Delhi District Court
Sh. Pradeep Kumar vs Sh. Manoj Kumar on 9 December, 2014
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
RCA No. 71/14
Case I.D. Number : 02402C0373992009
IN THE MATTER OF :
1. Sh. Pradeep Kumar
2. Sh. Dalip Kumar
Both S/o Sh. Jeet Bahadur Tiwari
Both Residents of C198, Gali No. 7, Shastri Park,
Delhi110053 ...... Appellants
VERSUS
1. Sh. Manoj Kumar
S/o Late Ram Bahadur Tiwari
( Adopted son of :
Sh. Chander Prakash Sharma)
2. Sh. Chandra Prakash Sharma
S/o Late Ram Bahal Sharma
Both Residents of H. No. 70,
New Lahore, Shastri Nagar,
Delhi. ...... respondents
Date of Institution of Appeal : 19.12.2009
Received in this Court : 18.03.2014
Arguments heard on : 08.12.2014
Date of Judgment/Order : 09.12.2014
Decision : Appeal dismissed with cost
RCA No. 71/14 1 of 20
Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
J U D G M E N T
1. This appeal is directed against the judgment and decree dated 19.11.2009 passed by Learned SCJ/ RC (NE), KKD Courts in CS No. 308/07 whereby the suit filed by the plaintiffs/appellants herein against the defendants/respondents for possession in respect of property bearing No. C198, Gali No. 7, Shastri Park, Delhi53 ( hereinafter referred to as the suit property) as shown in in the site plan Ex. PW1/K was dismissed. The appellants and the respondents shall be referred to as per their ranks in the suit as the plaintiffs and defendants respectively.
2. The brief facts as culled from the impugned judgment are as follows: (I) The plaintiffs have filed the present suit for possession against the defendants alleging themselves to be the owners of the property bearing No. C198, Gali No. 7, Shashtri Park, Delhi110053. The plaintiffs are the real brothers and defendant No. 1 is living with defendant No. 2 as the adopted son of defendant No. 2 since 1983 till date continuously at the aforesaid address of the defendants. Real father of defendant No. 1 late Sh. Ram Bahadur Tiwari expired on 21.11.06 at his native place in Distt. Ambedkar Nagar( U.P) and his wife also expired on 04.04.83 leaving behind her four minor children namely Anil, Neelam, Poonam and Manoj and out of them, Manoj who is defendant No. 1, three children of late Ram Bahadur Tiwari and his wife Hira Devi already expired. After the death of Smt. Hira Devi, the two minor children RCA No. 71/14 2 of 20 Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. namely Poonam and Manoj were adopted by defendant No. 2 and his wife namely Monika in the year 1983 whereas defendant No. 2 and his wife had no issue at that time for the said wedlock. After the death of wife of Ram Bahadur Tiwari, he transferred his aforesaid house bearing No. C198, Gali No. 7, Shashtri Park,Delhi by way of GPA and will deed dt. 31.10.06 in favour of plaintiffs and against the payment of Rs. 1 Lac from the part of both the plaintiffs. Since then, the plaintiffs became the actual owners and in possession and occupation over the aforesaid property. On 01.02.07, defendant No. 1 and 2 alongwith Smt. Monika, wife of defendant No. 2 came to the house of plaintiffs with some goods with them and entered in the house of plaintiffs and thereafter broke the lock of one room situated at Ground floor as shown in red colour in the site plan entered illegally and forcibly. The defendant put their goods in the aforesaid room at ground floor and started throwing outside the goods of the plaintiffs from the said room. Thereafter, defendant locked the aforesaid room illegally by their own lock and since then, the aforesaid room is still locked. Defendants lodged false report against the plaintiffs at Shashtri Park Police chowki and at the PS Seelampur also where the plaintiffs No. 1 and his father called by the police and police got the signature of plaintiffs NO. 1 on some blank papers on the name of compromise between the parties. A Kalandra case bearing No. 60/07 in PS Seelampur against the plaintiffs and their father is pending before SEM, Seelampur Court, ( NE) Delhi. Before filing the suit, plaintiffs issued a legal notice dated 22.02.07 to the defendants by registered cover and UPC which have been served on the defendants. The RCA No. 71/14 3 of 20 Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. plaintiffs also filed the suit for permanent and mandatory injunction against the defendants which is pending adjudication.
