Delhi District Court
JsccCumAscjCumGj (Nw) : District ... vs Sh. Hotu RamDeceased on 9 November, 2012
IN THE COURT OF SH. SANJAY JINDAL
JSCCcumASCJcumGJ (NW) : DISTRICT COURTS
ROHINI : DELHI
Unique ID No. 02404C0143682011
RCA No. 3/11
Sh. Devi Dass (Now deceased)
Son of late Shri Pari Ram,
R/o : C321, Gali No.9, Majlis Park,
Delhi110033
Through L.R.'s
1 Sh. Prem Prakash
S/o late Sh. Devi Dass,
2 Shri Darshan Kumar
S/o late Sh. Devi Dass. ........Appellants
Versus
1 Sh. Hotu RamDeceased
Through L.R. Shri Dinesh Kumar,
R/o : BC108, Janta Flats,
Shalimar Bagh, Delhi
2 Sh. Karam Chanddeceased
S/o Late Sh. Pari Ram,
Through L.R.'s
i) Smt. Usha KumariDaughter
ii) Sh. Rajesh Kumar son
R/o : D70/2, Gali No.1,
Swaroop Nagar, Delhi .......Respondents
RCA No. 3/11 Devi Dass(deceased) Vs. Hotu Ram (deceased) 1/11
Date of Institution of the appeal : 28.05.2011
Date of reserving of the order : 09.11.2012
Date of order : 09.11.2012
O R D E R
09.11.2012 1 This is an appeal against judgment and decree dated 25.03.2011 passed in suit No. 75/10/90 by Ld. Civil Judge (Central District), Delhi thereby dismissing the suit filed by the appellant. 2 Brief facts, necessary for disposal of the appeal, are that the appellant filed a suit against the respondents for declaration to the effect that the sale deed dated 02.11.1978 purported to have been executed by the plaintiff/appellant in respect of property No. E/1 Outram Lines, Kingsway Camp, Delhi measuring 52 Sq. Yards in favour of the defendants/respondents is forged and invalid one. The case of the plaintiff/appellant is that the plaintiff (since deceased), the defendant no.1 and the defendant no.2 (since deceased) were real brothers and the plaintiff was the eldest of them. They had come to India from Pakistan and the suit property was leased out to the plaintiff for 99 years by the Government by way of Lease Deed RCA No. 3/11 Devi Dass(deceased) Vs. Hotu Ram (deceased) 2/11 and Conveyance Deed dated 09.10.1969 and 13.10.1969. It is alleged that in the year 1989 under the clearance scheme of the DDA the plaintiff's quarter was demolished at the time when he was not present there and the defendants managed to get allotted Flat No. Z69, Second Floor, Janta Flats, Jahangirpuri, Delhi in their name on the basis of forged documents regarding ownership including Sale Deed dated 02.11.1978 which was never executed by the plaintiff in favour of the defendants. Subsequently the defendants acquired Flat No. BC108 and AF39/A in Shalimar Bagh, Delhi and surrendered the Flat No. Z69, Jahangirpuri, Delhi which was allotted to them by the DDA in lieu of the suit property. When the plaintiff was waiting for allotment of alternate site in lieu of the suit property, he came to know about the alleged acts of the defendants. Hence, it is prayed that the Sale Deed dated 02.11.1978 be declared not valid in the eyes of law being forged one. 3 The defendant no.1 filed his separate WS contending that he had no knowledge about the execution of the sale deed and he was substantially dependent upon the defendant no.2 and has acted as per his advice. On the other hand, the defendant no.2 filed his separate WS taking certain preliminary objections and disputing the RCA No. 3/11 Devi Dass(deceased) Vs. Hotu Ram (deceased) 3/11 case of the plaintiff on merits as well. It is contended by him that the sale deed was duly executed by the plaintiff in favour of the defendants for a sum of Rs.8000/.
4 On the basis of the pleadings, following issues(preliminary) were framed on 25.09.1994 :
i Whether the suit of the plaintiff is time barred? OPD2 ii Whether the suit is bad for non joinder of the necessary party? OPD iii Whether the suit for mere declaration is maintainable under the provisions of the Specific Relief Act? OPD iv Whether the suit has been properly valued for the purpose of Court Fee and jurisdiction? OPD.
