Delhi District Court
All Residents Of vs Smt. Shail Kumari (Since Deceased) on 29 February, 2020
Saraswati Devi V. Shail Kumari & Ors.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
RCA NO.: 14/2017
UNIQUE CASE ID NO.: 110/2017
IN THE MATTER OF :
Smt. Saraswati Devi (Since Deceased)
Now represented through her
Heirs and Legal Representatives
I. Sh. Om Parkash
II. Sh. Ram Parsad
III. Sh. Ram Gopal
IV. Smt. Indu Bala
V. Smt. Jog Maya
All Residents of
995, Bhojpura, Maliwara,
Nai Sarak, Delhi110006. .... Appellants
VERSUS
Smt. Shail Kumari (Since Deceased)
RCA No. 14/2017 Page 1 of 32
Saraswati Devi V. Shail Kumari & Ors.
Now Represented through her heirs
and Legal Representatives:
1. Smt. Amarpali Rohtagi
Wife of Sh. Upendra Kumar Rohtagi
R/o 125, Bhagya Laxmi Apartments,
Sector9, Rohini, Delhi110085.
2. Smt. Anita Rohtagi (Since Deceased)
Through L.R.
Smt. Ruchi Rastogi (Daughter)
Wife of Sh. Puneet Gupta
R/o BB/49D, Janakpuri,
New Delhi110058.
3. Smt. Geeta Rohtagi
W/o Sh. Rajender Singh Rohtagi,
R/o 994, Bhojpura,
Maliwara, Nai Sarak,
Delhi110006. .... Respondents
APPEAL AGAINST THE ORDER/JUDGMENT DATED 21/03/2017 PASSED BY SH. ARUN KUMAR GARG, LD. CIVIL JUDGE (CENTRAL DISTRICT), TIS HAZARI COURTS, DELHI IN SUIT NO. 95799/16 TITLED AS SMT. SHAIL KUMARI (SINCE DECEASED) NOW REPRESENTED THROUGH HER HEIRS AND LEGAL REPRESENTATIVES VS. SMT. SARASWATI DEVI (SINCE DECEASED) NOW REPRESENTED THROUGH HER HEIRS AND LEGAL REPRESENTATIVES RCA No. 14/2017 Page 2 of 32 Saraswati Devi V. Shail Kumari & Ors.
Date of institution of the Appeal : 27/04/2017 Date on which Judgment was reserved : 25/02/2020 Date of Judgment : 29/02/2020 :: J U D G M E N T ::
1. Smt. Shail Kumari (since deceased now represented by her LRs, who are respondents in this case) was the plaintiff and Smt. Saraswati (Since deceased now represented by her LRs, who are appellants in this case) was the defendant in the suit.
The appellants and respondents are respectively referred in this Judgment according to the original status before the Ld. Trial Court. The Appellants are dissatisfied with the Judgment and Decree dated 21/03/2017 passed by the Ld. Trial Court. The Ld. Trial Court has decreed the suit of the Plaintiff.
2. Succinctly, the plaintiff had filed a Suit for declaration and perpetual injunction against the defendant interalia on the following facts:
(a) The plaintiff had acquired exclusive ownership in respect of property no. 283284 (New no.992994) Bhojpura, Maliwara, Nai Sarak, Delhi by virtue of one Will dated 05.09.1950 left by late fatherinlaw Sh. Mohan Lal Rastogi, who had purchased the same from its erstwhile owner namely Sh. Gokal Chand vide registered Sale Deed.
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(b) The Defendant is claiming to be the owner of adjacent property no. 285 (old) of which the new no. is 995999, having purchased the same from Sh. Lal Chand Rastogi, who was brotherinlaw of plaintiff and was son of predecessorininterest of plaintiff namely Sh. Mohan Lal Rastogi. The plaintiff is exclusive owner of wall, which is shown in red colour in the Site Plan annexed alongwith the plaint, in which defendant has got no right, title or interest of any nature, which is apparent from the fact that wooden karries, planks/stone slabs of property no. 994 belonging to plaintiff are rested/ kept on the said wall and the said wall is also having a number of allas (nitches), almirahs etc. on the side of plaintiff's house.
(c) The defendant has illegally and malafidely started claiming the disputed wall situated in between the aforesaid two properties belonging to the parties to the present suit, to be her exclusive property and is causing obstruction to the plaintiff in carrying out certain repairs/ replacement etc. in three rooms of ground, first and second floors of her house no. 994 shown at point L, M, N in the Site Plan and also on the terrace of her property.
(d) The defendant is threatening the plaintiff to raise construction in her property no. 995999 thereby RCA No. 14/2017 Page 4 of 32 Saraswati Devi V. Shail Kumari & Ors.
putting heavy load of 4" X 3.5" gurders on the disputed wall.
3. Succinctly, the defendant in her Written Statement has presented the following case:
(a) She had purchased old property no. 285 of which new no. are 995999, Bhojpura, Maliwara, Nai Sarak, New Delhi in August 1973, though she had been living in the said house even prior to the aforesaid date.