(II) Summons of the suit were served on the defendants. Defendant No. 1 and 2 have contested the suit by filing their written statement wherein it has been stated that the plaintiffs have not come to the court with clean hands and has suppressed the material facts. It has been stated that defendant No. 1 is actual owner of the abovesaid suit property. Defendant No. 1 was not adopted by defendant No. 2 but he has been brought up by defendant No. 2 as the mother of defendant No. 1 expired within six months of the birth of defendant No. 1. The documents filed by plaintiffs are forged and fabricated documents. The father of defendant No. 1 was in serious condition before three months of his death and document prepared on 31.10.06 create a doubt as father of defendant No. 1 was not in a fit mental and physical condition to transfer the aforesaid property. The plaintiffs never resided with late Sh. Ram Bahadur Tiwari. On merits, the contents of the plaint have been denied and it has been stated that father of defendant No. 1 was a doctor by profession and defendant No. 1 locked after his father from time to time and also attended his last ceremonies at Distt. Ambedkar Nagar , UP. It has been submitted that the plaintiffs have made forged and fabricated documents dated 31.10.06 and also withdrew Rs. 25,000/ from the account of late Ram Bahadur Tiwari after his death. It has further been submitted that on 18.11.06, late Ram Bahadur Tiwari was forcibly brought by the plaintiffs only for forcible execution of the documents. It has further been submitted that defendant No. 2 is residing at H. RCA No. 71/14 4 of 20 Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. No. 17, New Lahore, Shastri Nagar, Delhi and defendant No. 1 is residing at the suit property. A prayer has been made for dismissal of the plaint. (III) The plaintiffs filed replication denying the contents of the WS in so far as they were contrary to the plaint. The contents of plaint were reiterated and reaffirmed. It was also stated that the suit property was purchased by late Smt. Hirawati from Sh. Brij Mohan Chopra on 09.02.1979 and the same was transferred by her in favour of her husband on 30.12.1982.
3. Vide order dated 05.03.2008 following issues were framed: (I) Whether the plaintiff is the owner of the suit property ? OPP (II) Whether the plaintiff is entitled for a decree of possession of the suit property as prayed for ? OPP (III) Whether the plaintiff has approached before this court with unclean hands ? OPD (IV) Relief.
4. The plaintiffs/ appellants have preferred the instant appeal on the ground that the impugned judgment and decree dated 19.11.2009 is not sustainable in law and facts and is passed without applicable of judicial mind; the judgment is illegal and irregular and bad in law. As further contended, the learned trial judge passed the judgment without applying the judicial mind and without considering the evidence and documents on record and considered the fact that the plaintiffs are absolute owner of the suit property having purchased from Ram Bahadur Tiwari vide GPA dated 31.10.06. As contended, the judgment i.e. Suraj Lamps & Industries V/s State of Haryana, AIR 2012 SC RCA No. 71/14 5 of 20 Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. 206 is not applicable in the facts of the case and the plaintiffs acquired the title of the suit property by virtue of GPA coupled with consideration. It is further mentioned that appellants could not filed the necessary and relevant documents as mentioned annexure A before Ld. Trial court as it was not within the knowledge of the plaintiffs nor was available and due to circumstances beyond his control and along with appeal, appellants has filed an application for leading additional evidence U/o 41 Rule 27 CPC. It is mentioned that Ld. Trial Judge has not applied his mind and disposed off the suit without following process of law and considering the relevant aspects. Hence, this appeal is filed praying to set aside the impugned judgment and decree. The learned counsel for appellants has relied upon the judgment reported as 2010 (4) Civil Court Cases 625 ( P& H) in support of application U/o 41 Rule 27 CPC.
