Delhi District Court
Mukesh Agarwal (Huf) vs Naresh Kumar (Lr'S Of Late Dr. Braham ... on 1 October, 2024
IN THE COURT OF DISTRICT JUDGE-02: NORTH ROHINI
COURTS COMPLEX: DELHI
CNR NO. DLNT01-011099-2022
RCA DJ 45/22
IN THE MATTER OF:-
1. MUKESH AGGARWAL(HUF)
THROUGH ITS KARTA SH. MUKESH AGGARWAL
S/O SH. JAGDISH PRASAD AGGARWAL
FLAT NO. UJL 020804, UJJAWALA, THE CONDOVILLE,
RAJARHAT, NEWTOWN, BEHIND CITY CENTER2,
GOPALPUR (M), NORTH 24 PARGANAS,
KOLKATA-700157, WEST BENGAL .......Appellant NO. 1
2. SH. SATISH CHANDER BHATI
S/O SH. DHARAMNATH BHATT
R/O DDA LIG FLAT NO. 18, FIRST FLOOR,
POCKET-4, SECTOR A-10, NARELA, DELHI
110040
ALSO AT : KHASRA NO. 8/7/2
BABU JAGJEEVAN RAM COLONY,
BHORGARH, DELHI-110040
........Appellant NO. 2
RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 1 of 31
VERSUS
1. SH. NARESH KUMAR
(LEGAL REPRESENTATIVE OF LATE DR. BRAHAM SINGH)
S/O SH. BHULLAN SINGH
R/O VILLAGE/POST RASANA,
DISTRICT MEERUT,
UTTAR PRADESH-250002 ........RESPONDENT NO. 1
2. SMT. SURESH
W/O SH. DILE RAM
R/O GALI NO. 23-B, SAWATANTER NAGAR,
NARELA, DELHI-110040 ........RESPONDENT NO. 2
3. SH. HARI PRAKASH
S/O SH. BALJEET SINGH
R/O H. NO. 225, BABU JAGJIVAN RAM COLONY,
BHORGARH, DELHI-110040. .........Respondent NO. 3
Date of institution : 24.11.2022
Date of Conclusion of Argument : 25.09.2024
Date of Order/Judgment : 01.10.2024
RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 2 of 31
REGULAR CIVIL APPEAL UNDER SECTION 96 CPC AGAINST
THE JUDGMENT/DECREE DATED 21.02.2022 PASSED BY, CIVIL
JUDGE-02 (CENTRAL), TIS HAZARI COURTS, DELHI IN SUIT
NO. 59836/2016
JUDGMENT
1. By way of the present appeal, the appellants/defendant no. 1 and 4 (before Ld. Trial Court) are challenging judgment and decree dated 21.02.2022 passed by, Civil Judge-02 (CENTRAL), Tis Hazari Courts, Delhi in Suit No. 59836 Of 2016 titled as "Naresh Kumar (legal representative of late Dr. Braham Singh) Vs. Mukesh Aggarwal (HUF) and Ors." Parties will be referred as per their status before the Learned Trial Court.
PLAINTIFF'S CASE
2. Plaintiff has sought four main reliefs i.e. recovery of possession, mesne profit/damages, declaration and permanent injunction.
3. It is the case of the plaintiff, as per amended plaint dated 18/11/05 that the plaintiff purchased property bearing "khasra no. 28/7/2 measuring 110 sq. yards., situated at village Bhorgarh, Delhi Bearing municipal number 225, Babu Jagjeevan Ram colony, Delhi"(herein after referred to as suit property) from Smt. Dharam Devi wife of Sh. Madan Mohan on 15.05.1998 through GPA, Agreement to sell and receipt.
RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 3 of 31
4. It is further the case of the plaintiff that defendant no.3 was put in possession being a distant relative in respect of 40 sq. yards shown in red in site plan as a tenant at rent of Rs. 1500/- per month in the year 1998.
5. It is further the case of the plaintiff that out of 110 sq. yards plaintiff sold vacant portion of 70 sq. yards to Dwarka Prasad Aggarwal on 07.04.1999 through G.P.A., Agreement to sell and receipt abutting 40 sq. yards which was given to defendant no. 3 as tenant.