(b) The wall in dispute, as shown in red colour in the Site Plan forms part of her property no. 285 (old) and 995 999 (new), which is owned and possessed by defendant and as such, plaintiff has no right, title or interest of any nature, whatsoever, in any part of the suit wall and she is not in possession of any part of the said wall. She has denied that the wooden karries, planks/ stone slabs of property no. 994 are rested on the disputed wall and number of allas, almirahs of the house of plaintiff are built in the wall in dispute since time of its construction and has alleged that most of the allas/ karries as well as staircase of the house of defendant go inside the whole depth of the wall in dispute and as such, the wall forms part of house of defendant. She has, thus, prayed for dismissal of the suit of plaintiff.
4. Thereafter, Replication to the aforesaid Written Statement of defendant was filed on behalf of plaintiff, wherein, the plaintiff RCA No. 14/2017 Page 5 of 32 Saraswati Devi V. Shail Kumari & Ors.
has once again reiterated all the averments made by her in her plaint and has denied the contrary averments made by the defendant in her written statement.
5. The Ld. Trial Court vide order dated 13.12.1990 has framed the following issues:
1. Whether Sh. Mohan Lal Rastogi executed the Will dt.
05.09.1950 in respect of property no. 28384(old) and 992994 (new), Bhojpura, Maliwara, Delhi in favour of the plaintiff as alleged in para no.4 of the plaint, if so its effect? (OPP)
2. Who is the owner of the wall shown in colour red in the site plan attached with the plaint? (Onus on parties).
3. Whether the suit is property valued for the purposes of court fee and jurisdiction, if not, its effect? (OPP)
4. Whether the plaintiff is entitled for the decree for declaration and for permanent injunction as prayed by her in the plaint? (OPP)
5. Relief.
6. After examination of PW1 and PW2 in evidence, an application under Order 6 Rule 17 CPC was moved on behalf of plaintiff on 01.11.1993 seeking an amendment in paras no. 4 and 5 of the plaint, i.e. substitution of word 'Will' with the words "Deed of Settlement". Said application of plaintiff was allowed vide order dated 06.05.1994 and amended plaint filed alongwith RCA No. 14/2017 Page 6 of 32 Saraswati Devi V. Shail Kumari & Ors.
application was taken on record. Thereafter, defendant filed a fresh written statement to the amended plaint, which was substantially the same as the original Written Statement. Plaintiff has filed his replication to the amended Written Statement on 28.11.1994 and the matter was thereafter, once again fixed for PE.
7. The Plaintiff has examined one Sh. Om Prakash Goel, Architect and Valuer of PW1, who had allegedly inspected the suit property so as to ascertain as to whether the wall in dispute forms part of property no. 283284 or 285 and tendered his report Ex.PW1/2 in this regard alongwith site plan Ex.PW1/1. During his evidence, PW1 was not cross examined by counsel for defendant despite opportunities and was accordingly discharged.
Sh. Rajesh Kumar Marwah, advocate from Tis Hazari Courts, who was appointed as Local Commissioner twice vide orders dated 12.02.1990 and 23.02.1990 has been examined by plaintiff as PW2, who has tendered his reports dated 20.02.1990 and 03.03.1990 as Ex.PW2/1 and Ex.PW2/2 respectively. He has also tendered in his evidence Site Plan Ex.PW2/3 prepared by him during one of his visits to the suit property.
Smt. Geeta Rohtagi, daughter of plaintiff has thereafter examined herself as PW3 and has tendered a power of attorney MarkX purportedly executed by her mother in her RCA No. 14/2017 Page 7 of 32 Saraswati Devi V. Shail Kumari & Ors.
favour and Hindi translation of deed of settlement Mark Y in her evidence dated 27.05.1998. She has reaffirmed the stand taken by her mother in her plaint and in addition to the documents already tendered in evidence by PW1 and PW2, has relied upon a police report dated 05.08.1988 which is Ex.PW3/1. She has also been reexamined by plaintiff in terms of order dated 05.10.2001 on 18.01.2002 and during her reexamination she has tendered a GPA dated 31.07.1998 executed by her mother in her favour as Ex.PW3/1 and the original deed of settlement dated 05.09.1950 as Ex.PW3/2.
8. After closure of evidence on behalf of plaintiff, issue no.1 was corrected vide order dated 11.02.2002 so as to replace the term 'Will' in the aforesaid issue with the words "deed of settlement" and the matter was adjourned for defendant evidence.
9. Defendant has examined her son namely Sh. Om Prakash Rastogi as DW1 who has already been examined in chief on 16.05.2001 and tendered the certified copy of sale deed in respect of property no. 995999 Ex.DW1/1 and has further tendered his evidence by way of affidavit dated 13.08.2002 alongwith following documents: Ex.DW1/2: SPA executed by defendant in favour of DW1. Ex.DW1/3: Certified copy of the site plan annexed alongwith registered sale deed in respect of property no. 995999.