5. The defendants/ respondents filed the reply to the appeal and denied the contentions in the application u/o 41 Rule 27 CPC filed by the appellants . It is argued that the application U/o 41 Rule 27 CPC is after thought and without any ground.
6. I have heard Ld. Counsel for the parties and considered their respective submissions along with written submissions filed by the appellants. I have also gone through the Trial Court records and considered the relevant provisions of law.
7. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiffs and RCA No. 71/14 6 of 20 Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for partition, this suit is to be decided on the basis of preponderance of probabilities. As held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, "A civil case is decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
8. Section 101 of the Evidence Act, 1872 defines " burden of proof" and laid down that the burden of proving a fact always lying upon the person who RCA No. 71/14 7 of 20 Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn.
9. The brief and relevant facts for filing of this suit and issue framed has been mentioned above. Along with the appeal, an application u/o 41 Rule 27 CPC has been filed on behalf of appellants for allowing additional evidence and filing documents. Nowhere in the application it is mentioned that why the appellants/ plaintiffs did not file the documents before Ld. Trial Court or from where this documents were traced. These documents were not even discussed / explained in the pleading and evidence of plaintiffs/ appellants. The learned counsel for the respondents opposed this application contending that appellants RCA No. 71/14 8 of 20 Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. cannot be permitted to lead additional evidence as plaintiffs / appellants failed to assign any reason for the same.
The contentions of the learned counsel for appellants in support of this application itself appears to be contrary and appellants failed to assign any reason for not making such request at the relevant stage. Even otherwise there is no reason explained for not filing these documents, from where this documents were received. As held in AIR 2001 SC 2802, AIR 2005 P& H 42 and (2001) 7 SCC 503 it is trite to observe that U/o XLI, rule 27 additional evidence could be adduced in one of the three situations, namely, (a) whether the trial court has illegally refused the evidence although it ought to have been permitted;(b) whether the evidence sought to the adduced by the party was not available to it despite the exercise of due diligence;(c) whether additional evidence was necessary in order to enable the Appellate court to pronounce the judgment or any other substantial cause of similar nature. It is equally well settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case.
As further held in AIR 2005 MAD 431, it is not open to any party at the stage of appeal to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirement of order 41 Rule 27 of CPC. Additional evidence cannot be permitted at the appellate stage in order to enable other party to remove certain lacunae present in that case.
10. As held in (2012) 8 SCC 148, the general principle is that the appellate court should not travel outside the record of the lower court and cannot take RCA No. 71/14 9 of 20 Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. any evidence in appeal. Order 41Rule 27 CPC enables appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled as apprised, to the admission of such evidence. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. As further held, the appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of the satisfactory reasons for the non production of the evidence in the trial court, additional evidence should not be admitted in appeal.
11. Keeping in view of aforesaid discussion, this court of the considered opinion that there is no basis for allowing this application u/o 41 Rule 27 CPC filed by appellant. This court does not find any substance and the application is therefore dismissed.
12. The evidence of the parties led before Ld. Trial Court was somehow on the similar lines as contended in the pleadings. The plaintiffs has filed this suit for possession against the defendants claiming to be the owner of the suit property have been purchased from the natural father of the defendant No. 1 deceased Sh. Ram Bahadur Tiwari. The defendant No. 1 is the adopted son of the defendant No. 2. The defendant No. 1 denied the ownership of the plaintiff.