5 vide order dated 22.11.1996, the Issues No.2, 3 & 4 were decided in favour of the plaintiff and against the defendants. One additional issue was framed as under :
Whether the plaintiff is entitled for the relief of declaration as prayed for ? OPP.
6 Initially, the suit was dismissed by the Ld. Trial Court vide RCA No. 3/11 Devi Dass(deceased) Vs. Hotu Ram (deceased) 4/11 Judgment dated 12.07.2006 but on the appeal preferred by the plaintiff the case was remanded back for fresh adjudication with directions that the matter be heard afresh and clear specific reasons and findings on all the issues be given.
7 Vide Judgment dated 25.03.2011 i.e., the impugned Judgment, the Ld. Trial Court gave findings on Issue Nos.1 & 5 only as the Issues No.2, 3 & 4 had already been decided(vide order dated 22.11.1996) and the appeal was not filed against the adjudication on those issues. Issue No.1 was decided in favour of the plaintiff while Issue No.5 was decided against the plaintiff and the suit was dismissed.
8 Aggrieved by the Judgment and the Decree dated 25.03.2011, the plaintiff has filed the present appeal for setting aside the said Judgment and decree on different grounds. It is contended that the Ld. Trial Court has failed to appreciate the evidence led by the plaintiff and the fact that the defendant no.2 has not led any evidence qua the execution of the sale deed. It is further contended that the fact that no consideration has passed to the seller for execution of the sale deed, has not been taken into consideration. It RCA No. 3/11 Devi Dass(deceased) Vs. Hotu Ram (deceased) 5/11 is further contended that once the execution of the sale deed was disputed by the plaintiff, the presumption in favour of the sale deed stood rebutted and it was duty of the defendant no.2 to prove the valid execution of the same. It is further contended that the report of the CFSL has been ignored and the testimony of PW3 has been wrongly disbelieved. Certain other issues have also been raised. 9 Notice of the appeal was sent to the respondents/defendants. No appearance has been made on behalf of the respondent no.1 who was ex parte before the Ld. trial Court as well. Appearance has been made on behalf of the LR's of the deceased defendant no.2 but no formal reply has been filed.
10 I have heard the counsel for the appellant and the respondent No.2 and carefully perused the record in the light of the submissions made before me.
11 On perusal of record it is clear that Issues No.1, 2, 3 & 4 have been decided in favour of the plaintiff and the suit has been dismissed on the basis of findings in issue No.5 which has been decided against the plaintiff. Onus was on the plaintiff to prove his RCA No. 3/11 Devi Dass(deceased) Vs. Hotu Ram (deceased) 6/11 entitlement for the relief of declaration regarding sale deed dated 02.11.1978. The plaintiff has examined PW1 who is a witness from the office of the DDA, PW2 who is a witness from the office of Sub RegistrarI, Kashmere Gate, Delhi and PW3 who is son of the plaintiff. On the other hand, to rebut the evidence of the plaintiff, the defendant no.2 has been examined as DW2 and Sh. AK Mishra, Director/OSD, DDA has been examined as DW3.