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10. The Ld. Trial Court has passed the impugned Judgment and decree dated 21/03/2017, whereby the suit of the plaintiff was decreed. The appellants/defendants were aggrieved from the Judgment and decree passed by the Ld. Trial Court and praying to set aside the judgment and decree dated 21.03.2017 and dismissal of the suit interalia on the following grounds and the same are more or less the arguments of the Appellants: (A) Because the Ld. Trial Court has wrongly concluded the issue no.1 in favour of the respondents holding that the Deed of Settlement, on the basis of which deceased Shail Kumari (predecessorininterest of the Respondents) claimed her title, has been duly proved on record. The said Deed of Settlement is sought to be proved by PW3 Smt. Geeta Rohtagi, who admittedly at the time of execution of the said Deed of Settlement was not even born. Under circumstances the said document could have been proved by the attesting witness of the said Deed of Settlement. Pertinently one of the attesting witness of the said Deed of Settlement namely Shri Lal Chand, who was also closely related to the Respondents was alive at the time when evidence of the Respondents was continued. For the reason best known to the Respondent, the said witness was not produced before the Court to establish the execution of the Deed of RCA No. 14/2017 Page 9 of 32 Saraswati Devi V. Shail Kumari & Ors.
Settlement. The Ld. Trial Court despite holding the said circumstances to be factually correct, failed to draw any adverse inference with regard to the mode of execution any proof of the said Deed of Settlement. The said observation, being against the settled principles of law and perverse, is liable to be setaside.
(B) Because the Ld. Trial Court, as a matter of fact, decided the Issue no.1 in favour of the Respondents holding that the Deed of Settlement being more than 30 years old there exist a presumption as regard its execution and attestation in terms of Section 90 of the Indian Evidence Act. Pertinently, it does not raise any presumption as regards to the contents of the said Deed of Settlement. Thus, the said observation is against settled principle of law in as much as in the present facts and circumstances no such presumption arises in favour of the Respondents.
(C) Because the Ld. Trial Court has also failed to consider that the limitation for seeking a decree for declaration is 3 years. As alleged by the respondents, the suit property came to be owned by them by virtue of Deed of Settlement dated 5.9.1950. The suit was filed by the respondents seeking declaration in regard to the portion owned by them by virtue of the said Deed of Settlement on 10.10.1988. Thus, the suit of the respondents being RCA No. 14/2017 Page 10 of 32 Saraswati Devi V. Shail Kumari & Ors.
barred by limitation and the same being a legal issue has been totally ignored by the Ld. court causing prejudice to the appellants.
(D) Because from the pleadings as well as documents on record, it has been clearly established that the respondents have not been able to prove their ownership with regard to the wall in question. Even in the pleading, as filed by Smt. Shail Kumari (predecessorininterest of the Respondents), it has been clearly mentioned in the plaint that property bearing Municipal no.28385 (Old) 992999 (new) Bhojpura, Maliwara, Nai Sarak, Delhi was one composite property at one time owned by L. Gokal Chand, who sold the said property to L. Mohan Lal Rastogi, son of L. Banwari Lal in two parts namely one property bearing no. 28384 (Old) 992994 (New) under one Sale Deed and other property bearing no. 285 (Old), 995999 (New) under another Sale Deed. It was further mentioned in the plaint that as a matter of fact Smt. Shail Kumari apparently is of the view that as if the wall in dispute forms part of the property of Smt. Shail Kumari. Thus, in the entire pleadings, it was not specifically mentioned or pleaded by Smt. Shail Kumar as to how and in what manner, Smt. Shail Kumari claimed herself to be the owner of the wall in dispute.
RCA No. 14/2017 Page 11 of 32Saraswati Devi V. Shail Kumari & Ors.
Nonconsideration of the said fact caused prejudice to the appellants.
(E) Because the Ld. Trial Court also failed to consider that it is a settled law that the plaintiff has to stand on her own feet to prove her case. The document, as filed by the other party, can be relied upon, however, for collateral purposes and that in such event, the entire document has to be taken into consideration and not to be dealt in piecemeal. In the present case, the Sale Deed, as filed by the Appellant in respect of her property, also mentions property of the Respondent. The Ld. Trial Court on the said basis alone and more so, relying upon only the part of the said Sale Deed Ex.DW1/1, held the respondents to the owner of the wall in dispute and decided the issue no.2 in favour of the respondents. The said observation has caused prejudice to the appellants. (F) Because the Ld. Trial Court despite coming to the conclusion that PW1 Sh. Om Prakash Goel, Architect, who appeared on behalf of the respondents, has not been able to categorically state that the wall in dispute solely and exclusively pertains to the respondents, has decided the issue no.2 in favour of the respondents. It is pertinent to mention that PW1, who prepared the Site Plan Ex.PW1/1 as well as Report Ex.PW1/2 specifically stated that as he has not seen the wall in dispute from RCA No. 14/2017 Page 12 of 32 Saraswati Devi V. Shail Kumari & Ors.
the side of the appellants, there might be another wall existing from the side of the appellants. (G) Because the Ld. Trial Court also failed to consider that Smt. Shail Kumari nowhere in the plaint or the pleadings has mentioned as regard the thickness of the wall for which the declaration has been claimed. By virtue of the impugned judgment and decree, the Ld. Trial Court has declared the respondent to be the sole and exclusive owners of the entire wall shown in colour red in the site plan. As a corollary, the house of the appellants now comprises of only three walls in as much as the respondents have been declared to be the owners of the entire fourth wall. The said decision is most irrational and illogical in as much as any house has to stand upon for walls and there cannot be a housing dwelling with three walls only.
