact area which is being allotted for an event. It is common knowledge that when parks are allotted for holding events it is only the name of the park which is informed to the allottee. Its extent in terms of boundaries and area are not specified. No map or site plan is provided to the allottee. Therefore when a person is allotted say Subhash Park, he would not be aware whether the adjoining vacant land forms part thereof. He may enter the suit property thinking it is part of the park. It is not possible for the owner of the suit property to specifically state whether the suit property was subject matter of the allotment or whether only the adjoining park was so allotted and the visitor on his own entered the suit property. Also, it is the case of the defendant no.1 that it has been treating the suit property as part of Subhash Park. That being so, when Subhash Park is allotted, even the allottee is bound to be unaware of whether it includes the suit property. Therefore it is inconceivable for the plaintiffs to state with accuracy whether the defendant had allotted the suit property for events or whether people themselves entered the same without any allotment. In view thereof it is natural for the plaintiffs to dither on this point and no adverse view can be taken against them for doing so.
119.Further, it is the defendant no. 1 that has been making the allotment on bookings, and therefore its officials are the best persons to throw light on the precise extent of land so allotted. The plaintiffs are under no obligation to prove the said bookings and so their case is not affected by the said fact not being convincingly proved.
120.Also, before the defendant no. 1 can draw any advantage from such a discrepancy between the pleadings and the affidavits, it is imperative to 45/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 provide an opportunity to the witnesses to explain the same. This can be done only by drawing the attention of the witnesses to the conflicting portion in the plaint during their crossexamination, and by asking them to explain the same. Without confronting the witnesses with the relevant portion of the plaint, they do not stand contradicted, and no adverse inference can be drawn against them. This principle is laid down in Section 145 of the Evidence Act. In the case of Ramaswami v. Jagannadha Rao AIR 1962 AP 94, it was held as under:
"For one thing his attention was not drawn to this aspect of the matter while he was in the witness box in the trial court. In order to draw an adverse inference against a witness the alleged contradiction must be brought out by putting that statement to him. This is required by Sec.145 of the Indian Evidence Act."
Also, the fact as to whether the suit property is itself being allotted for events or it is simply being permitted to be used by allottees of main Subhash Park, is not relevant. The suit is based on ownership of plaintiffs and plaintiffs are trying to restrain the defendants from raising construction on the suit property. The minor inconsistency pointed out by Ld. senior counsel for defendant no.1 is not material for deciding the issues involved in the case and does not impeach the credibility of the witnesses of the plaintiffs. In this behalf, reference may be made to the case of Ramesh Chand Vs. Suresh Chand & Anr RFA No.358/2000 decided by Hon'ble High Court of Delhi on 09th April, 2012 wherein it was observed as follows:
"A civil case is decided on balance of probabilities. In every case, there may appear inconsistencies in the depositions of witnesses however, the depositions have to be taken as a whole. Minor inconsistencies which do not affect the main substance of the case, are to be taken in correct perspective along with the other evidences, including documentary evidence which is led in the case. Assuming that a witness is not stating correctly in some places does not mean that he is to be held lying generally and hence an unreliable witness. This is so because it has been repeatedly said by the Supreme Court that the doctrine Falsus in Uno, Falsus in Omnibus does not apply in India."
121.The argument of the defendant no.1 that the plaintiffs have improved their version is therefore liable to be rejected.
46/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 Use and occupation of the suit property
122.It needs to be examined as to how the suit property is being used and by whom. The plaintiffs have contended that they are in possession of the suit property. On the other hand, the defendants have contended that the defendant no.1 is in possession thereof.
123.As per the plaintiffs, the suit property comprises of vacant land. This has been stated by PW1 in his crossexamination and the witness has not been contradicted on this point. PW3 has stated in his affidavit in evidence that the suit property is being used as play ground by school children. He has, in his crossexamination, stated that he has verified possession of the plaintiff no.2 before purchasing the property. The witness has disclosed the names of schools whose children play in the suit property. Counsel for defendant no.1 has argued that there is no reason for distant schools to send children to the suit property to play. As to why children of such far off schools come to the suit property has not been asked from the witness and therefore he has not been able to explain this. Without having afforded an opportunity to the witness to explain this, the Court cannot draw any inference. The defendants have failed to impeach the credibility of the witnesses of the plaintiffs and have failed to disprove their assertion that the suit property is used as a play ground by school children with the consent of the plaintiff no.1. This shows constructive possession of the plaintiffs over the suit property.
124.The other witness of the plaintiffs is PW2 Mr. Salim Ahmed, Patwari. He proved khasra khatoni as Ex.PW2/1 and khasra girdawari as Ex.PW2/2. The aforesaid documents show that the suit property has been under the ownership and possession of the plaintiff no.2. In the case of Janandan Rai v. Mandeo Rai AIR 1997 Pat 124, it was held thus:
"About the entry in the Record of Rights the law enjoins that such entry has to be presumed to be correct; and if any body wants to show that the entry is wrong, the burden of proof lies on the person alleging the entry to be wrong."
Thus, the testimony of PW2 also points out that the plaintiffs are in possession of the suit property.
47/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05
125.As already noted above, possession of MCD has been constantly denied by the witnesses of plaintiffs. It is therefore incumbent upon the defendants to affirmatively prove their possession in their evidence. That has not been done. None of the defence witnesses have deposed that they have seen the suit property at the time of or before institution of the suit and that the suit property was, at that time, under the possession of the defendant no.1. Further, a suggestion was put by defendants to the witnesses of the plaintiff that the suit property is being maintained as a park by the horticulture department. This claim fell flat during the crossexamination of DW1 Mr. Nanak Chand. The said witness represented the horticulture department of MCD. He admitted that the function of his department was to plant trees and grass. He further admitted that there was no tree or grass on the suit property. Since there is no tree or grass, it is not understood as to how and in what manner the suit property has been maintained by the horticulture department of MCD. By simply stating in its internal records that some private land is being maintained by it does not give possession of the said land to MCD. There being no tree or grass on the suit property, obviously the officials of the defendant no.1 had not been visiting the suit property. There is therefore no reason for a third party or the plaintiffs to believe that the suit property is under the possession of MCD. Also it is relevant to note that it is not the case of the defendant that the suit property was under its lock and key at the time of institution of the suit so as to indicate its possession.
126. Further, it is admitted case of the parties that the suit property comprises of land which is bounded by a boundary wall and that has interlocking tiles. PW3 Mr. Prashant Narula, during his crossexamination, was asked as to who laid the interlocking tiles. He stated that the said tiles were laid down by the plaintiff no.2. He denied the suggestion that tiles were laid by the defendant no.1. This statement of denial has not been controverted by the defendants. The defendants have not proved that the tiles had been laid by the defendant no.1. Had tiles been laid by the defendant no.1, the defendant no.1 would have led evidence to prove this. If tiles had been laid by the defendant no.1, it would have done so either through its employees 48/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 or through a contractor. The purchase of material (if laid by itself) or the grant of tender (if got done through contractor) ought to have been proved by the defendant no.1 to show that it had laid the said tiles. The employees of the defendant no.1 involved in the laying of tiles could have been examined by the defendant no.1. Similarly, the defendant no.1 could have produced records to show that the boundary walls were got constructed by it. These are matters which could have indicated possession of defendant no.1. Yet, they have not been proved before the Court and the supporting documents have not been produced. Hence, the defendant no.1 has failed to prove that it is in possession of the suit property.
127.The defendants have contended that the suit property is being booked for holding events. As noted above, the defence witnesses have failed to prove by their oral testimony that the suit property is in the possession of defendant no.1. The fact that the suit property is being used for the purpose of holding events however stands proved by the admissions of the plaintiffs and documents placed on record by the defendant no.1.
128. The mere fact that some persons have been using the suit property for holding events, pursuant to booking by MCD, does not imply that MCD is in possession of the suit property. The said bookings are admittedly done very infrequently. Even the defendant no.1 has not been able to place on record documents showing booking of the suit property for the purpose of holding events during the four years preceding the filing of the suit. Also, the booking is done only for a couple of days. Such occupation of the suit property is intermittent and temporary, and does not qualify as "possession" as recognized by law. In the case of Rame Gowda (D) By Lrs vs M. Varadappa Naidu (D) By Lrs. & Anr., Appeal (civil) 7662 of 1997 dated 15 December, 2003, it was noted that:
"A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may reenter and re instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force."
49/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05
129.Hence, the occasional holding of events in the suit property does not imply that the suit property is under the possession of MCD. Such use of the property by public, in absence of title of MCD, is only a "stray act of trespass" which cannot be recognized or protected by law. In the context of these facts, it would be apt to refer to the decision of the Hon'ble High Court of Delhi in the case of M/s G.M. Modi Hospital & Research Centre Medical Science vs. Shankar Singh Bhandari & Ors. AIR 1996 Delhi 1. In that case, the Hon'ble High Court of Delhi held that a trespasser remaining in the property of another for a few days does not acquire "possession" in the eyes of law. Applying this principle, the mere fact that the property is used, unauthorizedly, for a few days for holding an event does not imply that the property is in the possession of the occupant or his licensor.
130.This is besides the fact that while accepting bookings, the defendant no.1 has not been issuing any document to suggest that it is the suit property which is being allotted. At the time of giving possession for holding events, MCD, as per record, has been simply allotting "Subhash Park". Nothing has been brought on the record to show that the suit property is also part of Subhash Park so as to be part of such booking and allotment. On the contrary, the testimony of DW1 Mr. Nanak Chand seems to suggest that the suit property is being mentioned as an independent unit separate from Subhash Park. He has stated, "It is correct that the suit property and Subhash Park are separated by a wall. There is no gate passage from Subhash Park to the suit property crossing the wall."
