Delhi District Court
Sh. Bihari Singh vs Sh. Ram Ashish on 15 October, 2022
-:: 1 ::- Date: 15.10.2022
IN THE COURT OF MS. SHIVALI BANSAL
ADDITIONAL DISTRICT JUDGE-03 (NORTH)
ROHINI COURTS, DELHI
CNR NO. DLNT010003442019
RCA No. 6/19
In the matter of :-
Sh. Bihari Singh
R/o Khasra No. 253/81,
Plot No. 95, situated at
Mukund Pur, Delhi. ...... Plaintiff
Versus
Sh. Ram Ashish
S/o Sh. Chand Deo Shah
R/o. H. No. 472, J. J. Camp,
Haiderpur, Near Ayurvedic
Hospital, Delhi. ......Defendants
Date of Institution : 15.01.2019
Date of Final Argument : 06.09.2022
Date of pronouncement of judgment : 15.10.2022
APPEAL UNDER SECTION 96 OF THE CODE OF CIVIL
PROCEDURE AGAINST THE JUDGMENT AND DECREE SUIT
DATED 20.09.2018, PASSED BY LD. SCJ-CUM-R.C, (NORTH)
ROHINI, DELHI IN SUIT NO. 580/12 (NEW NO. 535320/16) TITLED
AS "SH. RAM ASHISH VS. BIHARI SINGH"
RCA No. 6/19 Bihari Singh Vs. Ram Ashish Page: 1 of 12
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JUDGMENT
1. The present appeal has been preferred against the judgment/decree dated 20.09.2018, passed by Ld. SCJ-CUM-R.C, (North) Rohini, Delhi in suit no. 580/12 (New no. 535320/16) titled as "Sh. Ram Ashish Vs. Bihari Singh" whereby the Ld. Civil Judge decreed the suit of the plaintiff.
2. The brief facts leading to the filing of the present appeal are as under:
(a) That the plaintiff filed a suit for recovery of possession, damages, mandatory and permanent injunction against the defendant stating therein that he is the owner of property/plot no. 95, Khasra no.
253/81, situated at MukundPur, Delhi measuring about 30 sq. yards, bounded by bricks only. It was further alleged that the plaintiff had purchased the said suit plot in dispute from Smt. Sita Devi W/o Gorakh Nath R/o H. No. 169, Jhuggi Haiderpur, Delhi for a sum of Rs. 17,000/- in the year 2004 and the relevant document of the suit property were executed. It was further alleged that the plaintiff is the owner of the suit property whereas the defendant no. 1 is trespasser in the suit property and his only intention is to grab the property illegally and forcefully by way of trespassing with the help of his associates and with the collusion of the defendant no. 2.
(b) It is further averred that when plaintiff visited the plot on 15.08.2011, he found that one room was built on the said plot and RCA No. 6/19 Bihari Singh Vs. Ram Ashish Page: 2 of 12
-:: 3 ::- Date: 15.10.2022 one person namely Sh. Subodh Sarkar was residing therein. After inquiry from him, plaintiff came to know that the defendant no. 1 has forcibly and illegally trespassed into the plot of the plaintiff. The plaintiff lodged the complaint on 24.08.2011, FIR no. 71/2012 dated 07.05.2012 was registered under Section 420/447/468/471/120-B/506 IPC of P.S Bhalaswa Dairy, but the defendant no. 2 i.e. S.H.O of P.S Bhalaswa Dairy did not do anything.
(c) It is stated that in the written statement filed by the defendant no.
1, preliminary objections were raised regarding misjoinder of unnecessary party and the suppression of material facts by the plaintiff. It is was submitted by the defendant no. 1 that he purchased the plot in question from Sh. Shivaji Singh, who had purchased it from Sh. Chanderdeep S/o Sh. Khalifa. It was also submitted that the suit property has been further sold out to one Smt. Madhu Devi W/o Late Sh. Dwarka Singh who is in the exclusive possession. The defendant no. 1 has also challenged the site plan filed by the plaintiff. No written statement filed by the defendant no. 2/S.H.O.