6. It is further the case of the plaintiff that defendant no. 3 did not give rent after March 2004. Whereabouts of defendant no.3 were not traceable. An FIR no. 459/04 under section 420/468/471/120B IPC was registered at police station Narela.
7. It is further the case of the plaintiff that during investigation the police seized documents. It transpired that one Smt. Suresh in connivance with Sh. Mukesh Aggarwal forged documents dated 20.12.2000 in her favour. They transferred 40 sq. yards. of tenanted premises (hereinafter referred to as suit property) to Hari Prakash on 22.04.2002.
8. It is further the case of the plaintiff that on the basis of the documents seized the plaintiff came to know that Hari Prakash by vacating the tenanted premises had put Sh. Satish in possession. Hari Prakash transferred the property in favor of Mukesh Aggarwal (HUF) on 13.04.2004.
RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 4 of 31
9. It is further the case of the plaintiff that Mukesh Aggarwal (HUF) did these above mentioned acts in criminal conspiracy. On the strength of these facts the suit was filed. Prayer is that plaintiff is entitled for recovery of possession, mesne profits, declaration and permanent injunction.
CASE OF THE DEFENDANTS
10. Joint Written statement dated 2/5/06 was filed by Mukesh Aggarwal (HUF) and Sh. Satish.
11. In essence it is the case of Mukesh Aggarwal that he is owner in possession on the strength of Agreement to sell, receipt, GPA executed by Sh. Hari Prakash in his favour. It is further the case of the Sh. Mukesh Aggarwal that plaintiff have not approach the court with clean hands and have suppressed material facts.
12. A separate written statement was filed by Smt. Suresh dated 10/03/11. In essence the forgery of documents in her favour and further transfer in favour of Hari Parkash was denied and an objection of misjoinder of parties was taken.
13. A separate written statement was filed by Sh. Hari Prakash dated 19-12-05. It is the case of Hari Prakash that in connivance with defendant no 1 documents were executed in his favour qua suit property. Then documents were executed in favour of defendant no 1 by him. Same was done under threat from one Rakesh property dealer and defendant no. 1. One amended written statement of defendant no 3 RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 5 of 31 dated 13/10/07 is also on record. Vide order dated 03/02/11 written statement dated 19-12-05 itself was ordered to be considered in suit.
REPLICATION
14. Replication dated 17.07.2006 was filed by the plaintiff to written statement of defendants no. 1 and 4. The case of the plaintiff was reiterated and the contents of written statements were denied.
ISSUES
15. Vide order dated 29.10.2011, following issues were framed by the Learned Trial Court:
(I) Whether the plaintiff is entitled for recovery of possession, as prayed for? OPP
(ii) Whether the plaintiff is entitled for any mesne profits? If yes, from what date and at what rate of interest? OPP
(iii) Whether the plaintiff is entitled for declaration and permanent injunction, as prayed for? OPP
(iv) Whether the suit of the plaintiff is properly valued? OPD
(v) Whether the suit of the plaintiff is bad for mis-joinder of the parties? OPD.
(vi) Relief. RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 6 of 31
16. Original plaintiff had died on 15/10/12. Suit was abated vide order dated 10/04/13. LR's were impleaded vide order dated 08/12/15.
Further proceedings were conducted thereafter.
17. PLAINTIFF EVIDENCE.
SR Name of witness Documents exhibited
No.
1. PW-1 Braham Singh His evidence by way of affidavit is Ex.
PW 1/A he relies upon the documents
This witness was not
cross examined as he had 1.General Power of Attorney Ex. PW died on 15.10.2012 as 1/1.
per order dated 10.04.2013 passed by 2. Will dated 15.05.1998 executed by Ld. Trial Court. Smt. Dharam Devi is exhibited as Ex.
PW 1/2.
3. Agreement to sell dated 15.05.1998 executed by Smt.Dharam Devi Ex. PW 1/3(colly).
4. Receipt of sum of Rs. 50,000/-
received by Smt. Dharam Devi from Sh.
Brahma Singh is Ex. PW 1/4.
5. Site plan of the suit property is Ex.
PW 1/5.