12 After conclusion of trial and while giving findings in issue No.5, the Ld. Trial Court has observed that it was strange that the plaintiff has made the allegations of forgery against the defendants however a very brief cross examination of defendant no.2 was done by the Ld. counsel for the plaintiff and only suggestions were given regarding forgery of the signatures. There was no detailed cross examination as to the events of the execution of the alleged sale deed nor any question has been put regarding payment of consideration amount. It was further observed that in view of the allegations of the plaintiff, the said witness was the most important witness who was the actual perpetrator of the alleged forgery and it was not understandable as to why the plaintiff has not cross examined the said witness in detail on all the allegations. After RCA No. 3/11 Devi Dass(deceased) Vs. Hotu Ram (deceased) 7/11 careful perusal of the records, the above observation given by the Ld. Trial Court is found to be reasonable and correct and no reasonable explanation has been given on behalf of the appellant regarding the cryptic and brief cross examination of the defendant no.2. Clearly, the appellant has failed to impeach the credibility of the said witnesses during the course of cross examination. 13 So far as report of the CFSL is concerned, the same has also been duly considered and dealt with in detail by the Ld. Trial Court and it has been observed that the said report is of little help to the plaintiff. As per the report of the Principal Scientific Officer, CFSL CBI, "sufficient writing characteristics have not been found similar for a definite opinion regarding their common authorship. The questioned signatures are of the year 1978 while the admitted signatures are of 1969 with a gap of 9 years and thus admitted signatures have not been found sufficient for the comparison". Similarly, it is reported regarding the thumb impression that "the questioned thumb impression on the sale deed are blurred and do not contain sufficient number of clear ridge characteristics for comparison with admitted thumb impression". In view of above report of the CFSL, it has been observed by the Ld. Trial Court that RCA No. 3/11 Devi Dass(deceased) Vs. Hotu Ram (deceased) 8/11 the said report is of no use for the plaintiff and I find no infirmity in the conclusion arrived at by the Ld. Trial Court regarding the evidentiary value of the Expert Reports. It is the plaintiff who has challenged the execution of the sale deed and the onus was on him only to prove the allegations in this regard, at least, to a reasonable extent but clearly the plaintiff has failed to discharge the initial onus lying on him. The arguments of the Ld. counsel for the appellant that the CFSL Report is in favour of the plaintiff/appellant do not hold water as it is clear from the contents of the report that the same is inconclusive and does not favour either of the party. Since the onus was on the plaintiff/appellant to disprove the validity of the sale deed, the benefit of the inconclusive CFSL Report cannot be given to him and the same has rightly been interpreted in favour of the defendant/ respondent.
14 The contention of the Ld counsel for the plaintiff/ appellant that once the plaintiff has specifically denied having executed the sale deed, the presumption in favour of the sale deed stands rebutted, is not found to be forceful as mere contention is not sufficient to rebut the presumption operating in favour of the registered documents and it was obligatory on the plaintiff to prove RCA No. 3/11 Devi Dass(deceased) Vs. Hotu Ram (deceased) 9/11 the allegations in a positive manner which the plaintiff has failed to do as discussed above. It is argued by the counsel for the appellant that the defendant no.2 has failed to lead evidence regarding execution of sale deed as the attesting witnesses to the sale deed have not been examined but in the entirety of the facts and circumstances, such a contention also does not hold water as sufficient evidence in form of official record has been produced by the defendant no.2 and the onus was on the plaintiff to prove the sale deed as forged one and not on the defendants to show that the sale deed is a validly executed document particularly when the sale deed dated 02.11.1978 is a registered document and the executant has not/could not enter the witnessbox to deny on oath the execution of the sale deed.
15 The counsel for the appellant has relied upon the denial/ ignorance of sale deed on part of the defendant no.1 but in absence of the testimony of defendant no.1 in this regard, much weightage cannot be given to such a contention.
16 One other basic contention made by the Ld. Counsel for the appellant is regarding testimony of PW3 and it is argued that RCA No. 3/11 Devi Dass(deceased) Vs. Hotu Ram (deceased) 10/11 testimony of the said witness has been wrongly disbelieved by the Ld. Trial Court, but after careful perusal of the record and the impugned judgment such a contention is also found to be devoid of merits. The testimony of PW3 has been appreciated in detail and in proper perspective by the Ld. Trial Court. It cannot be said that the testimony of PW3 has been disbelieved rather the same has not been found to be helpful to the plaintiff.
17 The other contentions raised on behalf of the appellant are also not of much importance as the same are based on minor discrepancies in the case of the defendants.
18 In view of the above discussions, I am of the view that the appellant has failed to show any ground for interference with the impugned judgment and decree dated 25.03.2011 passed by the Ld. Trial Court. Hence the appeal is dismissed.
TCR be sent back with a copy of this order.
The appeal file be consigned to the Record Room.
Announced in the open Court Today on 9th day of November, 2012.
(SANJAY JINDAL) SCJcumRC(NW)/ROHINI : DELHI 09.11.2012 RCA No. 3/11 Devi Dass(deceased) Vs. Hotu Ram (deceased) 11/11