3. That from the pleadings of the parties, the Ld. Trial Court framed the following issues in the suit:
(a) Whether the plaintiff is entitled for the decree of possession as prayed for? OPP
(b) Whether the plaintiff is entitled for decree of permanent injunction RCA No. 6/19 Bihari Singh Vs. Ram Ashish Page: 3 of 12
-:: 4 ::- Date: 15.10.2022 as prayed for? OPP
(c) Whether the plaintiff is entitled for damages as prayed for ? OPP
(d) Whether the suit is bad for misjoinder of party? OPD-1
(e) Relief.
Thereafter, the suit of the plaintiff was decreed.
4. The appellant/defendant no. 1 has raised the following ground of appeal in the present appeal:
(a) It is submitted by the appellant that the impugned judgment and decree dated 20.09.2018 is against the law and facts of the case, therefore, the same is liable to be set aside.
(b) It is submitted by the appellant that the Ld. Trial court has ignored the entire facts and record. Ld. Trial Court has failed to consider the fact that the documents of the plaintiff are not related to the suit property and even the evidence is not conclusive enough so that any inference can be taken in favour of the plaintiff. It is relevant to mention here that the documents of the plaintiff clearly shows 15 ft. wide Gali on the Estern side of the plot, whereas the site plan filed by the plaintiff shows 15 ft. wide Gali on the Western side of the property, which is self contradictory with the entire evidence led by the plaintiff.
Moreover, there is no 15 ft. wide Gali either on the eastern side or on the western side of the plot and there is only 8 ft. wide Ganda Nala on the eastern side. Furthermore, the site plan filed by the plaintiff discloses that the so-called Gali is on the western side of RCA No. 6/19 Bihari Singh Vs. Ram Ashish Page: 4 of 12
-:: 5 ::- Date: 15.10.2022 the suit property.
(c) It is stated by the appellant that Ld. Trial Court failed to consider the fact the both the parties are claiming their ownership from common person namely Sh. Chanderdeep, who was never called either by the plaintiff or by the defendant. The onus proving his case was on the plaintiff, but the plaintiff deliberately did not call Sh. Chanderdeep and in the absence of his evidence and testimony, the Ld. Trial Court has wrongly held that the plaintiff is entitled for the possession of the suit property. It is stated that Sh. Chanderdeep executed title documents in favour of one Sh. Shivaji Singh from whom the defendant no. 1 purchased the suit property. The only evidence on record is one statement given by Sh. Chanderdeep to the police that he sold one plot to Smt. Sita Devi (who is in the chain of documents of plaintiff). In the absence of Sh. Chanderdeep, the said statement taken by the police is not admissible and even its contents cannot be read. The statement under Section 161 Cr.P.C can only be exhibited by the person who gave it and sign it. But in the absence of the said witness namely Sh. Chanderdeep, the said statement was exhibited and even the Ld. Trial Court considered the same despite objections of the defendant no. 1/appellant.
(d) It is submitted by the appellant/defendant no. 1 that the Ld. Trial court has failed to consider the evidence on record. The plaintiff in his cross examination, clearly stated that the site plan filed in the plaint is correct and the same has been prepared on his instance. He has also mentioned that the sites which has been RCA No. 6/19 Bihari Singh Vs. Ram Ashish Page: 5 of 12
-:: 6 ::- Date: 15.10.2022 mentioned in his documents are also correct. In the next para, he has categorically stated that there is 15 ft. wide road adjacent to the suit property towards the east. Thereafter, the attention of the witness has brought to the site plan in which it is shown in the west site, but he could not give its justification but the Ld. Trial court totally ignored this fact. In the same para, the plaintiff admitted that there is a Ganda Nala toward the west side of the suit property. Thus, it is clear that the property of the plaintiff is different from the suit property, but the plaintiff has wrongly claimed the property of the defendant no. 1/appellant.
(e) It is submitted by the appellant/defendant no. 1 that the Ld. Trial Court failed to consider the statement of PW-3 Smt. Sita Devi, who in her cross-examination clearly stated that she does not know the name from whom she purchased the suit property in the year 1992.
(f) It is further submitted that the Ld. Trial court failed to consider the fact that PW-4 has also stated in his cross examination that the site plan is correct as it is according to the site. He further stated that "I cannot say what is situated in the eastern side of the plot". Thus, it is clear that the plot of the plaintiff is different and is situated on 15 ft. wide Gali, whereas the suit property is situated at 8 ft. wide Ganda Nala.