6. Ex.PW1/6 is the copy of forensic science report dated 23.11.2005 & dated 13.05.2011.
RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 7 of 31
7. Mark A (colly) is GPA.
8. Mark B is Deed of Will.
9. Mark C is the Charge Sheet dated 22.02.2012 and challan filed by IO in the FIR no. 459/2004.
10. Mark D is the copy of telephone connection bill.
2. PW2 Sh. Naresh Kumar He tendered his evidence by way of (Legal Representative of affidavit Ex. PW 2/A. He relied up on Late Dr. Braham Singh), the following documents which have already been exhibited in the evidence of PW-1 on 26.04.2012:-
1. Ex. PW1/1 is the copy of the original SPA.
2. Ex. PW 1/2 to Ex. PW1/4 (colly) are the copies of GPA, Will, Agreement to Sell and receipt.(wrongly mentioned as PW1/5 colly in statement dated 27.11.18 of PW-2.)
3. Ex. PW 1/5 is site plan.(wrongly mentioned as PW1/6 in statement dated 27.11.18 of PW-2.)
4. Mark A & B are the copy of the GPA and Will.
5. Mark C (colly) is the copy of the RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 8 of 31 charge sheet dated 22.02.2012.
6. Mark D is the copy of the telephone connection bill.
He further relied upon the following documents:-
1. Ex.PW2/1 is the copy of the SPA dated 21.12.2010 (OSR)
2. Ex.PW 1/6(colly) (document not exhibited in file) are the copy of the Forensic Science report dated 23.11.2005 and 13.05.2011 and certified copy of order dated 22.02.2012 passed by the Hon'ble Court of Sh. Deepak Vasan, Ld. MM, Rohini Delhi in case FIR no. 459/2004 P.S. Narela U/s 420/468/471/120-B IPC, titled State Vs. Hamid & Ors.
3. PW 3 Sh. Suresh Kumar He stated in his examination in chief that he was a summoned witness and brought the summoned record i.e. Charge sheet/final report and Order sheet dated 22.02.2012 and FSL reports dated 23.11.2005 and 13.05.2011 respectively along with letter dated 27.06.2011 filed in case titled as "State vs. Hamid etc."
bearing FIR no. 459/04 P.S. Narela, Delhi (Goshwara no. 212/Narela) which was decided on 02.03.2015. The Charge-
RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 9 of 31 sheet/final report is exhibited as Ex. PW 3/1(colly)(OSR) and order-sheet dated 22.02.2012 and FSL reports dated 23.11.2005 and 13.05.2011 respectively along with letter dated 27.06.2011 are already Ex. PW 2/7(colly).
18. PW 2 Naresh Kumar SPA holder of plaintiff closed PE on 23.10.2019.
DEFENDANTS' EVIDENCE
19. Defence of defendants was closed vide order dated 23.07.2019. No DE was lead.
SUMMARY OF FINDINGS BY LEARNED TRIAL COURT.
20. Issue no. 1 was:
"Whether the plaintiff is entitled for recovery of possession, as prayed for? OPP"
21. Learned Trial Court returned a finding that ownership documents in favour of Mukesh Aggarwal were neither brought on record nor proved.
22. Defence of Mukesh Aggarwal and Sh. Satish was struck off vide order dated 23.07.2019. On the basis of unchallenged testimony of PW 2 the issue was decided in favour of plaintiff.
RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 10 of 31
23. Issue no. 2 was:
"Whether the plaintiff is entitled for any mesne profits? If yes, from what date and at what rate of interest? OPP"
24. Learned Trial Court returned a finding that Rs. 1000/- per month as mesne profit from April 2004 to December 2004 enhancable @ 8% per annum till date of handing over the suit property, was granted. For period during will suit stood abated and period during which plaintiff sought time to address final arguments was excluded for grant of interest on mesne profits.
25. Issue no. 3 was:
"Whether the plaintiff is entitled for declaration and permanent injunction, as prayed for? OPP"
26. Learned Trial Court returned a finding that details of documents are not mentioned, declaration of documents as null and void cannot be granted. Prayer for permanent injunction was allowed. Issue was decided partly in favour of the plaintiff.
27. Issue no. 4 was:
"Whether the suit of the plaintiff is properly valued? OPD"
28. Learned Trial Court returned a finding that defendant did not discharge the burden and the issue was decided in favour of plaintiff.