131.From the above, it is concluded that the suit property comprises of vacant land which is being used, from time to time, by school children as a playground and also by public for holding events. Such a vacant land cannot be held to be under consistent and actual physical possession of either party. The possession of such land goes with title. Reference in this behalf may be made to the case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) by L.Rs. & Ors. AIR 2008 SC 2033 wherein it was held that when the suit property comprises of vacant land, and the rival claimants plead their possession thereon, the person who proves his title must succeed. It was also held that for vacant land, title has to be examined, and the owner is 50/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 deemed to be in possession thereof. The following observation is relevant:
"But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession."
132.In the present case, the defendant no.1 has not pleaded to be owner of the suit property. The title of the plaintiff no.2 is not disputed. Even otherwise, title of the plaintiff no.2 stands established by revenue entries. Therefore, the plaintiff no.2 is the owner of the suit property and is deemed to be in possession thereof.
133.It may be noted here that the defendant no.1 has pleaded the existence of two rooms on the suit property. The said rooms, as per the photographs proved on record, are beyond the boundary of the suit property. The site plan proved by the plaintiffs as Ex.PW1/4 does not show any such rooms. PW1 Mr. Desh DeepakTyagi has stated in his testimony that the suit property comprises of vacant plot. He was not sought to be contradicted or even questioned on this assertion. No suggestion was put to him regarding the existence of rooms on the suit property. Also, the defendant did not lead any evidence in defence to contradict the assertion of the plaintiffs that the suit property, on the date of institution of the suit, comprised of vacant land. The plaintiffs have argued that some rooms may have been constructed during the pendency of the suit. The defendant no. 1 has claimed to have constructed the rooms. So it is for the defendant no. 1 to disclose the date of constructing the rooms. That has not been proved. The defendant has not led evidence to show that the rooms were existing in the suit property on the date of filing of the suit. The only witness of facts examined by the defendant no. 1 is DW1 who has simply stated that the rooms currently exist in the suit property. He has described the condition of the suit property as on the date of his deposition which is more than seven years after the filing of the suit. He has not stated the condition of the suit property as on the date of institution of the suit. Even if he had purported to 51/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 depose on the condition of the suit property (whether the rooms were constructed) before filing of the suit, that testimony would have been of no value in view of his categorical admission in his crossexamination that he has no "personal knowledge of the suit property" and that he has never visited the suit property except one day prior to his deposition. This implies that the witness had visited the suit property only on 17.09.2012 and is therefore not competent to depose whether the rooms were in existence on the suit property at any time on or before 07.03.2005 (date of institution of the suit). In this regard, reference may be made to the case of S. R. Ramaraj v. Special Court, Bombay, AIR 2003 SC 3039, wherein the Hon'ble Supreme Court held:
"An officer of Bank who had no personal knowledge of the transactions in question, and was deposing on the basis of material on record, his evidence cannot be from his knowledge and necessarily has to be hearsay."
It follows from the above that firstly DW1 has not deposed on the existence of rooms on the date of institution of the suit, and secondly even if he had deposed to that effect it would have been of no value since the witness is not competent to depose in that behalf. Also, the witness is from the horticulture department of MCD and admittedly (in crossexamination) he is only entrusted with the task of maintenance of parks. He has no role to play in the raising of constructions and is therefore not competent to depose as to when the rooms were constructed by MCD. Thus, there is no evidence to show that the rooms were in existence on the suit property on the date of institution of the suit. This is besides the fact that it is the case of defendant no. 1 itself that as per lay out plan the suit property is reserved for use as a park. That being so, if the said rooms have been constructed by defendant no. 1 as claimed by it, the same is contrary to the lay out plan and illegal and the rooms are liable to be razed down.
134.It is concluded that the rooms were not constructed on the suit property on the date of institution of the suit. The contentions of the parties are to be determined on the basis of status of the property as on the date of filing of the suit. The suit property is therefore to be treated as vacant land, and in such land "possession follows title". In the result, the suit property is in the 52/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 deemed possession of the plaintiffs.
Whether the suit is not maintainable for want of prayer for recovery of possession
135.As per order dated 21.11.2012 passed by the Ld. Predecessor of the Court, it is hereinafter examined whether it was necessary for the plaintiffs to have sought recovery of possession and whether, in absence of such prayer, the prayer for declaration can be sustained. This objection of the defendant no. 2 is essentially based on proviso of Section 34 of the Specific Relief Act, 1963. Proviso of Section 34 lays down that the Court shall not make a declaration if the plaintiff is in a position to seek further relief and yet omits to do so. The said provision makes it obligatory for the plaintiff to seek the relief consequential to the declaration. It does not mandate that a plaintiff must seek every relief that he is entitled to. A person may possess many rights but may seek, in the first instance, enforcement of only a few of them and may decide to sue for the remaining reliefs at a later point of time or not to sue for them at all. The proviso of Section 34 of the Specific Relief Act is not intended to compel the plaintiffs to seek enforcement of all his rights at the same time. If a plaintiff has made a specific prayer for a relief which he is seeking to protect through a declaration, the suit would be maintainable. The scope of proviso of Section 34 has been explained in the case of Shefali Roy Vs. Hero Jaswant Dass and others AIR 1992 All 254 in the following words:
"As far as second submission made on behalf of the respondents giving reference to the provisions of S. 34 of Specific Relief Act is concerned that suit as framed and filed simpliciter for declaration is not maintainable having not claimed other relief, is also of no help inasmuch as the words used in proviso of S. 34 are 'further relief' and 'no other relief'. Further relief must flow necessarily from the relief of declaration and if further relief is remote and is not connected in any way with the cause of action accrued in favour of the plaintiff, then there is no need to claim a further relief and the proviso to S. 34 will not be a bar."
Another decision which is relevant is of Hon'ble Gauhati High Court in the case of Laisram Aber Singh vs Smt. Yumnam Ningol Khangembam, AIR 1986 Gau 66. In that case, the plaintiff had instituted a suit for declaration of 53/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 his title and permanent injunction restraining inference with his possession. The plaintiff had claimed to be in possession of the suit property (similar to the present case). The defendant no.1 had denied that the plaintiff is in possession of the suit property. The trial court held that the plaintiff was not in possession of the suit property and yet decreed the suit in favour of the plaintiff by holding that the suit is not barred by Section 34 of the Specific Relief Act. The decision of the trial court was under
challenge. The High Court declined to interfere with the findings of the trial court that it is the defendant who is in possession of the suit property. Despite holding that the defendant is in possession, the Hon'ble High Court held that the suit is not barred by proviso of Section 34 of the Specific Relief Act for want of prayer for recovery of possession. The following passage is relevant:
"The next question is that of the suit being hit by Section 34 of the Specific Relief Act. The plaintiff sued for declaration of his title and for permanent injunction restraining the defendant from interfering with his possession. Possession having been found to have been with the defendant and not with the plaintiff the relief of injunction cannot be granted. The relief of recovery of possession was not asked for. Would the suit consequently be barred under the proviso to Section 34 of the Specific Relief Act? Under Section 34 of the Act any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in Us discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title omits to do so. The plaintiff claimed his right over the suit land against the defendant who was denying or interested to deny his title and, therefore, the plaintiff sued for declaration of his title and the Court may in its discretion make therein a declaration that the plaintiff is so entitled. However, the plaintiff was able to seek further relief than a mere declaration and he prayed for injunction and he did not omit to do so. The possession having been found to be with the defendant, this relief is not available.
12. While Mr. Priyananda submits that the suit would be hit by the proviso as the plaintiffs suit has been rendered one for mere declaration, Mr. Kulabidhu submits that the plaintiff prayed for further relief of permanent injunction and still he does not admit to have been out of possession. Therefore, the suit would not be hit by the proviso and at any rate the Court has the discretion to give the plaintiff appropriate relief under Order 7, Rule 7, C.P.C. and the relief of recovery of possession may be given to the plaintiff.
13. It is common knowledge that the object of the proviso to Section 34 of the Specific Relief Act is to prevent multiplicity of suits by preventing a person 54/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 from getting a mere declaration of right in one suit and then seeking the remedy, without which the declaration would be useless and which could have been obtained in the same suit, in another. However, the answer to the question whether it is incumbent upon the plaintiff to ask for further relief must depend on the facts of each case and such relief must also be appropriate to and necessarily consequent on the right or title asserted. It should be noted that the expression used in the proviso is not "other relief"
but "further relief". As was held in Humayun Begam v. Shah Mohammad Khan, AIR 1943 PC 94, the further relief must be a relief flowing directly and necessarily from the declaration sought and the relief appropriate to and necessarily consequent upon the right or title asserted. It does not mean every kind of relief that may possibly be prayed for, but only a relief arising from the cause of action on which the plaintiff based his suit The relief should not only be capable of being granted but of being enforced by the Court and the relief should be necessary to make the declaratory relief fruitful and should be available to the plaintiff at the time of filing of the suit and not some relief to which the plaintiff may become entitled during the pendency of the suit. Such relief should also be one which is available against the defendant and not against a third party. In the instant case on the frame of his suit the plaintiff asked for further relief of injunction which was available against the defendant at the time of institution of the suit but may not be so after the finding as to possession."
As per the aforesaid decision, even if it is held that the defendant is in possession of the suit property, the suit would not be barred by Section 34 of the Specific Relief Act.
136.In the present case, the plaintiffs have claimed to be owners and in possession of the suit property and have stated that the defendant no.1 is unauthorizedly trying to raise construction on the said property. The plaintiffs have prayed for declaration that the defendant no.1 has no right in the suit property and permanent injunction restraining the defendant no.1 from raising construction. It is not the case of the plaintiffs that the defendant no.1 has already encroached upon their property. Hence, there is no occasion for the plaintiffs to seek eviction of the defendant no.1. Even if it is assumed that the defendant no.1 has already entered the suit property, the plaintiffs may chose not to sue to recover possession (if at all it is needed) at that time and may sue only for redressal of their primary grievance by assertion of ownership rights. As held in the aforesaid decision, it is not open for the defendants to contend that if the plaintiffs have not sued for all their rights, they must not get even those which they have sued for. The defendants are not prejudiced by the plaintiffs' omission 55/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 to sue for possession. The grievance of the plaintiffs is the attempt of defendant no.1 to raise construction. The plaintiffs have sued to restrain this. This is the essential relief which the plaintiffs are interested in and are in fact seeking. They need not additionally sue for recovery of possession.