(H) Because by virtue of the aforesaid declaration, the appellants shall at all times be at the mercy of the respondents, in as much as in case of any redevelopment of the property by the respondents or demolition of the said wall for any reason whatsoever would also cause involuntarily collapse of housing unit of the appellants comprising of 4 floors, consequently, causing serious loss of lives and money, which is not mandated under any provisions of law.
RCA No. 14/2017 Page 13 of 32Saraswati Devi V. Shail Kumari & Ors.
(I) Because the respondents have not been able to prove their case either by pleadings or evidence. The Ld. Trial Court has passed the impugned judgment and decree on the basis of principle of "touchstone of preponderance of probabilities". The said principle is not warranted to be made applicable in the present case. The said principle is an exemption to the normal rules of civil jurispondence, which stand that "it is always for the plaintiff to prove his case". However, it is only in some rare cases where there is considerable hardship to prove the fact that the said principle can be made applicable. The application of the said principle as general rule and not as an exception shall lead to a ludicrous, illogical & irrational conclusions against settled principles of law. Moreover, the Court while applying the said principle, has to justify its application in the matter. In the present case, the application of the principle of preponderance of probabilities being unfounded and without any apparent reason.
(J) Because the Ld. Trial Court has miserably failed to appreciate the true purport & intent of the Sale Deed Ex.DW1/1 filed by the appellant. In the said Sale Deed on para 1, it is clearly mentioned that the property of the appellant is shown in colour Red in the plan forming part of the Deed. The description of the property of the RCA No. 14/2017 Page 14 of 32 Saraswati Devi V. Shail Kumari & Ors.
Appellant is further correctly mentioned therein pointingout the existing structures/ lane/wall on the East, West, North & South. For the sake of further elucidation, it is submitted that it is clearly mentioned that in the Northern Side (Uttar), there is a wall pertaining to Shail Kumari. The Site Plan alongwith the Sale Deed depicts the property of the appellants in colour red, as mentioned in the Sale Deed. Perusal of the Site Plan reveals that there exists a wall in colour Red on the Northern side, which forms part of the property of the appellants.
Upon further perusal of the Site Plan, it is apparent that along with the said wall shown in colour red, there is another wall shown in colour Green, marked AB. The said Green wall pertains to the Respondents. The Bifurcation between the two walls by virtue of dotted line, is also apparent. However, the Respondent has deliberately failed to mention the dimensions/ thickness of the wall in regard to which the declaration is sought.
(K) Because the Ld. Trial Court has miserably placed unfounded reliance upon page 4 of the Sale Deed, wherein it is mentioned that the wall shown in colour Green belonging to Shail Kumari is shown on the western side (Paschim) although, it exists on the RCA No. 14/2017 Page 15 of 32 Saraswati Devi V. Shail Kumari & Ors.
Northern Side (Uttar). Ld. Trial Court failed to appreciate that in a site plan forming part of the Sale Deed, generally the portion sold only is shown. However, in the present case, the wall of the appellant as well as the respondents have been shown in different colours in as much as the same being common due to the property being composite initially, the said wall was also divided. Further, the said property was sold to the appellant by Sh. Lal Chand who is/was related to Smt. Shail Kumari and also signatory to the Deed of Settlement by virtue of which the respondent claimed her ownership.
11. In the aforesaid background, the following points for determination arise for the consideration of the present case:
i) Can the order under question be termed as perverse, capricious and arbitrary?
ii) Does the impugned order run against the legal framework operating in and principles enunciated in this sphere?
iii) Does determination of point for determination no.1 or 2 warrants any indulgence or interference of the present Court with the order appealed against?
iv) What order?
FINDINGS AND CONCLUSIONS OF THE COURT The appellants have not disputed the findings of issue no.3 and this Court also does not find any infirmity in the said RCA No. 14/2017 Page 16 of 32 Saraswati Devi V. Shail Kumari & Ors.
findings. The decision on issue no.4 is aftermath of decision on issues no. 1 and 2. Otherwise also, the appellants have basically traversed the findings of issues no. 1 and 2 returned by the Ld. Trial Court.