29. Issue no. 5 was:
RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 11 of 31 "Whether the suit of the plaintiff is bad for mis-joinder of the parties? OPD"
30. Learned Trial Court returned a finding that no specific averment regarding misjoinder of parties was made and no evidence has been lead by the defendants. Issue was decided in favour of the plaintiff.
ARGUMENTS OF LEARNED COUNSEL FOR THE PARTIES FIRST ARGUMENT
31. Learned counsel for the defendant no. 1 and 4 has argued that in para 12 of the impugned judgment the Learned Trial Court has stated that the plaintiff has based his case on registered GPA, will, Agreement to sell and receipt dated 15.05.1998. It is argued that all these documents are not registered.
32. Per contra counsel for the plaintiff states that the prayer in the present suit was for possession and mesne profits. Title is not relevant. It is stated that will is registered.
SECOND ARGUMENT
33. It is further argued that at page no. 102 of the impugned judgment in para 6 & 7 same documents have been marked as Ex.PW1/1 with different particulars and similar discrepancy in other documents is pointed out in table at page 14 of the grounds of appeal.
34. Per contra counsel for the plaintiff states that the error is merely typographical in nature and does not effect the merits of the case.
RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 12 of 31 THIRD ARGUMENT
35. It is further argued that the possession of defendant no. 1 and 4, appellants herein is authorized and defendant no.1 is owner having purchased suit property from Shri Hari Prakash by agreement to sell, registered GPA, registered will, notarized possession letter, notarized affidavit, notarized receipts, notarized NOC.
36. Per contra counsel for the plaintiff contends that no evidence has been lead by the defendants. Further Hari Prakash was not the owner and he could not have conferred title upon the defendant no. 1.
FOURTH ARGUMENT
37. It is further argued that page no. 253 of the lower court record order dated 15.05.2009 shows that documents were seized by the police and therefore the defendants could not produce the same before the Learned Trial Court.
38. Per contra counsel for the plaintiff argues that defendant no. 1 and 4 were at liberty to prove due to secondary evidence. It is argued that defendants did not pursue the case before the Learned Trial Court and only when in execution warrants of possession were issued on 28.10.2022, the defendants have approached this court. It is further argued that defendants did not produce documents in trial court.
FIFTH ARGUMENT RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 13 of 31
39. It is further argued that defendants had shifted to Kolkata due to death of brother of Karta of defendants no. 1 and therefore, he could not pursue the case before the Learned Trial Court.
40. Per contra counsel for the plaintiff argues that defendants had knowledge of the case and ought to have defended.
SIXTH ARGUMENT
41. It is further argued that the allegations of forgery are not directed against the present defendants.
42. Per contra counsel for the plaintiff argues that Sh. Mukesh Aggarwal is the beneficiary.
43. No other point was argued by the counsel for the parties.
44. FOLLOWING POINTS OF DETERMINATION UNDER ORDER 41 RULE 31 CPC ARISE FOR CONSIDERATION BY THIS COURT:
i. Whether the plaintiff is entitled to relief of possession and mesne profits on the basis of registered GPA, will, Agreement to sell and receipt dated 15.05.1998?
ii. Whether the discrepancy in mentioning of the particulars of documents in impugned judgment renders the same illegal?
iii. Whether defendant no. 1 is owner having purchased suit property from Shri Hari Prakash by agreement to sell, registered GPA, registered RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 14 of 31 will, notarized possession letter, notarized affidavit, notarized receipts, notarized NOC?
iv. Whether the defendants could not produce the documents and was deprived of opportunity to lead evidence as documents were seized by the police?
v. Whether the defendants had shown good cause or his non appearance before the Trial Court?
vi. Whether in absence of proof of forgery by defendants the plaint ought to be dismissed?
vii. Whether the judgments relied upon by counsel for the defendants are applicable to facts of present case?
BRIEF RECAPITULATION OF THE FACTS
45. Court has heard rival submissions, pursued case record and carefully considered the submissions. Following findings are being returned:
46. Tersely put in chronological order, the facts of the case as pleaded by plaintiff put in tabular form are as under:
Date Event
15.05.1998 Plaintiff purchased 110 Sq. yards from
Dharam Devi vide agreement to sell,
RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 15 of 31 GPA, Receipt.