137.The contention of the defendant no.2 appears to be based on the decision of Hon'ble Supreme Court in the case of Ram Saran Vs. Ganga Devi, AIR 1972 SC 2685. The said decision was rendered in the context of a suit for only declaration and not a suit for declaration and injunction. The said decision is therefore not applicable to the facts of the case.
138.Further, it is relevant to note that this objection has not been raised by the defendant no.1. The objection is raised only by the defendant no.2 and the defendant no.2 has not led any evidence in the case. It is not the case of the defendant no.2 that it enjoys any right or interest over the suit property. The defendant no.2 has not made any attempt to show as to who is in possession of the suit property. No material has been brought on record by the defendant no.2 in support of its said objection. The objection is therefore liable to be declined.
139.Further, to sustain the objection, it needs to be proved that it is the defendant no.1 who is in possession of the suit property. If the defendant no.1 is not in possession of the suit property, then even if the plaintiffs are out of possession they cannot ask the defendant no.1 to deliver possession. In that event, no useful purpose would be served by compelling the plaintiffs to seek recovery of possession from the defendant. This proposition of law is based on the decision of Ramanuja Vs. Devanayaka, ILR 8 Mad 361, wherein it was held as under:
"Possession, whether it is of property or of an office may be regarded either as a physical fact, or in contemplation of the legal right to it, and it is in the former sense it should be understood in coming to a finding under Section 42, Specific Relief Act, as to whether the plaintiff is, or is not, able to seek further relief. It may be observed that the term relief presupposes the actual withholding of the fruit of the right of which a declaration is sought, and not its mere denial. A declaratory decree is all that a plaintiff requires when he has no need of the assistance of the Court to replace him in possession."
It was thus held that possession is required to be sought only from one who is in actual physical possession of the property. It was further held that a 56/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 suit is not barred by Section 34 of the Specific Relief Act, 1963 if the defendant is himself not in actual possession of the suit property. The aforesaid observations were quoted with approval in the case of K. Sundaresa Iyer v. Saravajana Sowkiabi Virdhi Nidhi Ltd. AIR 1939 Mad 853 and Kalyan Singh vs Vakilsingh and Ors. AIR 1990 MP 295. Similar observations were made in the case of Gyasuddin v. Allah Tala Waqf Mausuma AIR 1986 All 39 and Autolite Financiers v. S. F. Corpon. AIR 1971 Del 310.
Another decision which throws light on this aspect is that of Sunder Singh Mallah Singh Sanatan Dharam High School Trust, Indaura v. Managing Committee, Sunder Singh Mallah Singh, Rajput High School, Indaura, AIR 1938 PC 73. In that case, the plaintiff sued in respect of a school which was not in his possession and was also not in possession of the defendant. The plaintiff prayed for declaration and injunction. The Privy Council held that the defendant was not in possession of the said school and therefore could not deliver possession to the plaintiff. It was held that because of this reason, the plaintiff cannot be compelled to seek recovery of possession from the defendant and his suit is not barred by the Specific Relief Act. The following observation is relevant:
"it may be added that where it is not open to the plaintiff to pray for possession also as against the defendant, injunction is further relief within the meaning of the Proviso." (meaning the Proviso to Section 42 of the Act.)"
The said decision was quoted with approval in the case of Dukhan Ram Vs. Ram Nanda Singh AIR 1961 Pat 425.
140.It is seen from the above that if the suit property is not in possession of either the plaintiff or the defendant, the plaintiff cannot be compelled to pray for recovery of possession. One who is not in possession cannot give possession. In other words, the proviso of Section 34 can be attracted only if it is shown that the defendant no.1 is in possession of the suit property. As noted above, none of the witnesses of the defendants have validly deposed that the defendant no.1 is in possession of the suit property. DW1, being the only witness of facts, admitted that he has no personal knowledge of the suit property and that he never visited the suit property at the time of or 57/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 before institution of the suit. There is thus nothing on record to establish that the defendant no.1 is in possession of the suit property. It has also been noted above, and reasons need not be repeated, that notwithstanding use of the suit property by public for holding events and the alleged construction of rooms, it is required to be treated as vacant land. That being so, the defendant no. 1 is not deemed to be in possession thereof and the plaintiffs cannot be compelled to seek delivery of possession from the defendant no.1. Consequently, the maintainability of the suit cannot be questioned on the ground that recovery of possession has not been sought.
141.Defendant no.1 has placed reliance on the decision of Hon'ble High Court of Delhi in Som Dutt v. Sharma Devi RFA no. 198/2009 dated 25.1.2012. In that case, the Hon'ble High Court underlined the need to seek possession because the defendant had set up a rival title under registered sale deed and was in possession of the suit property. In the present case however the defendant is not in possession of the suit property, and has not set up an adverse title. Therefore the aforesaid decision is not applicable to the facts of the case.
142.In any case, the framing of prayers in a certain way is a mere technicality and ought not to impede the cause of substantial justice. In this context, the following observations from the case of Mrigendra Pritam Vikramsingh Steiner v. Jaswinder Singh, ILR (2011) 1 Del 668 are relevant:
"Moreover, it is settled that the law of procedure is not to be used in order to oust a person on a technical ground from getting a rights of a party on merits adjudicated by the competent court. In other words, the technicality of law should not deter the Court from passing the orders on merits of the case or proceedings towards the resolution of the matter on merits rather than get bogged down by the technicalities."
143.For the aforesaid reasons, it follows that the present suit is not barred for want of prayer for recovery of possession.
Invalid institution of the suit by plaintiff no.1
144.Ld. senior counsel for defendant no.1 has argued that the suit has not been properly instituted by the plaintiff no.1. He has argued that the plaintiff no.1 has not signed the plaint and on his behalf his attorney Mr. 58/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 Sanjay Kumar had signed the same and his power of attorney has not been proved in accordance with law. It is contended that for this reason the suit must be dismissed.
145.Issues were framed by order dated 09.12.2005 passed by Ld. Predecessor of the Court. Perusal of the issues shows that no issue has been framed regarding the manner of institution of the suit, regarding absence of signatures of the plaintiff no.1 on the plaint or concerning the competence or authorization of the attorney to sign the plaint. In the case of Bachhaj Nahar v. Nilima Mandal AIR 2009 SC 1103, the Hon'ble Supreme Court cautioned against allowing parties to raise new defences which are not taken in pleadings, and for which no issues have been framed. It was observed:
"The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take.
10. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief."
Since in the present case no issue has been framed regarding invalid institution of the suit, this objection need not be decided. The written statements of defendants reveal that they had not objected to the maintainability of the suit on the ground of want of valid authorization of attorney. Since there is no pleading to that effect, issue was rightly not framed by the Ld. Predecessor of the Court. At the conclusion of trial, the defendants cannot be permitted to raise a new objection taking the plaintiffs by surprise. Had the objection been raised in the written 59/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 statement, the plaintiffs would have been aware thereof and may have taken steps to prove their stand during trial but since no such issue has been framed, an adverse finding cannot be given to the detriment of the plaintiffs.
It is also relevant to note that in the order dated 09.12.2005 by which issues were framed, it is recorded that no other issue had arisen or was "pressed". The said observation shows that the defendant no.1 did not ever press his objection to the institution of the suit through attorney. Since the objection was not pressed, issue was rightly not framed. The defendant no.1 cannot therefore be permitted to canvas an issue which he did not press.
146.Notwithstanding the above, since Ld. Senior counsel for defendant no.1 has addressed detailed arguments on this point, the merits of the objection are evaluated.
147.There are two plaintiffs in the case. Mr. Prashant Narula is plaintiff no.1 whereas Mr. Jai Prakash Tyagi is plaintiff no.2. The plaint has been signed by Mr. Jai Prakash Tyagi who is the plaintiff no.2 and by Mr. Sanjay Kumar who has purported to sign as attorney of the plaintiff no.1. Since the plaintiff no.2 has signed the plaint himself, no fault can be found with the manner of institution of the suit by him. The contention of the defendant no.1 is that the suit cannot be treated to be on behalf of the plaintiff no.1 since the plaint does not bear the signatures of the plaintiff no.1. To appreciate this contention reference is made to Order 6 Rule 14 of Code of Civil Procedure. The said provision prescribes that a pleading has to be signed either by a party or by his duly authorized representative. In this case, it is not the plaintiff no.1 but his representative who has signed the plaint on his behalf. It must therefore be seen whether the said representative was duly authorized by the plaintiff no.1 to sign the plaint.
148.Mr. Sanjay Kumar has signed the plaint on behalf of the plaintiff no.1 on the strength of power of attorney which has been identified and proved as Ex.PW1/1. On the basis of the said power of attorney, it is inferred that the suit was rightly signed by the attorney and provisions of Order 6 Rule 14 of Code of Civil Procedure, 1908 stand complied with.
60/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05
149.Counsel for defendant no.1 has challenged the validity and genuineness of the power of attorney on two counts:
I. That the power of attorney is not notarized and therefore does not draw presumption under Section 85 of the Evidence Act. II. That the power of attorney is different from another copy of power of attorney lying on the judicial record.
These contentions are evaluated hereinafter.
I. Absence of notarization of power of attorney
150.The contention of the defendant no.1 that the power of attorney Ex.PW1/1 has not been authenticated by notary is correct. The consequence of absence of authentication is assessed herein.