The Ld. Trial Court while deciding issue no.1 interalia held to the following effect: "........There can be no dispute about the fact that al leged deed of settlement Ex PW3/1 could not have been executed in presence of PW3 considering her age and alleged date of execution of said deed and as such she was not a competent witness to prove the due execution of the aforesaid deed of settlement. However, since PW3 has produced the original deed of settlement dated 05.09.1950 which was not only registered but is more than 30 years old and has come from the proper custody, examination of attest ing witness to prove the execution of said document was not necessary in terms of section 68 and 90 of the Indian Evidence Act particularly when factum of ownership of suit property no. 994 has been admitted in the registered sale deed Ex DW1/1 relied upon by defendant in support of her title over property no. 995999. Defendant has failed to lead any evidence so as to rebut the presumptions as to the due execu tion and attestation of documents Ex PW3/1 in terms of section 68 and 90 of the Indian Evidence Act. It is settled legal position that in a civil suit, parties are re quired to prove their respective case on the touchstone of preponderance of probabilities. In view of the afore said discussion, in my considered opinion, plaintiff has been able to prove on record that Sh Mohan Lal Rastogi has executed the deed of settlement dated 05.09.1950 in respect of property no. 28384 (old), of which new no. is 992994, Bhojpura, Maliwara, Delhi, RCA No. 14/2017 Page 17 of 32 Saraswati Devi V. Shail Kumari & Ors.
in favour of plaintiff and by virtue of the aforesaid document plaintiff has proprietary rights in respect of aforesaid property....."
The Ld. Trial Court is correct that the provision of Section 90 of the Indian Evidence Act would be applicable as far as the document Exhibit PW3/2 is concerned. Moreover, PW3 has identified the signatures of his mother Smt. Shail Kumari and one of the witnesses in the said document. Furthermore, the document Ex.DW1/1 i.e. Sale Deed on which basis the defendant is claiming her right, title and interest in the property bearing no. 995999 clearly shows that the property no. 992994 belongs to Shail Kumari. There is categorical admission on the part of the defendant and it is well known principle that man may lie but not the documents. It is also apposite to reproduce Section 90 of the Indian Evidence Act: "90. Presumption as to documents thirty years old. -- Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation.-- Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or RCA No. 14/2017 Page 18 of 32 Saraswati Devi V. Shail Kumari & Ors.
if the circumstances of the particular case are such as to render such an origin probable.
This explanation applies also to section 81.
Illustrations (a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper. (b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper."
It cannot be disputed that Exhibit PW3/2 was not produced from the proper custody. The said document is in favour of plaintiff and daughter of the Plaintiff has produced the document before the Ld. Trial Court. In terms of said Section, it can safely presume not only its execution but also attestation and stamping also. The Ld. Trial Court has rightly invoked the said provision and the same was duly proved by the plaintiff in accordance with law. The plaintiff was the widow and on account of the same, her father inlaw had executed Exhibit PW3/2, which was duly witnessed by Shri Lal Chand Rastogi. The signature of Shri Lal Chand Rastogi was duly identified by PW3 in her testimony. Furthermore, the defendant had acquired the rights in the property no.995999 from Sh. Lal Chand Rastogi. The defendant could have produced the said witness not only to disprove the contents of Exhibit PW3/2, where, it is categorically mentioned that the plaintiff is the owner of property bearing no.992994, but also the fact that in Ex.DW1/1, RCA No. 14/2017 Page 19 of 32 Saraswati Devi V. Shail Kumari & Ors.
where it was categorically mentioned that Smt. Shail Kumari is owner of the wall in question.
The defendant, for the first time, raised the issue of limitation in appeal. There was no issue, which was framed in the trial court. The defendant in her Written Statement never raised the said issue. In the case of declaration, more so, in the present case, the issue of limitation is not purely question of law, but the mixed question of facts and law.
The Ld. counsel for defendant has claimed that plaintiff ought to have sought the relief of the declaration within the period of three years from the execution of Ex.PW3/2. In order to appreciate the same, it is apposite to reproduce Section 34 of the Specific Relief Act,1963 : "34. Discretion of court as to declaration of status or right.-- 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 its 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.
Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee."RCA No. 14/2017 Page 20 of 32
Saraswati Devi V. Shail Kumari & Ors.
The bare perusal of the aforesaid Section clearly reveals that cause of action for filing of the suit for declaration arises when any person has denied or interested to deny the title of the plaintiff. The Limitation period for claiming declaration can be inferred from the Article58 of the Schedule I appended to the Limitation Act, which reads as under: "Description of Period of Time from which Suit Limitation period begins to run To obtain any Three years When the right to sue other declaration. first accrues.
The defendant has failed to pointout, when the defendant has agitated that defendant is the exclusive owner of the disputed wall. The cause of action will arise to file the suit when the defendant had denied or intended to deny the title of the wall of plaintiff. The defendant has not led any evidence that on which date, the defendant has denied or intended to deny the title of wall. There is no document on the record which reveals that the defendant has denied the title of the plaintiff of the disputed wall. The plaintiff has agitated the cause of action, which was not traversed by the defendant.
Considered from any view point, the argument of Ld. counsel for the appellants that suit is barred by limitation sans merit and the same is hereby rejected.
Now, coming to issue no.2 of the case, the Ld. Trial Court has interalia held to the following effect: RCA No. 14/2017 Page 21 of 32 Saraswati Devi V. Shail Kumari & Ors.