1998 Hari Prakash relative of plaintiff was put in possession of 40 sq. yards on rent @ 1500/- per month.
07.04.1999 Plaintiff sold 70 sq.yards out of 110 sq. yards to Dwarka Prasad Aggarwal vide GPA, Agreement to sell, receipt.
40 sq. yards was possessed by Hari Prakash 20.12.2000 Suresh and Mukesh Aggarwal allegedly forged documents in favour of Smt. Suresh 22.04.2002 Suresh sold property to Hari Prakash Hari Prakash put one Sh. Satish in actual physical possession of 40 sq. yards of suit property.
13.04.2004 Hari Prakash sold 40 sq. yards of suit property to Mukesh Aggarwal in conspiracy.
FINDINGS ON POINTS OF DETERMINATION
47. First point of determination is:
RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 16 of 31 i. Whether the plaintiff is entitled to relief of possession and mesne profits on the basis of registered GPA, will, Agreement to sell and receipt dated 15.05.1998?
48. The argument on behalf of defendants that in para 12 of the impugned judgment the Learned Trial Court has stated that the plaintiff has based his case on registered GPA, will, Agreement to sell and receipt dated 15.05.1998. But all these documents are not registered, so plaintiff cannot be granted relief is rejected. It is rightly argued by counsel for the respondent/plaintiff that the prayer in the present suit was for possession and mesne profits.
49. Further hon'ble Supreme Court in case titled as Suraj Lamp and Industries Private Limited v. State of Haryana, 183 (2011) DLT 1 (SC), has held that General Power of Attorney transactions do not convey any title or interest in an immovable property.
50. However, this judgment of Hon'ble Supreme Court was explained in case titled SHRI RAMESH CHAND Versus SURESH CHAND & ANR. Decided by Hon'ble Delhi High Court on 9th April, 2012 it was held that :
"........A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof....."
RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 17 of 31
51. Further in case titled as HARDIP KAUR versus KAILASH & ANR. Decided by Hon'ble Delhi High Court on 18th May, 2012 it was held that :
".......... A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof......."
52. In light of the above the suit of the plaintiff as framed is maintainable in law. There is no infirmity in the impugned judgment. The point of determination is answered against the defendants.
SECOND POINT OF DETERMINATION IS:
53. Whether the discrepancy in mentioning of the particulars of documents in impugned judgment renders the same illegal?
54. The arguments on behalf of defendants that in impugned judgment in para 6 & 7 same documents have been marked as Ex.PW1/1 with different particulars and similar discrepancy in other documents is pointed out in table at page 14 of the grounds of appeal does not render the impugned judgment illegal. It is rightly contended by counsel for the plaintiff that the error is merely typographical in nature and does not effect the merits of the case. In totality of circumstances learned trial court has carefully analyzed and dealt with the material available on record.
55. The second point of determination is also decided against the defendants.
RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 18 of 31 THIRD POINT OF DETERMINATION
56. Whether defendant no. 1 is owner having purchased suit property from Shri Hari Prakash by agreement to sell, registered GPA, registered will, notarized possession letter, notarized affidavit, notarized receipts, notarized NOC?
57. The argument on behalf of defendants that the possession of defendant no. 1 and 4, appellants herein is authorized and defendant no. 1 is owner having purchased suit property from Shri Hari Prakash by agreement to sell, registered GPA, registered will, notarized possession letter, notarized affidavit, notarized receipts, notarized NOC is rejected. No evidence has been lead by the defendants. Further Hari Prakash was not shown to be the owner and he could not have conferred title upon the defendant no. 1 as alleged.
58. The third point of determination is also answered against the defendants.
FOURTH POINT OF DETERMINATION
59. Whether the defendants could not produce the documents and was deprived of opportunity to lead evidence as documents were seized by the police?
60. The arguments on behalf of the defendants that page no. 253 of the lower court record order dated 15.05.2009 shows that documents were seized by the police and therefore the defendants could not produce the same before the Learned Trial Court is rejected. It is rightly argued by RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 19 of 31 plaintiff that defendants were at liberty to prove documents by secondary evidence. It is further rightly argued on behalf of plaintiff that defendants did not pursue the case before the Learned Trial Court. Only when in execution warrants of possession were issued on 28.10.2022, the defendants have approached this court and defendants did not produce documents in trial court.