151.A power of attorney is a document which records the fact that a person has authorized someone else to perform a certain act on behalf of the former. At the outset, the following fundamental principles are required to be acknowledged:
a. A power of attorney is not a compulsorily registrable document (Syed Abdul Khader v. Rami Reddy and ors. AIR 1979 SC 553). Hence, even if the power of attorney is not registered, it would still be admissible in evidence and can be relied upon.
b. Unlike Wills, a power of attorney is not compulsorily required to be attested by witnesses. Hence, a power of attorney is not required to be proved as per the special procedure laid down in Sections 68 to 71 of the Evidence Act. Any of the persons who had signed it can prove it (Karuppiah v. Muthukaruppan AIR 1975 Mad 221).
c. A power of attorney is also not required to be compulsorily notarized. There is no law which makes it mandatory for a power of attorney to be executed before a notary or to be attested by a notary. Hence, a power of attorney which is not attested by a notary is also a valid and admissible 61/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 document. The absence of notarization does not imply that the document itself was never signed by the executant. In the case of Grafitek International vs K.K. Kaura and Ors. 2002 (62) DRJ 72, the Hon'ble High Court of Delhi held as under:
"Merely because the power of attorney is not duly notarised does not mean that the concerned person was not authorised to institute the suit. Notarization raises presumption as to its authentication and no more. Notarisation of power of attorney is a matter of procedure and raises the presumption of authority of the person to institute the suit. In other words it does not mean that power of attorney executed in favor of a particular person but not duly notarised does not confer power upon the person to institute the suit."
In case of Jugraj Singh and Others vs. Jaswant Singh and others AIR 1967 P & H 345, the Hon'ble Punjab and Haryana High Court held that a power of attorney is not compulsorily required to be notarized and that even if there is no proper notarization of the document, it does not affect the validity of the document. It was observed as under:
"As regards the power of attorney, Exhibit P/2, learned counsel for the appellants could not point out any law under which it was necessary that it should have been executed before or authenticated by a Notary Public or any authority mentioned in Section 85 of the Evidence Act."
The only purpose served by getting a power of attorney authenticated by notary is to draw a presumption of its due execution under Section 85 of the Evidence Act, 1872. In other words, a notarized power of attorney is presumed to be genuine and valid. As a corollary, a power of attorney which is not authenticated simply does not attract the presumption and has to be proved as per law. In the case of Syndicate Bank vs. S.A. Trading Corporation and Ors. ILR 1991 Delhi 643, it was noted:
"In case the person who has conferred the powerofattomey has not got it executed, so as to enable him to raise the presumption which may be raised in terms of section 85 of the Evidence Act, then he is left with no option, but to prove the same in accordance with law."
In the case of Citibank N.A. vs. Juggilal Kamlapat Jute Mills Co. AIR 1982 Delhi 487, it was held as follows:
"In the absence of any provision contained in s. 85 of the Evidence Act, any party to a suit, etc., relying on a power of attorney would have to prove it like any other document by producing in the witnessbox the executant of 62/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 the document, or the person in whose presence it was so executed, or the person acquainted with the signatures of the executant, etc., as the case may be."
As noted above, even if aid is not taken of Section 85 of Evidence Act it does not imply that the document is inadmissible and the only consequence is that anybody conversant with the facts has to appear and prove it.
152.Had the present power of attorney been authenticated by a notary, there would have been no requirement of proof of its execution. Instead, onus would have been on the defendant no.1 to prove that the document was not so executed. This advantage of presumption is not available to the plaintiffs in the present case since the power of attorney herein has not been authenticated by a notary. The natural consequence is that the plaintiffs have to prove the execution of the document by a person in whose presence it was executed. In the present case, the power of attorney has been duly identified by PW1 Mr. Desh Deepak Tyagi as Ex.PW1/1. At the time of proving the document, the original document was seen by the Court and was returned. Hence, the document was proved by leading primary evidence. The witness who has proved the document i.e. PW1 has specifically stated in his affidavit that the document was executed in his presence. The said witness is therefore competent to prove the document. The manner and mode of proof of the document is in accordance with the Evidence Act. The defendants did not raise any objection to the mode of proof of the document at the time when it was being marked as an exhibit. It is settled law if objection to the mode of proof is not raised at the time of marking of exhibit, it cannot be raised at any later stage. In this behalf, reference is made to the decision of Hon'ble Supreme Court in the case of Dayamathi Bai v. K. M. Shaffi AIR 2004 SC 4082. Having not objected to the mode of proof, the defendant cannot be permitted to agitate the same at this stage. There is no infirmity in proving the said document. It is relevant to note that in the crossexamination of PW1 too, the defendants did not question him regarding the manner and mode of proof of the document, or its validity. No suggestion has been put to PW1 that the document has not 63/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 been executed in his presence. It appears that the defendants have accepted the stand of the plaintiffs that the document was indeed executed in presence of PW1. PW1 has duly proved the said document. Hence, the absence of authentication of the document by a notary is of no consequence.
153.Ld. Senior Counsel for defendant no. 1 has relied upon the case of M/s Birla DLW Ltd. vs. M/s Prem Engineering Works 77 (1999) DLT 171 (DB). In that case, it was held by Hon'ble High Court of Delhi that the power of attorney under consideration was not executed before a notary and therefore presumption under Section 85 of the Evidence Act cannot be raised. The said judgment is distinguishable. Firstly, in that case, there was a specific issue as to whether the suit has been instituted by an authorized person. There is no such issue in the present case and therefore as noted above, the said question is not required to be decided herein. Secondly, in that case the witness who ought to prove the power of attorney did not at all dispose about familiarity with the signatures of the executant of the attorney. He also did not depose that the power of attorney had been executed in his presence. This is evident from the following observation made in the case:
"Appellant has neither produced on record the Resolution of the Board of Directors which authorised Shri M.D. Poddar to execute the Power of Attorney, nor Shri M.D. Poddar or Shri G.K. Sureka appeared as witnesses to prove the execution of the said Power of Attorney. Mr. Saraogi, on behalf of the plaintiff, in his statement, did not depose anything about either being familiar with the signatures of Shri Poddar or the said Power of Attorney having been executed by Shri Poddar in his presence."
Since there was no valid evidence to prove the execution of power of attorney, the court had to decide the said issue on the basis of presumptions. And as there was no proper authentication by the notary, the presumption could not be drawn and accordingly the Court concluded that the suit had not been instituted through an authorized person. In this case, however, there is no requirement to depend on presumption under Section 85 of the Evidence Act since there is valid evidence to prove the power of attorney by a person who has expressly stated that the document was executed in his presence. Hence, the aforesaid decision is not 64/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 applicable to the facts of the present case.
154.Ld. Senior Counsel for defendant no.1 has further tried to support his arguments by relying on the case of Escort Limited and Electric Construction & ors. Vs. Jagjit Electric Works AIR 1984 Del 363. The said decision is also not applicable to the facts of the present case. Firstly, in that case too, a specific issue had been framed regarding authorization of attorney to file the suit, unlike the present case. Secondly, the Court in that case only concluded that the presumption under Section 85 of the Evidence Act was not available to the plaintiff. The Court did not hold that a power of attorney which is not authenticated by a notary is invalid. The suit was dismissed because neither presumption under Section 85 of the Evidence Act was available to the plaintiff nor was there any other evidence to prove the power of attorney. In the present case, there is evidence to prove the power of attorney and therefore it cannot be concluded that the power of attorney is invalid. Rather the said decision favours the plaintiffs. Paragraph no.15 of the said decision makes it amply clear that authentication of notary is not necessary for validity of the power of attorney. It merely raises a presumption. The relevant observation is as follows:
"The next question is, can this power of attorney be proved in any other way? And the answer is that even if a power of attorney is not executed before Notary Public and is not authenticated by a Notary Public, it can still be proved by establishing due execution by producing the necessary witnessed as well as the resolution of the Board of Directors of the company concerning the same. Unfortunately, there is no evidence on the record of the present case to come to the conclusion that the power of attorney was duly executed or that it was supported by a resolution of the Board of Directors."
The aforesaid observation shows that even in absence of authentication by notary a power of attorney can be proved by a competent witness. In the present case, the power of attorney has been proved by the testimony of PW1 who has not only identified the same but stated that the same has been executed in his presence. Hence, the decision is of no help to the defendant no. 1.
155.Ld. Senior counsel for defendant no. 1 has also cited the decision of Escorts Limited vs. Sai Autos & ors. 42 (1990) DLT 446 in his defence. The 65/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 said judgment is not applicable to the facts of the present case. In that case, an exparte suit was decided by the Hon'ble High Court of Delhi. The suit had been instituted on the basis of power of attorney which was not properly authenticated. The Hon'ble High Court of Delhi noted that the benefit of Section 85 of the Evidence Act was not available to the plaintiff. The Court did not conclude the matter at that stage and rather chose to proceed and examine whether the power of attorney had been duly proved. The Court relied upon the resolution of Board of Directors of the company and concluded that the suit had been instituted through an authorized person. The decision is an authority on the point that even in absence of authentication of power of attorney by a notary, it can be concluded that the suit had been instituted through an authorized person, as is proposed to be done here.
156.Ld. Senior counsel for defendant no. 1 also placed reliance on the decision of Enfield India Limited vs. Union of India 55 (1994) DLT 753. In that case too, there was a specific issue as to whether the suit has been instituted by an authorized person. There is no such issue in the present case. Moreover, in that case, the suit was instituted through a person who had been authorized to do so not by the plaintiff but by an intermediary on behalf of the plaintiff. The intermediary was not proved to have been competent to further authorize the attorney. It is on that ground that the suit was held to be not instituted through an authorized person. The Court did not hold that a power of attorney which is not notarized is invalid. Hence the said decision is not applicable to the facts of the present case.
157.Since evidence has been led by the plaintiffs, it is no longer necessary for the plaintiffs to rely on the presumption under Section 85 of the Evidence Act. Hence, the absence of authentication by notary is not fatal to the case of the plaintiffs.
158.It is inferred that the plaintiffs have succeeded in proving the power of attorney Ex. PW1/1 and the same is valid despite the fact that it is not authenticated by a notary.
66/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 II. Comparison of GPA Ex.PW1/A with another copy of power of attorney on the judicial record
159.Counsel for defendant no.1 has argued that the power of attorney Ex.PW1/1 is not a genuine document. He has tried to draw a comparison of the document with photocopy of a power of attorney which is on the judicial record and in which the signatures of one of the witnesses is amiss.