"......In the case in hand, plaintiff has relied upon the site inspection report prepared by PW1 at the time of his visit to the suit property wherein he has noted certain facts as to the existence of certain alas/almiras in the disputed wall towards the side of plaintiff house alongwith certain kar ries/wooden planks/stone slabs of the house of plaintiff resting on the said wall which probablises the case set up by plaintiff as to the wall forming part of house of plaintiff. No doubt the report given by PW1 after inspection of the suit property was not conclusive as mentioned by PW1 in his re port, however, the aforesaid facts noted hereinabove specif ically find mention in the aforesaid report and the same have not been disputed by defendant in as much as PW1 was not cross examined by defendant despite opportunity. Moreover, though the said facts forming part of report Ex PW1/1 are not sufficient to prove the exclusive ownership of plaintiff over the wall in dispute, but the said facts mili tates against the exclusive ownership of defendant over the said wall as alleged by the defendant in her written state ment.
20. So far as the testimony of PW2 is concerned, the same is not of much relevance in as much as he has been ap pointed by Court on two occasions just to know the exact construction which was being carried out by the defendant in her portion of the property.
21. So far as the testimony of PW3 is concerned, it has al ready been observed during discussion held under issue no. 1 that she was not a competent witness to prove the deed of settlement Ex PW3/1 in as much as said deed could not have been executed in the presence of PW3, how ever, the said deed of settlement Ex PW3/1 has already been held to has been proved during discussions under is sue no. 1 hereinabove. As per the aforesaid deed of settle ment, proprietary possession of the plaintiff over house no. 994 is proved on the touchstone of preponderance of proba RCA No. 14/2017 Page 22 of 32 Saraswati Devi V. Shail Kumari & Ors.
bilities. Defendant has claimed her ownership over property no. 995999 on the basis of registered sale deed Ex DW1/1. Even the said registered sale deed corroborates the stand taken by plaintiff. Defendant cannot deny the con tents of the registered sale deed in as much as whole basis of claim of defendant over the wall in question is the said sale deed. Relevant portion of translated version of the aforesaid sale deed at page no. 1 and 4 is reproduced here inbelow for ready reference: "Jo ki 06 dukanaat vamaya balakhana teen manjila pukhta darobast vamaya tehat aaraji lagbhag 85 varg gaj property no. 995 ta 999 vakaya Bhojpura, Maliwara, Nai Sarak, Ilaka No. 5 Delhi Jis ko iss pralekh ke sanglan maanchitra mei lal rang se dikhaya gya hai or jiski seemayein iss prakar hai Poorav: Makaan No. 1000 ta 1006 Sh. Daulat Singh diwar mubaiya 29 feet 6 inch.
Paschim : Gali Bhojpura, Diwar Mubaiya 29 feet 1 inch.
Uttar : Diwar House no. 994 va House No. 994 Smt. Shail Kumari diwar mubaiya 26 feet hai jisko nakshe mei shabad A, B sei dikhai gyi hai.
Dakshin : Bazar Maliwara diwar mubaiya 27 foot 2 inch bazar Maliwara ki chaudai paschim ki aur 12 foot 6 inch aur poorav ki aur 13 foot 7 inch hai"
Page no. 4 :
"Yeh Baat Spasht taur per likhi jaati hai ki Jayadaad Muviya ke paschim ki aur ki Diwaar jo Nakshe mein Hare rang se dikhaie hai Smt. Shail Kumari Maalika Jayadaad No. 994 ki Malkiyat hai. Is Hare Rang ki Diwar se Kreta ka koi sambandh va Wasta na hoga. Kreta apni utteri Diwar barang Surkh Charon Manjil RCA No. 14/2017 Page 23 of 32 Saraswati Devi V. Shail Kumari & Ors.
A, B ka Makan No. 994 ki hifazat rakhte hooe her wakt tamir ker sakegi."
22. A bare perusal of the aforesaid portion of the sale deed shows that it has been specifically mentioned that on the northern side of property no. 995999 the wall of house no. 994 and the house no. 994, of Smt. Shail Devi i.e. the plain tiff measuring 26 feet shown at point AB in the site plan an nexed alongwith sale deed, is situated. It is significant to note that had the wall between house no. 994 and 995 been a common wall or a wall exclusively belonging to the defendant or predecessor in interest of defendant, it would not have been mentioned in the sale deed that on the north ern side of house no. 994, wall of house no. 994 is situated and rather on the northern side only house no. 994 of plain tiff should have been mentioned. The said controversy re garding the ownership of disputed wall is further set at rest by a statement at page no. 4 of the sale deed to the effect that the wall situated on the western side of suit property no. 995 which is shown in the green color in the plan an nexed alongwith sale deed exclusively belongs to plaintiff and defendant shall have no right, title or interest in the same. Mistake as to the direction in which the said wall is situated is apparent in view of the fact that there is no wall situated on the western side of the property no. 995 which belongs to plaintiff and there is no wall in green color shown in plan annexed alongwith sale deed on the western side but the same is shown on the northern side of the property no. 995 in the site plan. The right of the defendant to construct her wall adjacent to the wall of plaintiff at the place shown red in color without causing any damage to the house of plaintiff has also been recognized in the said sale deed. The aforesaid recitals in the sale deed relied upon by defendant clinches the whole issue about the own ership of disputed wall. The aforesaid unflinching evidence, in my considered opinion, cannot be excluded by Court out of consideration on the principle that the case of the plaintiff RCA No. 14/2017 Page 24 of 32 Saraswati Devi V. Shail Kumari & Ors.