(g) It is submitted by the appellant that the Ld. Trial Court failed to consider the fact that the PW-1 stated that he raised construction of boundary wall on the suit property whereas the PW-3 says that RCA No. 6/19 Bihari Singh Vs. Ram Ashish Page: 6 of 12
-:: 7 ::- Date: 15.10.2022 she herself raised construction of boundary wall. Moreover, PW-5 says that there was no construction on the plot when the same was sold to the plaintiff by the PW-4, thus, there is great contradiction in the statement of the PWs regarding the raising of boundary wall.
(h) It is submitted by the appellant that the Ld. Trial Court passed the impugned order without looking into the statements of defendant's witnesses. The defendant has absolutely proved his case upto the extent that he purchased the suit property from Sh. Shivaji Singh through Sh. Umesh Singh and Sh. Shivaji Singh purchased the suit property from Sh. Chanderdeep. Sh. Chanderdeep has sold entire land in the said Khasra number. The plaintiff was required to call the said Sh. Chanderdeep for his evidence but the plaintiff failed.
(i) It is submitted by the appellant that the Ld. Trial Court has not given any explanation regarding any of the issues as to how it came to the conclusion that the plaintiff is the owner of the suit property and is entitled for the reliefs claimed by him. Not only this, the Ld. Trial Court gravely erred by passing this impugned judgment / decree because the plaintiff has failed to prove any of the issues framed and has not led conclusive evidence and in the absence of such evidence, the impugned order / judgment / decree is liable to be set-aside.
(j) It is further submitted by the appellant that the Ld. Trial Court failed to consider the lacuna in the plaint as well as contradiction RCA No. 6/19 Bihari Singh Vs. Ram Ashish Page: 7 of 12
-:: 8 ::- Date: 15.10.2022 in the statement of the PWs on vital points which are fatal for the plaintiff's evidence.
5. In reply to the present appeal, Ld. Counsel for the respondent stated that the present appeal is hopelessly barred by limitation, hence not maintainable and deserves dismissal with heavy costs. It is stated by the respondent that on the condonation of delay application, the appellant has not explained to day to day delay for filing the appeal and be dismissed.
6. It is stated by the respondent that the present appeal is not maintainable as the appellant is not the owner of the suit property. The appellant had got prepared some forged documents with one Sh. Shivaji Singh for which a criminal case bearing FIR no. 71/2012, U/s 420/447/468/471/120B/506 IPC has been registered on 07.05.2012 at P. S. Bhalswa Dairy, Delhi against the appellant and has re-iterated the brief facts of the case.
Heard both the parties and perused the Ld. Trial court record.
7. After considering the submissions of Ld. counsels for the Appellants and respondent and material evidence as well as documents available on record, my findings are as under :-
(a) The appellant's ground that statement of Sh. Chanderdeep under Section 161 of the Cr.P.C. cannot be considered by the trial court is not sustainable. It is apparent that though there is protection granted in relation to the statement recorded under section 162, Criminal Procedure Code, as regards the use thereof in civil proceedings, this court relies upon the Hon'ble Apex Court judgment in case "Kharti RCA No. 6/19 Bihari Singh Vs. Ram Ashish Page: 8 of 12
-:: 9 ::- Date: 15.10.2022 & Ors. Vs. State of Bihar" AIR 1981 SC 1068, has held that:
"Protection against the use of statement made before police during investigation is, therefore, granted to the accused by providing that such statement shall not be allowed to be used except for the limited purpose set out in the proviso to the section, at any inquiry or trial in respect of the offence which was under investigation at the time when such statement was made. But this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar. It has no application, for example in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the Indian Evidence Act."
Similar view has been taken by the Hon'ble Bombay High Court in case "Sh. Ranjit Satardekar & Anr. vs. Sh. Joe Mathias & Anr." (2006) 3 AIR Bom R 349. Since the defendant/ Appellant herein and plaintiff/ respondent herein had not called the Sh. Chanderdeep as witness for cross examination before the trial court, the statement of Sh. Chanderdeep under Section 161 of Cr.P.C. is relevant. On careful perusal of the FIR from the Trial Court Record, it is observed that no allegation has been levied against Sh. Chanderdeep in the FIR No. 71/2012. Therefore, the trial court had rightly RCA No. 6/19 Bihari Singh Vs. Ram Ashish Page: 9 of 12
-:: 10 ::- Date: 15.10.2022 considered this aspect.