160.The said plea of counsel for defendant no.1 cannot be accepted for the following reasons:
a. The genuineness of the power of attorney is not a disputed question of fact so as to require proof. The defendants have not, in their pleadings, challenged the genuineness of the document. A fact which is admitted, need not be proved (Section 58 of Indian Evidence Act).
In this behalf, reference is made to the case of Metropolis Travels & Resorts v. Sumit Kalra (2002) 64 DRJ 72, wherein the Hon'ble High Court of Delhi held as under:
"Law as we all know postulates that an admitted document need not be proved. There was in fact nothing for the appellant to prove an admitted document."
In questioning the genuineness of the power of attorney, the defendant no. 1 is attempting to make out a new case altogether and to travel beyond pleadings. In the case of Mohan Lal v. Anandibai AIR 1971 SC 2177, it was held:
"When there is no pleading in respect of fraud or antedating of document and no evidence is led to meet such pleas, the Court cannot on the basis of the plea raised for the first time during arguments record any finding."
Since genuineness of the document is not in dispute, there is no requirement for the plaintiff to prove the same.
b. Further, even if it is assumed that the genuineness of the document is a disputed question of fact, the said genuineness has been proved by the plaintiff by leading evidence. PW1 has unequivocally asserted the existence and execution of the document. The original document was produced for the perusal of the court. No question has been put to PW1 during his cross 67/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 examination to the effect that the signatures on the document Ex. PW1/1 are not genuine. The genuineness of the document stands proved by the uncontroverted testimony of PW1. The defendants have also not questioned the plaintiff no. 1/PW3 as to whether he had signed the said power of attorney Ex. PW1/1. Also, the defendants have not led any evidence to prove that the signatures are forged. The plaintiffs have succeeded in proving the genuineness of the power of attorney.
c. The document with which the GPA Ex.PW1/1 is sought to be compared has not been identified or proved. Reference to the said document has not been made by any witness. Simply placing the same on record does not make it admissible so as to be considered by the Court. The document ought to have been identified or at least referred to in the testimony of the witnesses before the same can be read in evidence. It was incumbent upon the plaintiff to have questioned the plaintiffs' witnesses on the said document. That not having been done, the court cannot take into consideration the document or draw comparisons. The document with which comparison is sought to be made is a mere photocopy. Its original has not been produced. There is nothing to suggest that the said photocopy is a genuine document whereas Ex. PW1/1 is not.
d. PW1 identified the power of attorney Ex.PW1/1 in evidence. If there was any doubt on the genuineness of the document, PW1 should have been questioned on that count. His testimony has however remained unrebutted and unchallenged regarding the said power of attorney. Failure to cross examine implies acceptance of correctness of testimony. Also, the defendants did not endeavour to draw the attention of PW1 to the other document which they have referred to during final arguments. The defendants ought to have brought the attention of the witness to the other document and should have provided him an opportunity to explain the discrepancy. This has not been done. Unless they afford the said opportunity, no doubt can be cast on the document.
68/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 e. Even if it is assumed that the said copy of power of attorney (which has been signed by only one witness) can be looked at by the court, its existence does not impeach the genuineness of the document Ex.PW1/1. The two documents are similar in material terms. They are almost identical except that the document Ex.PW1/1 contains signatures of both the witnesses whereas the other document contains the signatures of only one witness. It is possible that when the power of attorney was prepared and executed, after its attestation by one witness and before it could be attested by other witness it was photocopied, and the "other document" being compared is that photocopy. It is possible that after photocopying the original document, but on the same day, the other witness also attested the said document. Such a possibility could have been explained by the plaintiffs' witnesses had they been questioned. But since no such opportunity was afforded, the Court cannot draw inferences on its own. The mere fact that a document is photocopied (if at all) before its attestation by second witness does not imply that the original document is not genuine or that it was not so executed. It is not necessary for all the executants and witnesses to sign together. The law only requires that the witnesses must have seen the document being executed. The mere fact that there is a minor time gap between its execution and attestation by one witness does not affect its validity.
f. Even if it is assumed that the second witness did not sign the document at the time of its execution, or that the second witness had not seen the document being attested, that would only show that the document is validly attested by only one witness. Even that would not affect the validity of the instrument since it is not mandatorily required to be attested by two witnesses. Hence, even if attestation by the other witness is ignored it would not render the document invalid. This is besides the fact that the defendant no.1 has, in its written statement, not questioned the genuineness of the document. The doubt being created now has no basis in the written statement or in the testimony of the witnesses, and is a mere conjecture.
69/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05
161. In view of the aforesaid reasons, it is concluded that the power of attorney Ex. PW1/1 is genuine and valid. It has been proved as per law and can be relied upon. In light of the same, the objection of the defendant no.1 that the suit has not been instituted through an authorized person is rejected.
Conclusion
162.It is inferred that the suit property is under the ownership and possession of the plaintiffs. The defendant no.1 does not have any right or interest in the suit property. The issue no.1 is decided in favour of the plaintiffs and against the defendants.
163.Since the defendant no.1 has no right or interest over the suit property, it cannot raise any construction thereon. The plaintiffs are entitled to restrain the defendant no.1 from acting in breach of this obligation. The plaintiffs are therefore entitled to grant of permanent injunction restraining the defendant no.1 from raising construction on the suit property. The issue no. 2 is decided in favour of the plaintiffs and against the defendants.
164.I am conscious of the fact that this conclusion would deprive the defendant no.1 of the use of the suit property. However the mere fact that the defendant no.1 is a public body does not entitle it to usurp the land of individuals even if lying vacant and unused. The right to property is a constitutional right and must be safeguarded against encroachments even by the State. Reference is made to the following observations of Hon'ble Supreme Court in the case of State of Haryana Vs. Mukesh Kumar (2011) 10 SCC 404:
"If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country. It is indeed a very disturbing and dangerous trend. In our considered view, it must be arrested without further loss of time in the larger public interest."
In the case of Chairman, Indore Vikas Pradhikaran Vs. M/s Pure Industrial Cock & Chem. Ltd. & Ors. Appeal (civil) 2530 of 2007 decided on 15.05.2007, the Hon'ble Supreme Court held that the right of property is not only a constitutional right but also a human right. It was underlined that no 70/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 person shall be deprived of his property save in accordance with law. A similar view was expressed by Hon'ble Supreme Court in the case of K. T. Plantation Vs. State of Karnataka (2011) 9 SCC 1.
In the case of Urban Improvement Trust Vs. Mohan Lal ( 2010) 1 SCC 512, the Hon'ble Supreme Court held that statutory authorities should be model litigants and must not resort to profiteering or unjust enrichment at the cost of the public.
It seems that the dicta of Hon'ble Supreme Court has been overlooked by the defendants.
Issue no.3 "Whether the plaintiff has valued his suit correctly for the purpose of court fees and jurisdiction? (Onus on both)"
165. The present suit has been filed with the prayers of declaration and injunction. The plaintiffs have prayed for a declaration that the defendant enjoys no right over the suit property and for injunction restraining the defendant no.1 from raising construction over the suit property.
166.For the purpose of valuation of the suit, it is only the plaint that has to be considered and its averments are deemed to be true and correct. The defence of the defendants cannot be looked into. This proposition was laid down in the case of Sathappa Chettiar v. Ramanathan Chettiar AIR 1958 SC 245 wherein it was observed as follows:
"The question of court fees must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on the merits."
Similar observations were made in the case of Neelavanthi Vs. N. Natarajan AIR 1980 SC 691. Hence, for ascertaining whether the suit has been correctly valued, only the averments made in the plaint have to be seen. In the present case, the plaintiffs have averred that they are owners of the property and yet the defendant no.1 is allowing people to use the suit property and have also tried to raise construction on the suit property. The pleadings made in the plaint do not suggest any dispute over title of the suit property. Since there was no title dispute, it was not necessary for the 71/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 plaintiffs to make a prayer for declaration that the defendant has no right or interest over the suit property. The plaintiffs could have sued for injunction alone.
167.The mere couching of the suit as one for declaration and injunction does not imply that the suit has to be valued as such. In the case of Shamsher Singh v. Rajinder Prashad, AIR 1973 SC 2384 it was held that the court is not bound by the form of the suit of the plaintiff and is obliged to ascertain the substantive relief sought. In the case of Memoona Bi v. Municipal Corporation of Delhi, 1974 RLR 198, the Hon'ble High Court of Delhi held that the true character of the plaint must be seen. It was further held that a mere injunction could be granted even though a declaration too was needlessly prayed for. In the case of Interads Advertising (P) Ltd. vs. Palmex Enterprises & Ors. 106 (2003) DLT 1, the Hon'ble High Court of Delhi dealt with a suit for declaration and injunction. Holding that the prayer for declaration was a surplusage and liable to be ignored, the court treated the suit as one for injunction alone. In the case of Nanak Chand & ors. V. Raja Rakesh & ors. CS(OS) 1177/2007 decided on July 06, 2012, the Hon'ble High Court of Delhi observed:
"It is also trite that if on a reading of the plaint in a holistic manner, it is evident that the substance of the prayers are for injunctory relief, then even though the suit is styled as one for the grant of declaration, the suit would be treated as purely a suit for injunction."
Similar observations were made in the cases of Times Properties v. Delhi Development Authority 1985 RLR 398, Mahant Purushottam Dass v. Narain AIR 1978 Delhi 114 and Harchand Singh v. Dalip Singh, AIR 1965 Punjab
468. The principle which may be culled out from the aforesaid decisions is that even if a suit is couched as one for declaration and injunction, if declaration is not necessary for grant of injunction it is liable to be ignored and the suit shall be treated as one for injunction alone. Therefore, it needs to be ascertained whether in the present case declaration is necessary for grant of injunction or could the suit have been filed for injunction alone. If declaration is necessary, the suit would be treated as one for declaration and consequential relief. If not, the suit would be treated as one for 72/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 injunction alone and would be accordingly valued.