61. Resultantly the fourth point of determination is answered against the defendants.
FIFTH POINT OF DETERMINATION
62. Whether the defendants has shown good cause or his non appearance before the Trial Court?
63. The argument on behalf of the defendants that he had shifted to Kolkata due to death of brother of Karta of defendant no. 1 and therefore, he could not pursue the case before the Learned Trial Court does not show 'good cause'. It is rightly contended by counsel for the respondent argues that defendants had knowledge of the case and ought to have defended the same. Even if defendants had to go on death of his brother, he was expected to be back within reasonable time to pursue the case before the Ld. Trial Court. No prayer for adjournment of proceedings on this ground is shown to have been made before the Ld. Trial Court.
64. This point of determination is decided against the defendants.
SIXTH POINT OF DETERMINATION RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 20 of 31
65. Whether in absence of proof of forgery by defendants the plaint ought to be dismissed?
66. The argument on behalf of defendants that the allegations of forgery are not directed against the present defendants is rejected. It is rightly contended by counsel for the respondent that Sh. Mukesh Aggarwal is the beneficiary. Further PW 2 Sh. Naresh Kumar in his evidence by way of affidavit in para 8 has elaborated about the connivance and forgery of documents. This evidence of PW 2 has gone unrebutted and unchallenged. On 27.11.2018 despite opportunity no cross examination was done as is clear from the statement of PW 2 Sh. Naresh Kumar recorded on 27.11.2018.
67. This point of determination is also decided against the defendants.
SEVENTH POINT OF DETERMINATION
68. Whether the judgments relied upon by counsel for the defendants are applicable to facts of present case?
69. Discussion on Compilation of Citations on behalf of the appellants:
1. State of Rajasthan & Ors. Vs. Basant Nahata, 2005, (12) SCC 77: (2005) SLT 609 (para 13) is relied upon to contend that (purpose and validity of POA with limited powers to agents) power of attorney holder has limited rights. There is no dispute with the proposition of law laid down in this case. Same is RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 21 of 31 inapplicable to facts of present case as appellant did not lead evidence to show power of attorney is forged. No cross examination of PW-2 Or PW-1(before he died) was conducted.
The evidence of PW-2 ought to be relied upon in circumstances of present case.
2. Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Ors., [(2005) 2 SCC 2017] is relied upon to contend that (POA holder cannot depose for the principal for the acts done by the principal and not by the POA holder). There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case as no cross examination of PW-2was conducted to establish whether acts were within personal knowledge of attorney holder or not. PW-1 was not cross examined before he died.
3. Man Kaur (dead) by Lrs. vs. Hartar Singh Sandha (2010) 10 SCC 512 : (2010) KHC 4741) ( Para 10) is relied upon to contend that evidentiary value of deposition of POA holders with limited powers is limited. There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case as no cross examination of PW-2 was conducted to establish whether acts were within personal knowledge of attorney holder or not.
4. M/s JCR Trading Pvt. Ltd. Vs. A.J. Varghese and others, AIR 2009 (NOC) 2120 (KER):(2009 KHC 245) (para 5) is relied upon to contend that (he agent is not capable of deposing RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 22 of 31 on behalf of Principal. There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case as no cross examination of PW-2 was conducted to establish whether acts were within personal knowledge of attorney holder or not.
5. B.K. Muniraju Vs. State of Karnataka, (2008) 4 SCC 451 (para -12) is relied upon to contend that in order to know the real nature of the document, one has to look into the recitals of the document and not the title of the document. There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case as recitals in the documents also do not further the case of the appellant. Defence of appellants was struck off no DE was lead. Documents relied upon at this stage are not proved as per law.
6. Vidhyadhar Vs. Manikrao [(1999) 3 SCC 573] is relied upon to contend that (in order to know the real nature of the document, one has to look into the recitals of the document and not the title of the document) There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case as recitals in the documents also do not further the case of the appellant. Appellants ownership is not proved even if complete chain of documents is considered. Defence of appellants was struck off no DE was lead.
7. Subbegowda v. Thimmegowda [(2004) 9 SCC 734] is relied upon to contend that in order to know the real nature of the RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 23 of 31 document, one has to look into the recitals of the document and not the title of the document. There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case as recitals in the documents also do not further the case of the appellant. Appellants ownership is not proved even if complete chain of documents is considered. Defence of appellants was struck off no DE was lead.