(b) The another ground raised by the appellant that the plaintiff/ respondent herein in its site plan filed with the suit had shown 15 ft. wide gali on the west side of the property, the appellant further alleged that there was no 15 ft. gali either on the east side or the west side of the property, in fact, there was only 8 ft. ganda nala on the eastern side. It is relevant to mention the statement of the plaintiff as PW1 during cross-examination that:
"There is a 15 ft. wide road adjacent to the suit property towards the east. The attention of the witness is brought to the site plan in which it is shown in the west to which he pleads ignorance." Pertinently, there is ambiguity on this aspect, however, the trial court had rightly taken the note that the respondent/ appellant herein himself had not filed any site plan document. This court is of the opinion that the site plan as such has no evidentiary value but is used for identification of immovable property. In absence of any site plan placed on behalf of the appellant and on balance of probabilities, this court accepts the site plan of the respondent as the same can be corroborated with the duly proved registered GPA wherein it is stated that there is 15 ft. road on the east side of the property.
(c) Further, on careful perusal of the documents and pleadings before the trial court, it is observed that the documents of defendant/ RCA No. 6/19 Bihari Singh Vs. Ram Ashish Page: 10 of 12
-:: 11 ::- Date: 15.10.2022 appellant herein Ex. DW1/1 to Ex. DW1/11 being GPA, Affidavit, agreement to sell, receipt, Will the area of the property was 32 sq. yrds., however, the defendant/ appellant herein in its written statement had categorically mentioned that the defendant/ appellant herein had purchased a plot admeasuring 30 sq. yrds.
(d) On careful perusal of the trial court record, this court is of the opinion that he trial court had rightly taken the note that the signature of Sh. Chander Deep on the statement Ex. PW2/A exactly matches with the documents filed by the plaintiff/ respondent herein as Mark PW1/4, pertinently the alleged signatures of the Sh.
Chandeer Deep are apparently different in the documents filed by the defendant/ appellant herein as Ex. DW1/7 to Ex. DW1/11.
(e) The averment of the appellant that the trial court had failed to consider the statement PW-3 Smt. Sita Devi, who stated that she does not know the name from whom she purchased the suit property in the year 1992, such averment is misleading and not tenable, as PW-3 in her statement had not stated that she does not know the name from whom she purchased the property. In fact, PW-3 in her statement stated that "VOL. I have purchased the suit property form my previous owner and paid the amount for that, thereafter I took possession of the suit property. I do not remember the names of the witnesses on the document which was executed in my favor by the previous owner.....". Further, Smt. Sita Devi in her evidence by way of affidavit as Ex. PW3/A categorically stated that "that the deponent had purchased the above said plot in dispute from her previous chain Chander Deep S/o Khalifa Ram R/o 1048, Wazirpur RCA No. 6/19 Bihari Singh Vs. Ram Ashish Page: 11 of 12
-:: 12 ::- Date: 15.10.2022 Industrial Area, Azadpur, Delhi.........". Such fact has duly been corroborated by PW-5 Sh. Gorakhnath who is husband of Smt. Sita Devi, PW-5 in his statement also stated that my wife purchased the suit property from Sh. Chander Deep. Further, PW4 Sh. Sidh Nath Gupta also affirmed that said fact that the Smt. Sita Devi purchased property from Sh. Chander Deep.
(f) The averment of the appellant that he had proved his case to the extent that the appellant had purchased the suit property form Sh. Shivaji Singh through Sh. Umesh Singh is not tenable. The trial court had rightly considered this aspect that Sh. Umesh Singh/ DW- 5 deposed that "he does not know the number of plot which was to be sold". He even declined the contents of his affidavit saying he does not have any knowledge about the same. He also deposed that he knows nothing what was written in property documents.
(g) This court opines that there is no infirmity in the impugned judgment and decree dated 20.09.2018, passed by Ld. SCJ (North) Rohini, Delhi in Suit CS No. 580/12 (New no. 535320/201), hence the impugned judgment and decree is upheld.
8. Therefore, the present appeal is dismissed.
File be consigned to Record Room.
Announced in open Shivali Bansal
Court on 15.10.2022 Additional District Judge-03
North District, Rohini Courts, Delhi
RCA No. 6/19 Bihari Singh Vs. Ram Ashish Page: 12 of 12