168.The plaint does not state that the defendant no. 1 had asserted its ownership over the suit property. Since the defendant no.1 had not made any assertion of ownership, there was no reason for the plaintiffs to, in the original plaint, pray for declaration that the defendant no.1 has no right over the suit property. A declaration is required in situations contemplated by Section 34 of the Specific Relief Act, 1963. Section 34 of the Specific Relief Act provides that a suit for declaration may be instituted against any person denying or interested to deny one's title to any character or right. Since in the present case, going by the plaint, the defendant was not asserting ownership over the suit property, there was no requirement for the plaintiff to seek declaration of absence of defendant's title. The said prayer made in the plaint is thus a mere surplusage. The prayer is liable to be ignored and the suit is required to be treated as one for injunction alone.
169.Even if it is assumed that for determining valuation the defence is also to be looked into, the result would be the same. As has been noted while deciding issues no.1 and 2, defendant has not specifically denied the title of the plaintiffs. The defendant no. 1 has not set up title in itself. The plaintiffs have pleaded that they are in possession of the suit property, and that plaintiff no. 2 is the recorded bhumidar of the suit property. The plaint is accompanied by copy of khatoni and khasra girdawari which demonstrate that indeed the plaintiff no. 2 is owner and in possession of the suit property. The defendant has not controverted the veracity of the revenue entries. The documents and pleadings clearly show that the defendant has no title over the suit property. Hence, there was no need for the plaintiff to seek a declaration that the defendant no. 1 has no title over the property. In holding so, I draw support from the decision of Hon'ble High Court of Delhi in Nanak Chand & ors. v. Raja Rakesh & ors. CS(OS) 1177/2007 decided on July 06, 2012 wherein it was held that there is no need for a plaintiff to seek declaration of title and he can sue for injunction simplicitor if he is in possession of the suit property and if he is the recorded bhumidar of the property even though his title may be disputed by the defendant. The Hon'ble High Court relied upon a decision of Madras High Court reported 73/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 in Muthayyan Swaminatha Sastrial vs. S. Narayan Swami Sastrial AIR 1936 Madras 936 wherein it was held that where the plaintiffs are in lawful possession of the suit properties, they are entitled to sue for a mere injunction. The following extract was quoted:
"3. On the merits, I have no doubt that the learned Subordinate Judge was right in holding that the suit as originally framed was maintainable. It is true that in establishing their right to have an injunction against the defendants, the plaintiffs will have to prove that plaintiffs 1 to 4 and defendant 10 were properly appointed managers in respect of the properties and that the other plaintiffs are the lessees under them. But it does not follow from this that the plaintiffs are suing for a declaration of the title of plaintiffs 1 to 4 and defendant 10 as managers. Their allegation is that they are in lawful possession of the properties and that their possession is threatened to be interfered with by the defendants. On these allegations, they were perfectly entitled to sue for a mere injunction. The learned District Munsif was, therefore, wrong in ordering the amendment of the plaint."
Such a suit was held by Hon'ble High Court of Delhi to be falling in para 11.1 of the judgment of Hon'ble Supreme Court in Anathula Sudhakar vs. P. Buchi Reddy (Dead) by L.Rs. & Ors. AIR 2008 SC 2033, which states as under:
"11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner."
In the case of Anathula Sudhakar (ibid), the Hon'ble Supreme Court held that mere denial of title by the defendant would not make the plaintiff liable to seek declaration. The denial of title is required to be supported by material which could cast doubt on the claim of the plaintiff. The following extract is relevant:
"We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for 74/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 the plaintiff to sue for declaration and a suit for injunction may be sufficient."
In the case of Nanak Chand & ors. V. Raja Rakesh & ors. CS(OS) 1177/2007 decided on July 06, 2012, it was held by Hon'ble High Court of Delhi that it is not necessary for a plaintiff seeking injunction to pray for declaration of title if his name is mutated in revenue records, even though the defendant may be denying the title and possession of the plaintiff. In the present case, there is no dispute over title. The defendant has not set up title in itself, and is yet allegedly trying to raise construction. Even if it is assumed that the defendant no.1 is denying the title of plaintiffs, that denial is feeble (unsupported by documents and shorn of explanation of source of title) and therefore it does not raise a cloud over the title of the plaintiffs. For restraining the defendant there is no requirement of seeking declaration of title. The prayer for declaration is therefore needless and liable to be ignored.
170.Further, while deciding issues no. 1 and 2, it has been held that the suit property comprises of vacant land, which cannot be said to be in actual physical possession of either party. Reference may be made to the case of Anathula Sudhakar (ibid) wherein it was held that when the suit property comprises of vacant land, and the rival claimants plead their possession thereon, the person who proves his title must succeed. It was also held that for vacant land, a suit for injunction alone is sufficient and one need not sue for declaration of title too simply because possession of vacant land goes with title. It is only in complicated cases that a plaintiff has to be called upon to sue for declaration of title and injunction. The following observation is relevant:
"But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession."
75/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 In the present case, the defendant no.1 has not pleaded to be owner of the suit property. The title of the plaintiff no.2 is not disputed. Even otherwise, title of the plaintiff no.2 stands established by revenue entries. Therefore, this case does not involve any complicated question of ownership and resultantly the plaintiffs need not sue for declaration of title. A suit for injunction alone is sufficient and therefore the prayer for declaration may be ignored as being surplusage.
171.For the aforesaid reasons, the prayer of declaration of title made in the plaint is unnecessary. The prayer is liable to be ignored and the suit is required to be treated as one for injunction alone. A suit for injunction alone is to be valued as per Section 7 (iv) (d) of the Court Fees Act. The said provision states that such suits are to be valued as per the choice of the plaintiff. The Hon'ble High Court of Delhi has, in the case of Sheila Devi Vs. Shri Kishan Lal ILR (1974) II Delhi 491, held that the said choice of the plaintiff is absolute and unfettered. The following passage is relevant:
"A plain reading of paragraph (iv) of Section 7 shows that it requires the plaintiff in any of the suits mentioned in the various clauses thereof to state the amount at which "he values the relief sought", and the amount of court fee payable to be computed according to the said amount at which "the relief sought is valued" in the plaint. It is implicit in it, and it is also not disputed, that the paragraph requires the plaintiff himself to value the relief he seeks. The only question for consideration is whether the plaintiff has the right to place any valuation that he likes. The paragraph does not by itself impose any restriction or condition as regards the valuation by the plaintiff. When the statutory provision itself has not imposed any such restriction or condition, it would not be proper, in our opinion, for a Court to introduce such a restriction or condition into the section. The plain language of the provision gives an unrestricted choice to the plaintiff to value the relief. It would not, therefore, be proper for a Court to say that the relief was undervalued and to correct the said valuation invoking the general power mentioned in Order VII Rule ll(b) or the inherent power saved by Section 151 of the Code of Civil Procedure. The provision in paragraph (iv) of Section 7 of the Courtfees Act which gives a free hand to the plaintiff to place any valuation that he likes and does not place/any restriction or condition has, in our opinion, so far as the suits mentioned in that paragraph are concerned, the effect of taking away the general power of the Court under Order VII Rule 11(b) of the Code of Civil Procedure and the inherent power to correct an undervaluation. The general power and the inherent power stand modified by the special statutory provision in Section 7(iv) of the Courtfees Act. In other words, in, our opinion, paragraph (iv) of Section 7 of the Courtfees Act gives a right to the plaintiff to place any valuation that he likes on the relief he seeks, and the Court has no power to interfere with the plaintiff's 76/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 valuation."
In the case of Commercial Aviation and Travel Company and Ors. Vs. Vimla Panna Lal (1988) 3 SCC 423, the Hon'ble Supreme Court examined the discretion of the plaintiff to value his suit as per his wishes. It was observed as under:
"So far as suits coming under Section 7(iv) of the Court Fees Act are concerned, the legislature has left the question of valuation of the relief sought in the plaint or memorandum of appeal to the plaintiff. The reason is obvious. The suits which are mentioned under Section 7(iv) are of such nature that it is difficult to lay down any standard of valuation. Indeed, the legislature has not laid down any standard of valuation in the Court Fees Act. Under Section 9 of the Suits Valuation Act, the High Court may, with the previous sanction of the State Government, frame rules for the valuation of suits referred to in Section 7(iv) of the Court Fees Act. Although the Punjab High Court has framed rules under Section 9 of the Suits Valuation Act which are applicable to the Union Territory of Delhi, such rules do not lay down any standard of valuation with regard to suits coming under Section 7(iv) of the Court Fees Act."
Hence, the value of the suit accorded by the plaintiff cannot be called into question.
172.Further, for deciding valuation of the suit, it may be examined whether the relief of injunction is consequential to the declaration sought so as to bring the suit within the purview of Section 7(iv) (c) of the Court Fees Act. The decision of Hon'ble High Court of Delhi in the case of Bharat Bhushan Sabharwal vs. Rama Bhasin and others CM (M) no.1601/07 dated 16.02.2010 is relevant in this context. The facts of that case were that the plaintiff had filed a suit before the trial court for a declaration that she was the owner of the suit property and for injunction restraining the defendant from entering the said property. The defendant denied the title of the plaintiff. The defendant filed an application under Order 7 Rule 11 of Code of Civil Procedure challenging the valuation of the suit. It was urged by the defendant no.1 that the suit was one for declaration and for consequential relief and must be valued as per the value of the suit property. The defendant no. 1 also contended that the suit was essentially for recovery of possession since the plaintiff was not in possession of the property and that 77/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 such a suit has to be valued as per the value of the suit property. A similar objection has been raised in the present case too. The Hon'ble High Court of Delhi held that all suits for injunction seek the recognition and enforcement of some right and that does not imply that the plaintiff must pay court fee on the market value of the property. Further, it was noted that although the title of the plaintiff was disputed due to which the plaintiff had to sue for declaration too, yet since the plaintiff was clearly the owner of the property there was no need for her to obtain a declaration, and therefore her suit could not be treated as one for declaration and consequential relief. The following observation is relevant:
"The only grievance of the respondent no.1/plaintiff was of the defendants in the suit disputing her title and on which account declaration was claimed and of interfering in her use and occupation of the property and on which account the relief of injunction was claimed. In fact the respondent no. 1/plaintiff could have simply claimed the relief of injunction. A declaration is inherent in all claims for injunction in as much as without establishing a right or title, no injunction can be issued."