must stand on its own legs in as much as by relying on the document Ex DW1/1 plaintiff is not trying to take benefit out of lacuna, if any in the case of defendant but she is re lying on categorical admission on the part of predecessor in interest of defendant regarding the exclusive ownership of plaintiff over the disputed wall. The aforesaid recitals cou pled with the report Ex PW1/2 and the admission on the part of DW1 during his cross examination dated 09.04.2003 that the height of plaintiff property is more than height of property of defendant by one storey goes on prove that the disputed wall exclusively belongs to the plaintiff and defendant has no right, title or interest in the said wall.
23. No doubt, the plaintiff has failed to give the thickness of the aforesaid wall in the plaint or in her evidence, however, it is not even the case of the defendant that any 2nd wall in addition to the wall in dispute is situated in between prop erties no. 994 and 995. The said wall is thus clearly identi fiable even without the mention of thickness of the wall in the plaint or in the evidence of plaintiff.
24. Defendant has failed to lead any evidence in support of her title over the wall in dispute and the admission on the part of DW1 regarding the house of plaintiff being more in height than the house of defendant by one storey militates against the ownership of defendant over the wall in dis pute......."
The Plaintiff has proved on record Ex.PW1/2. The witness PW1 has been examined by the plaintiff. The said witness was not crossexamined by the defendant despite opportunity given to the defendant. The following important facts were demonstrated by PW1 in his report Ex.PW1/2 and the same are reproduced as under: RCA No. 14/2017 Page 25 of 32 Saraswati Devi V. Shail Kumari & Ors.
"........ On my careful inspection from the side of the house no. 994, it is noticed that the entire disputed wall mark 'AB' is an independent wall, forms part of the house no. 994. As almost all the wooden karries, wooden planks/ stone slabs of house no. 994 are rested or kept on the said very disputed wall. Moreover several Allas (Nitches) Almirahs etc. were built at the time of the original construction in this very disputed wall. Further it is noticed that 3" thick cornice is found built with roof of second floor projecting 3" towards house no. 995, which was usually built on the top of the roof ending the brick masonry construction, only to improve the architectural beauty of the building. So it is clear that the said disputed wall forms part of house no. 994, and in no case belongs to the adjoining house no. 99599. Under the circumstances explained above, I am of the considered opinion that after looking inspecting the disputed wall from the said of house no. 994, it is clear that the disputed wall mark 'AB' forms part of house no. 994, owned by Smt. Shail Kumari. However, a complete and final report ascertaining the exact position of ownership of the said disputed wall could only be given after inspecting the said disputed wall from the side of adjoining house no. 99599 by making hole in the wall from the sides of both houses. As I am not allowed to inspect the said disputed wall and also to cross hole in this very wall, from the side of house no. 99599. It is just possible that there might be an another wall which forms part of house no. 99599.......... "
No doubt, the report given by PW1 was not conclusive, however, the aforesaid facts, which are important for adjudication of the case, were not disputed by the defendant as the defendant has not crossexamined the said witness and the said facts stand proved accordingly.
RCA No. 14/2017 Page 26 of 32Saraswati Devi V. Shail Kumari & Ors.
The Ld. Trial Court has not taken into consideration the report of Local Commissioner, but in my view, the same also throws the important light in deciding the controversy between the parties. Sh. Rajesh Kumar Marwah was appointed by the Court as a Local Commissioner. Initially, the defendant has not allowed him to inspect the property from her side. Thereafter, the said Local Commissioner has visited the property again on 23.02.1990 at 7:30 pm. The said Local Commissioner has pointedout the condition of the property in para no. 3. The said report was exhibited as Ex.PW2/2. The para no. 3 of the said report is reproduced as under: ".... That the condition of the disputed wall on the different floors of the property is as follow: Ground Floor: On the ground floor of the suit property i.e. property no. 995999, Bhojpura, Maliwara, Delhi, I went through the Saree shop into the rear portion of the said shop where I found that the flooring was very recently constructed and wall in dispute also seemed to be very recently plastered and the same was whitewashed besides the whole wall was wet. Further, on the right side of the said wall I found one base of pillar made of small old bricks (Lahori bricks) as shown in red in the Annexure 'A' on which there was erected one small pillar upto the roof of the said rear portion which was also plastered and whitewashed very recently as shown in black colour in Annexure 'A'.
RCA No. 14/2017 Page 27 of 32Saraswati Devi V. Shail Kumari & Ors.