RCA No. 71/14 10 of 20 Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. The Ld. Trial Judge framed the issues regarding ownership of the plaintiffs with respect to the suit property on the basis of the registered GPA and other documents dated 31.10.06, Ex. PW1/A. The onus to prove all the issues was upon the plaintiffs who claimed the ownership on the basis of documents Ex. PW1/A to Ex. PW1/F i.e. GPA, Agreement to Sell, Affidavit, Will, Receipt and Possession Letter respectively executed by Sh. Ram Bahadur Tiwari in their favour for consideration of Rs. 1 lakh. Admittedly, Sh. Ram Bahadur Tiwari was not the owner of the suit property from whom the plaintiffs claimed their right in the suit and admittedly his wife Smt. Heerawati was the owner. The plaintiffs failed to produce any material to come to the conclusion that Ram Bahadur Tiwari was the owner of the suit property and accordingly the plaintiffs became the owner by virtue of the documents executed by him. The findings of the Ld. Trial Judge is accordingly sustainable and based on correct appreciation of facts, evidence and pleadings. There is nothing on record to come to the conclusion that Sh. Ram Bahadur Tiwari has any authority to transfer the suit property to the plaintiffs (without going into the controversy of value and admissibility of the documents relied by the plaintiffs in support of contentions). The findings of the Ld. Trial Judge does not suffer from any infirmity or illegality nor warrants for any interference. The Ld. Trial Judge was correct in dismissing the suit of the plaintiffs for possession as the plaintiffs failed to prove the ownership of the suit property.
13. Section 5 of the Transfer of Property Act, 1882 ( ' TP Act' for short) defines ' transfer of property' as under: RCA No. 71/14 11 of 20 Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
" 5. Transfer of Property defined: In the following sections " transfer of property " means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself 9 for to himself) and one or more other living persons; and " to transfer property" is to perform such act." XXX XXX Further Section 54 of the TP Act defines ' sales' thus :
" Sale" is a transfer of ownership in exchange for a price paid or promised or partpaid and part promised.
Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
RCA No. 71/14 12 of 20 Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
Contract for sale. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property."
Section 17 of the Indian Registration Act, 1908: " 17. Documents of which registration is compulsory. (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866 ( 20 of 1866), or the Indian Registration Act, 1871 ( 8 of 1871), or the Indian Registration Act, 1877 ( 3 of 1877), or this Act came or comes into force, namely
(a) Instrument of gift of immovable property;
(b) other nontestamentary instruments which purport or operate to create, declare, assign, limit or extinguish , whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable RCA No. 71/14 13 of 20 Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
property.
14. It is settled law that title of immovable property above the value of Rs. 100/ can only be transferred by way of a registered instrument as prescribed Under Section 17 of the Indian Registration Act, 1908 and by way of documents of sale as recognized under Section 54 of the Transfer of the Property Act. As held in AIR 1969, SC 1316, the documents of which registration is necessary under the transfer of Property Act ( such as under
Section 54 of the TP Act) but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction of acting any immovable property comprise therein and do not affect any such immovable property.
15. As held in 128 (2006) DLT 407 (DB) titled M. L. Aggarwal Vs. Oriental Bank of Commerce & Ors, : " The petitioner has only produced an agreement to sell, will and a power of attorney and a receipt for payment of money but these in our opinion do not constitute a sale. Under Section 17 (1) (b) of the Registration Act, Sale of an immovable property can only be by a registered deed. In our opinion, the petitioner has no right, title or interest in the suit property as he has not purchased it by any registered sale deed. An immovable property cannot be purchased by a mere power of attorney or agreement to sell."
The ratio was further reiterated by Hon'ble Delhi High Court in AIR 2003, Delhi 120 titled G. Ram Vs. DDA wherein it is mentioned that transfer of immovable property can only be affected by executing a registered RCA No. 71/14 14 of 20 Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. documents. Merely making an agreement of sale or execution of power of attorney could not transfer right, title or interest of any immovable property.
16. This court is guided in view of the judgment of Hon'ble Supreme Court in Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC) in this respect. As held, GPA , Agreement to Sell, Will and receipt would not confer ownership rights in respect of immovable property. Hon'ble Supreme court vide order dt. 15.05.09 reported as Suraj Lamps & Industries V/s State of Haryana, 2009(7) SCC (366) referred illaffects of GPA sells or sell agreement/ GPA/ will transfer holding that there cannot be sell by execution of power of attorney nor there can be transfer by execution on agreement to sell and power of attorney and will. It was further reiterated that immovable property can be legally and lawfully transferred/ conveyed only by a registered deed of conveyance. Transaction of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transaction as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered RCA No. 71/14 15 of 20 Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transaction known as GPA sales.
17. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Hon'ble Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance ( para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872( para 13) and devolution of interest pursuant to a will( para 14).The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney.
18. Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will.
In the facts of this case, neither the provision of section 53 A of the transfer of property act nor the provision of section 202 of the contract act is RCA No. 71/14 16 of 20 Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. applicable. In fact there is nothing on record either produced/ proved by the plaintiffs / appellants regarding the claim of the ownership except the bald averments.
19. Section 27 of Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set forth in the instrument all facts and circumstances which affects the chargeability of duty on that instrument. Section 17 of the Registration Act, 1908 makes deed of conveyance compulsorily registrable. The transfer of an immovable property can only be by a deed of conveyance and in the absence of a deed of conveyance ( duly stamped and registered as required by law), no right, title or interest in an immovable property can be transfered. With regard to the legal validity of such documents i.e. agreement to sell, GPA, Will and receipt, the Hon'ble Supreme Court in the case of Suraj Lamps and Industries Pvt. Ltd. Vs. State of Haryana reported in AIR 2009 SC 3077 has held that such documents cannot create any right in respect of immovable property. The only way a contract of sale can create title to immovable property is by way of a deed of conveyance as defined under Section 54 of the Transfer of Property Act and registered in pursuance of the provisions of Section 17 of The Registration Act, 1908. No such document has been executed in favour of plaintiffs /appellants nor proved on record.
20. This Court is conscious of the judgment of the Hon'ble High Court in the case of Sh. Ramesh Chand Vs. Suresh Chand reported in 188 (2012) DLT 538 in which the judgment in the case of Suraj Lamps (supra) was interpreted.
RCA No. 71/14 17 of 20 Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. In the case of Ramesh Chand (supra) the Hon'ble High Court was pleased to hold that right to possess immovable property arises not only from a complete ownership right but also by having a better title.
In the present case, plaintiffs/appellants has claimed title on the basis of GPA, Agreement to Sell, Payment receipt and the will but the execution of the documents not proved. None of these documents are registered nor produced before the court. Even if these documents were executed in favour of the plaintiffs/ appellants, the same would not create any title in his favour. As mentioned, the plaintiffs/ appellants claimed to be the owner of the suit property which is denied by respondents. Since there is no registered sale deed executed in favour of the plaintiffs/ appellants in respect of the suit property in accordance with provisions of Transfer of Property Act, 1882, the appellants/plaintiffs is not the owner of the suit premises and not entitled for the relief of possession. Moreover, the plaintiffs failed to prove that Sh. Ram Bahadur Tiwari was the owner of the suit property who transferred the same to the plaintiffs.
21. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the RCA No. 71/14 18 of 20 Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiffs creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title.
The present case being a civil one, the plaintiffs could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this Court the plaintiffs has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiffs had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
22. The testimony of the PWs, DWs and the pleadings of the parties established that the appellants / plaintiffs failed to prove the case and discharge the onus. The Ld. Trial Court has examined the issues framed in the suit in proper perspective. This court does not find any illegality or infirmity in the RCA No. 71/14 19 of 20 Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. impugned judgment and decree dated 19.11.2009 which is well reasoned/correct appreciation of facts and in accordance with the provisions of law. The impugned judgment is therefore entitled to be upheld. There is no merit or substance in the appeal which is liable to be dismissed. The appeal is therefore dismissed with cost.
23. Decree sheet be drawn accordingly.
24. Trial Court record be sent to the concerned court along with copy of this judgment.
25. Appeal file be consigned to record room.
Announced in open Court on this 09th day of December, 2014 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
RCA No. 71/14 20 of 20
Pradeep Kumar & Ors. Vs. Manoj Kumar & Ors.