The Hon'ble High Court of Delhi concluded that the relief of injunction was not consequential to the relief of declaration. It was held that the said reliefs are disjunctive and therefore the relief of declaration has to be valued as per Article 17 (iii) of Schedule II of the Court Fees Act. The judgment is squarely applicable to the present case. In this case too, the absence of title of the defendant no.1 is so apparent that the plaintiffs need not seek a declaration to that effect. Applying the decision, it is beyond the pale of doubt that this is a suit where the prayer for injunction is not consequential to the prayer of declaration. The prayer for declaration would therefore attract only fixed fee as per Article 17 (iii) of Schedule II of the Court Fees Act (if at all) and the valuation made in the plaint of Rs.200/ is accepted to be correct. Similarly the value of the relief of injunction has to be as per Section 7 (iv) (d) of the Court Fees Act and the value accorded in the plaint at Rs.130/ is accepted as correct.
173.The defendants have urged that the plaintiffs are out of possession and so they must seek possession and value the suit as per the value of the suit property. It has already been explained above (while deciding issue nos. 1 and 2) that since the defendants are not in possession of the suit property, 78/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 the plaintiffs need not seek recovery of possession. Hence, the plaintiffs are not required to value the suit as per the value of the suit property. Yet, even if it is assumed that the plaintiffs are required to seek recovery of possession from the defendants, the fact is that they have actually not sought the said relief. Valuation of suits is not determined as per the prayers that ought to have been made. This principle of law was laid down in the case of Vishnu Pratap Sugar Works (P.) Ltd. v. Chief Inspector of Stamps, U. P. AIR 1968 SC 102, N. A. Siddiqui v. State AIR 1973 AP 13 and Chief Inspector of Stamps v. Laxmi Narain AIR 1970 All 488. In light of the aforesaid decisions, it is concluded that the prayer for recovery of possession not having been made in the plaint is not determinative of the valuation of the suit. As such, the suit is properly valued.
174.Also, though the defendants have challenged the valuation of the suit, they have not stated what should be the correct value of the suit, if not the one stated by the plaintiffs. They have also not led any evidence in support of the issue and have not proved the value of the suit property.
175.It is concluded that the suit is properly valued for the purpose of court fees and jurisdiction. The issue is decided in favour of plaintiffs and against the defendants.
Issue no.4 "Whether the plaintiff no.1 has no locus standi to file or institute the present suit? OPD."
176.The onus to prove this issue was upon the defendant no.1.
177.Ld. Senior counsel for defendant no.1 has contended that the plaintiff no. 1 has no locus standi to file the present suit. He has argued that the plaintiff no.1 is not the owner of the suit property and the agreement to sell executed by the plaintiff no.2 in favour of the plaintiff no.1, even if accompanied by delivery of possession, does not partake the character of sale deed so as to transfer title in favour of the plaintiff no.2.
178.Ld. Senior counsel for plaintiffs has argued that the suit has been filed jointly by the plaintiffs and is maintainable. He submits that the plaintiff no.1 has received possession from the plaintiff no.2 and the plaintiff no.1 79/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 can therefore institute the present suit to protect the said possession from interference by the defendant no.1.
179.Admittedly, the plaintiff no.2 has been the owner of the suit property. As noted above, the plaintiff no.2 has also been in de jure possession of the suit property. By the agreement to sell Ex.PW1/3, the plaintiff no.2 has agreed to sell the suit property to the plaintiff no.1. It is recorded in the agreement to sell that vacant possession of the suit property has been given by the plaintiff no.2 to the plaintiff no.1. The plaintiff no.2 has also acknowledged receipt of sale consideration from the plaintiff no.1.
180.The aforesaid agreement to sell does not, by itself, transfer title of the suit property in favour of the plaintiff no.1. Ld. senior counsel for defendant no. 1 has also relied upon the case of Padma Nair Vs. The Deputy Collector, Valuation and Stamp Duty and anr. AIR 1994 Bom 160 to contend that an agreement to sell merely confers right to obtain sale deed and it cannot be likened to a sale deed. There is no dispute about this proposition. The plaintiff no.1 cannot, on the strength of the said agreement, claim to be the absolute owner of the suit property. However, the agreement does record the fact that the plaintiff no.1 has been given possession of the suit property. The possession of the plaintiff no.1 is thus lawful.
181.Possession of immovable property is a legal and heritable right over the property. A person who is in possession of immovable property can be removed only by due process of law and that too only by a person who can establish a better title over the property. This right to continue in possession unless dispossessed by the true owner (or "better" owner) is known as possessory title. In this behalf reference may be made to the case of M. Kallappa Setty v. M. V. Lakshminarayana Rao AIR 1972 SC 2299, wherein it was held that a plaintiff in possession of the suit property can resist interference from a defendant who has no better title than himself and may obtain injunction restraining defendant from disturbing his possession.
Another judgment which is relevant is of Somnath Berman v. Dr. S. P. Raju AIR 1970 SC 846. In that case too, it was held that a person who is in possession of the property can be dispossessed by only the true owner. It 80/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 was further held that if a person in possession is dispossessed by a trespasser, he may recover possession from the latter even after six months of dispossession, on the basis of his possession, which is, as against the trespasser, as good as ownership. The following observation is relevant:
"According to the appellant, except in a suit under Section 9 of the Specific Relief Act, the plaintiff for succeeding in the suit, has to prove both existing title to the suit property and its possession within 12 years. We are unable to accept this contention as correct. In our opinion the possession of the plaintiff prior to 1945 is a good title against all but the true owner. The defendants who are mere trespassers cannot defeat the plaintiff's lawful possession by ousting him from the suit property. Possessory title is a good title as against everybody other than the lawful owner. In Ismail Ariff v. Mahomed Ghouse, (1893) 20 Ind App 99 (PC), the Judicial Committee came to the conclusion that a person having possessory title can get a declaration that he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession. Therein it was observed that the possession of the plaintiff was a sufficient evidence of title as owner against the defendant.
10. In Narayana Row v. Dharmachar, (1903) ILR 26 Mad 514 a bench of the Madras High Court consisting of Bhashyam Ayyangar and Moore, JJ., held that possession is, under the Indian, as under the English law, good title against all but the true owner. Section 9 of the Specific Relief Act is in no way inconsistent with the position that as against a wrongdoer, prior possession of the plaintiff, in an action of ejectment, is sufficient title, even if the suit be brought more than six months after the act of dispossession complained of and that the wrongdoer cannot successfully resist the suit by showing that the title and right to possession are in a third person."
Possession is thus akin to ownership against everybody except the true owner of the property. It is not open to a trespasser to evict a person in possession merely because the latter is not the absolute owner of the property.
182.In the case of Ramesh Chand Vs. Suresh Chand and another 2012 III AD (Delhi) 493, the Hon'ble High Court of Delhi took note of the case of Suraj Lamp and Industries Vs. State of Haryana 183 (2011) DLT 1 (SC) and yet held that there could be various rights relating to immovable property falling short of absolute ownership and such rights are also capable of being enforced and being protected. It was noted that possession of immovable property can be recovered even by persons who are not absolute owners of the property. It was observed as under:
81/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 "A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof. The facts of the present case show that the respondent no.1/plaintiff has undoubtedly better entitlement/title/rights in the suit property so as to claim possession from appellant/defendant no. 1/brother."
In other words, it is not necessary to establish that the person seeking possession is the absolute owner of the property. To recover possession, it is sufficient that he has better right over the property than the defendant. If after being dispossessed one can recover possession, applying the same analogy, the said person can also protect his dispossession in the first instance itself by suing for injunction instead of first waiting to be dispossessed and then suing for recovery of possession. A person in possession can thus duly defend his possession from interference from trespassers. In the present case, it has already been held above that the defendant no.1 has no right over the suit property. The plaintiff no.1, being in possession of the suit property, has a valid and subsisting right to protect his possession from being disturbed by the defendant no.1. The plaintiff no. 1 clearly has locus standi to file the present suit.
183.When an agreement to sell is executed, the purchaser is entitled to compel the seller to execute sale deed, to remove encumbrances and to hand over vacant possession of the property. If the vendee can compel the vendor to do the above, he may also join the vendor as a coplaintiff in such a suit by the vendor.
184.This is not a suit solely by the plaintiff no.1. The suit has been filed jointly by the plaintiffs. Hence it is the locus standi of the plaintiffs treated jointly that has to be evaluated instead of considering their cases separately. There is no conflict of interest between the plaintiffs. Even if it is held that the plaintiff no.1 has no locus standi, the suit would sustain on the basis of the standing of the plaintiff no.2. Therefore, even if it is held that the plaintiff no.1 does not have locus standi, it would not result in dismissal of the suit.
185.The issue is decided in favour of the plaintiffs and against the defendants.
82/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 Issue no.5 "Whether the suit of the plaintiff is barred under Sections 477/478 of Delhi Municipal Corporation Act? OPD."
186.The onus to prove this issue was upon the defendant no.1. The defendant no.1 has stated in its written statement that the suit is barred by the aforesaid provisions since the plaintiffs have not served statutory notice upon the defendant no.1 before filing the suit.
187.Section 477 of Delhi Municipal Corporation Act provides that a suit is not maintainable in respect of an act performed by officials of municipal corporation under the Act and in good faith. Section 477 does not relate to service of statutory notice. It has been incorrectly invoked in the present case because the ground cited by the defendant no.1 for invoking Section 477 is that statutory notice has not been served upon the defendant no.1. It is not the case of the defendant no.1 that the suit is barred by Section 477 because the acts of the officials of defendant no.1 are in good faith.