First Floor: On the first floor the disputed wall was passing alongwith the stairs and also through one room shown at mark 'A1' in Annexure 'A'. On inspection of the wall passing through the aforesaid room, it was very clear that so far as the disputed wall was concerned, the same appeared to me as if it was totally chipped/ cut off and was almost nonexistent. Rather it would be also pertinent and relevant to submit here that a wall of bricks was visible behind the aforesaid disputed and chipped off wall which the Attorney of the defendant Sh. Om Prakash himself admitted to have been constructed by the plaintiff.
Second Floor: On the second floor there were two rooms as shown at mark 'B' and mark 'C' in the Annexure 'A'. In mark 'B' there was no pillar visible and the wall was very old and the same was duly whitewashed. In the room marked 'C', I found that the wall was properly plastered and distampered in light yellow colour, however, there were two pillars and the said plastered wall was behind these two pillars as shown in Annexure 'A' in black colour.
Third Floor: On the third floor there was a kitchen along which the wall in dispute was passing and there I also found two pillars. Out of them one on the right corner of the wall, was erected parallel to the disputed wall and was visible from the hole as shown in Annexure 'A'. Further there was a clear demarcation of the disputed wall by a wall of half new RCA No. 14/2017 Page 28 of 32 Saraswati Devi V. Shail Kumari & Ors.
bricks upto the area as shown in red and marked 'D' in Annexure 'A'. The second pillar was on the left corner of the said wall and was absolutely inside the wall and was only visible due to dilapidated condition of the disputed wall............"
(Portions are highlighted in order to dispute) The Ld. Trial Court has rightly considered Ex.DW1/1. The Ex.DW1/1 clearly speaks the volume that the disputed wall belongs to Smt. Shail Kumari. The Ld. Trial Court has considered the said document in detail and finding of Ld. Trial Court with respect to the said document is absolutely correct. The defendant has acquired the right, title and interest in the said property by means of said document Ex.DW1/1. The said document itself shows that the disputed wall belongs to the plaintiff. The said document is an admitted document on the part of defendant.
The provisions of Sections 91 and 92 of the Indian Evidence Act would also be squarely applicable. I have profit to refer relevant portions of paras no.29 to 31 of the Judgment of Hon'ble High Court passed in CS(OS) 84/2009 titled Sparsh Builders Pvt. Ltd. Versus Maharishi Ayurveda Products Pvt. Ltd.
decided on 16th September 2009: "29. The other point that is relevant is whether a party can give oral evidence concerning the intention of the parties at the time of the execution of a document which is not reflected in such document. It was explained by the Supreme Court in Roop Kumar v. Mohan Thedani that Section 91 of the Evidence Act, 1872 (EA) "merely forbids RCA No. 14/2017 Page 29 of 32 Saraswati Devi V. Shail Kumari & Ors.
proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known some times as the "best evidence rule". It is in really declaring a doctrine of the substantive law, namely, in the case of a written contract, that of all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it".
"30. It was further explained in paras 17 to 18 in Roop Kumar (supra) as under (AIR SC @) p.242425): "17. It is likewise a general and most inflexible rule that wherever written instrument are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence. (See Strakie on Evidence p. 648).
18. In Section 92 the legislature has prevented oral evidence being adduced for the purpose of varying the contract as between the parties to the contract; but, no such limitations are imposed under Section 91. Having regard to the jural position of Sections 91 and 92 and the deliberate omission from Section 91 of such words of limitation, it must be taken note of that even a third party if he wants to establish a particular contract between certain others, either when such contract has been reduced to in a RCA No. 14/2017 Page 30 of 32 Saraswati Devi V. Shail Kumari & Ors.
document or where under the law such contract has to be in writing, can only prove such contract by the production of such writing."
"31. In para 21 of the Roop Kumar (supra), after discussing the rationale behind Sections 91 and 92 of the EA, it was held as under (AIR SC @ p.2425): "21. The grounds of exclusion of extrinsic evidence are (1) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing.
It is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be paced beyond the reach of future controversy, bad faith and treacherous memory."
(Portions are bolded in order to highlight) In view of the settled law, as enunciated above and more particularly, in respect of Sections 91 and 92 of the Indian Evidence Act, no oral evidence can be looked into to dislodge the documentary evidence including Exhibit DW1/1. The findings of Ld. Trial Court qua issue no.2 also suffer from no infirmity and this Court affirms the findings returned by the Ld. Trial Court. RELIEF:
In view of the discussions, as adumbrated above, I hereby pass the following RCA No. 14/2017 Page 31 of 32 Saraswati Devi V. Shail Kumari & Ors.
:: FINAL ORDER ::
(a) The Regular Civil Appeal of the Plaintiff/Appellant is hereby dismissed and consequently, the impugned Judgment and decree passed by the Ld. Trial Court is hereby confirmed.
(b) The Parties shall bear their own respective costs.
(c) The copy of this Judgment may kindly be sent forthwith to Ld. Trial Court alongwith the record of Ld. Trial Court.
Decreesheet in the Appeal be prepared accordingly, in terms of this Judgment.
Appeal file be consigned to record room after due compliance.
Announced in the open court on this 29th day of February, 2020.
(ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi RCA No. 14/2017 Page 32 of 32