188.Further, Section 477 of Delhi Municipal Corporation Act only protects actions performed in good faith and in compliance with the provisions of the Act. The present suit is directed against an alleged trespass by defendant no. 1 into the property of the plaintiffs. The plaintiffs are not questioning any statutory action of the defendant no.1. The alleged encroachment or unauthorized use of private land is not the statutory duty (or any duty) of the defendant no.1. Hence, Section 477 of Delhi Municipal Corporation Act is not attracted in the facts of the case. Also, filing of civil suit is the ordinary remedy available to a person to keep out trespassers. If the said remedy is held to be barred by Section 477 of Delhi Municipal Corporation Act, it would imply that a person has no remedy if the trespasser is the Municipal Corporation. Such absolute protection has not been afforded to Municipal Corporation of Delhi by the aforesaid provision. Hence, the suit is not barred by Section 477 of the Delhi Municipal Corporation Act.
189.Under Section 478 (1) of the Delhi Municipal Corporation Act, the suit can be instituted against the Municipal Corporation of Delhi only after two months' prior notice is delivered to the Corporation. In the present case, 83/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 the plaintiffs have stated in the plaint that they served notice dated 07.12.2004 upon the defendant no.1. The same was reiterated by PW1 Mr. Desh Deepak Tyagi in his affidavit in evidence. The said witness identified the legal notice as Ex.PW1/5. The witness also identified a reply received from the post office as Ex.PW1/7. The said witness has not been cross examined on the point of whether such a notice was sent or whether it was duly delivered. There is nothing to suggest that the said notice Ex.PW1/5 was not sent. The postal receipt filed by the plaintiffs shows that the notice was duly dispatched on 7.12.2004 by registered post. The reply Ex.PW1/7 received from the post office shows that the said legal notice has been duly delivered in the office of the defendant no.1. The defendant no.1 has not disputed the genuineness or correctness of the said document. As per the said document, the legal notice was delivered in the office of the defendant no.1 on 08.12.2004. The suit was filed in the Court on 07.03.2005. This shows that the legal notice was served upon the defendant no.1 at least two months prior to the institution of the suit.
190.The legal notice Ex.PW1/5 dated 07.12.2004 is perused. In the said legal notice, the plaintiffs have asserted ownership of the suit property and have called upon the defendant no. 1 to desist from doing any act which is in derogation of the said ownership rights. The entire cause of action of the suit has been set out in the legal notice. The notice is even accompanied by a site plan. The notice fulfills the purpose of bringing the dispute to the notice of the defendant no.1 and affords the defendant no.1 an opportunity to resolve the same. It qualifies as a valid notice under Section 478 of the Delhi Municipal Corporation Act. Since all the ingredients are established, the suit cannot be dismissed on the ground of absence of prior statutory notice.
191.The suit is not barred by Sections 477 and 478 of the Delhi Municipal Corporation Act, 1957. The issue is decided in favour of the plaintiffs and against the defendants.
84/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 Issue no.6 "Whether the suit of the plaintiff is not maintainable in view of Order 7 Rule 3 of Code of Civil Procedure as stated in para 1 of the preliminary objections of the written statement of MCD? OPD."
192.The onus to prove this issue was upon the defendant no.1.
193.The defendant no.1 had stated in its original written statement that the suit is liable to be dismissed under Order 7 Rule 3 of Code of Civil Procedure since the site plan filed by the plaintiffs is misleading and does not specifically identify the location and number of the suit property or the name of the locality in which it is situated. It is stated that the suit property has not been properly described.
194.After issues had been framed and evidence had been led, the case was fixed for pronouncement of judgment. At that stage, the Ld. Predecessor of this Court observed by order dated 07.11.2009 that the identity of the suit property is in dispute. To ascertain the identity of the suit property, the Ld. Predecessor, by the same order, appointed a local commissioner and entrusted to him inter alia the task of identification of the suit property in the presence of the parties. He inspected the site and submitted his report. The report is accompanied by an attendance sheet and copy of a site plan, both of which are signed by representatives of the plaintiffs as well as representatives of the defendant no.1. The report shows that the local commissioner visited the property referred to by the plaintiffs as their property. The location and extent of the property stood fortified and authenticated by the visit of local commissioner in the presence of the parties. The copy of site plan which has been filed by the local commissioner along with his report and which is signed by the representatives of the parties is a true copy of the site plan filed by the plaintiffs with their plaint. The suit property was identified by the local commissioner on the basis of the site plan. Though the defendant no.1 filed objections to the report of the local commissioner, in the said objections, it did not dispute that the suit property was identified by the local commissioner in the presence of the parties. By the visit of local commissioner in the presence of the parties, the defendant became aware 85/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 of the land which is being referred to in the plaint. The defendants can thereafter not plead ignorance of the extent or location of property referred to by the plaintiffs. Even if there was inadequate description of the suit property in the plaint, the said deficiency was made good by the aforesaid physical verification.
195.After the said inspection was carried out, interestingly, the defendant no.1 filed an application under Order 6 Rule 17 of Code of Civil Procedure for permission to amend its written statement. In the said application, the defendant no.1 took the plea that the defendant was earlier misled by the description of the suit property in the plaint and on inspection by local commissioner, the defendant no.1 realized that the land being referred to by the plaintiffs is different from the land which was earlier understood by the defendant no.1 to be the suit property. The defendant no.1 stated in the application that it has now learnt of the land being referred to by the plaintiffs and on that basis, it sought to change its stand in the written statement. The application was allowed by order dated 06.01.2010 wherein the Court noted that the defendant no.1 has realized the location and identity of the suit property after the inspection by local commissioner. In the amended written statement, the defendant no.1 commented on the possession of the suit property and its ownership. It described the condition of the suit property. All the above facts show that when the amended written statement was filed, the defendant no.1 was fully aware of the location and extent of the suit property. The defendant no.1 cannot be permitted to contend in the amended written statement that it is still unaware of the extent of the suit property or that the suit property has not been correctly identified.
196.The identity of the suit property stands established by the khasra numbers mentioned in the plaint, by description of surrounding properties stated in the plaint, by the site plan filed with the plaint and further by physical inspection of the site by the parties. That being so, the plaintiffs cannot be deprived of their rights on the ground of inadequate description of the suit property.
86/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05
197.Further, although the onus to prove this issue was upon the defendant no. 1, the defendant no. 1 has not led evidence to show that the suit property which was found on physical verification does not fall under the khasra numbers stated by the plaintiffs or that it does not fall in the locality stated by the plaintiffs. Hence, it cannot be stated that the suit property is incorrectly described in the plaint.
198.Absence of municipal number of the suit property is not a ground to non suit the plaintiffs. It is the duty of the defendant no.1 to provide municipal numbers. If it does not allocate a municipal number to a property (even under the impression that it forms part of some other park), it does not imply that the property does not exist. The defendant no. 1 cannot take advantage of its own wrong / omission to provide a municipal number, to defeat the claims of the plaintiffs. It is not the case of the defendant no. 1 that there is a municipal number of the suit property and the plaintiffs have not disclosed it. Had that been the case, upon physical verification of the suit property, the defendant no.1 would have disclosed the municipal number of the suit property. Since there is no such number, the plaintiffs cannot be blamed for not providing it, particularly when they have adequately described the suit property by the site plan and have got its limits defined by a local commissioner.
199.If the property had not been identified at the time of filing of the amended written statement, it is not understood as to how the defendant no.1 asserted therein that "the suit plot is in possession of the MCD". This shows that the defendant no. 1 had indeed identified the suit property and yet raised the plea only to mislead the court.
200.The defendant no.1 has further stated in its written statement that "the suit plot is bounded with boundary walls of four feet height at two sides and boundary wall of six feet on two sides". Once there is boundary wall circumscribing the suit property, it can be easily identified and it is not open to the defendant no.1 to plead that the suit property is unidentifiable, as held by Hon'ble Supreme Court in the case of Subhaga v. Shobha (2006) 5 SCC 466.
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201.Also, it is apt to refer to the testimony of DW1 Mr. Nanak Chand. He is the main witness of the defendant no.1 on whose testimony the case of the defendant rests. DW1 has stated in his crossexamination that, "With the description stated in para 1 of the plaint, the property can be easily identified." This admission has completely demolished the plea of the defendant no. 1. In light of the said admission, it is not proper for the defendant no.1 to continue to urge that the property is inadequately described in the plaint. The objection of the defendant no.1 to the identification of the suit property is untenable.
202.Had the description of the suit property been incorrect, the defendant no. 1 would have provided the correct particulars since its officials had physically seen the property in question. Also, the defendant no.1 could have disclosed the locality in which the said property is situated, if not the one which is claimed by the plaintiff. The denial of description of the suit property is therefore not specific. Further, the defendant has not filed any site plan of the suit property. If the site plan filed by the plaintiff was incorrect, the location and extent of the suit property should have been depicted by the defendant no.1 by filing its site plan. That has not been done. There is nothing to believe the plea of the defendant no.1 that the suit property has not been correctly identified by khasra numbers or site plan.
203. For the aforesaid reasons, it is concluded that the suit is not barred by Order 7 Rule 3 of Code of Civil Procedure. The issue is decided in favour of the plaintiffs and against the defendants.
Issue No.7 "Relief."
204.In the aforesaid facts and circumstances, the suit is decreed in favour of the plaintiffs and against the defendant no.1. A decree of declaration is passed in favour of the plaintiffs declaring that the defendant no.1 has no right or interest in the land comprised in Khasra nos. 262, 258 and 217/4, Village Bharola, Delhi, as depicted in red colour in the site plan Ex.PW1/4. A decree of permanent injunction is passed in favour of the plaintiffs restraining the defendant no.1 Municipal Corporation of Delhi from raising 88/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05 construction on the said land.
Costs of the suit are awarded in favour of the plaintiffs and against the defendant no.1.
Decree sheet shall be prepared.
Announced in the open Court on 05th December 2013.
(Ashish Aggarwal) ASCJcumJSCCcumGJ NorthWest District, Rohini Courts, Delhi.
89/89 Prashant Narula & anr. Vs. MCD & anr. Suit no.117/08/05