8. Bishwanath Prasad Singh v. Rajendra Prasad [(2006) 4 SCC 432] is relied upon to contend that in order to know the real nature of the document, one has to look into the recitals of the document and not the title of the document. There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case as recitals in the documents also do not further the case of the appellant. Appellants ownership is not proved even if complete chain of documents is considered. Defence of appellants was struck off no DE was lead.
9. Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale (D) & Ors, AIR 2007 SC 2577: 2007 (6) SCC 737 (Para 10) is relied upon to contend that in suit for recovery of possession, the burden of proof on the plaintiff to prove title. There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case. Further in case titled as Ramesh Chand Vs. Suresh Chand and Anr. decided by Hon'ble High Court of Delhi on 09.04.2012 it has RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 24 of 31 been held that right to possession of immovable property arises not only from complete ownership but also by person on basis of better title or better entitlement to possession. No cross examination of PW-2 was conducted to demolish plaintiffs case. Defence of appellants was struck off no DE was lead.
10. Jagdish Prasad Patel v. Shivnath, (2019) 6 SCC 82 (Para 41) is relied upon to contend that burden of proof in the suits for declaration of title and possession on the strength of own title). There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case. Further in case titled as Ramesh Chand Vs. Suresh Chand and Anr. decided by Hon'ble High Court of Delhi on 09.04.2012 it has been held that right to possession of immovable property arises not only from complete ownership but also by person on basis of better title or better entitlement to possession. No cross examination of PW-2 was conducted to demolish plaintiffs case.
11. P. Kishore Kumar v. Vittal K. Patkar, 2023 INSC 1009:
2024-1 СТС 547; 2023-4 CurCC (SC) 278 (Para 23, 24, 30) is relied upon to contend that the plaintiff failed to meet the burden of proof imposed on him by law. There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case. Further in case titled as RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 25 of 31 Ramesh Chand Vs. Suresh Chand and Anr. decided by Hon'ble High Court of Delhi on 09.04.2012 it has been held that right to possession of immovable property arises not only from complete ownership but also by person on basis of better title or better entitlement to possession. No cross examination of PW-2 was conducted to demolish plaintiffs case. Plaintiff in present case has duly discharged burden on basis of preponderance of probability.
12. Smriti Debbarma (Dead) Through Legal Representative v. Prabha Ranjan Debbarma and Others, 2023 SCC Online SC 9 (Para 19, 30, 31) is relied upon to contend that burden of proof lies on plaintiff and can be discharged only when he's able to prove title. The weakness of the defence can't be a justification to decree the suit. There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case. Further in case titled as Ramesh Chand Vs. Suresh Chand and Anr. decided by Hon'ble High Court of Delhi on 09.04.2012 it has been held that right to possession of immovable property arises not only from complete ownership but also by person on basis of better title or better entitlement to possession. No cross examination of PW-2 was conducted to demolish plaintiffs case. Plaintiff in present case has duly discharged burden on basis of preponderance of probability.
RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 26 of 31
13. Maria Margadia Sequeria Fernandes & Ors vs. Erasmo Jack De Sequeria (D) Tr. Lrs. & Ors, 2012 (5) SCC 370: 2012 (3) SCALE 550(para 29, 32, 43, 52, 80, 82, 84, 86) are relied upon to contend that (False claims and false defences misconceived injunction suits truth shall prevail). There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case. Further in case titled as Ramesh Chand Vs. Suresh Chand and Anr. decided by Hon'ble High Court of Delhi on 09.04.2012 it has been held that right to possession of immovable property arises not only from complete ownership but also by person on basis of better title or better entitlement to possession. No cross examination of PW-2 was conducted to demolish plaintiffs case. Plaintiff in present case has duly discharged burden on basis of preponderance of probability.
14. Dalip Singh Vs State of U.P. & Ors. (2010) 2 SCC 114 (Paras 1, 3, 5 & 2) are relied upon to contend that False cases pollute the stream of justice. There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case. No cross examination of PW-2 was conducted to demolish plaintiffs case. Plaintiff in present case has duly discharged burden on basis of preponderance of probability.
15. S. Chattanatha Karayalar vs The Central Bank of India and Others. AIR 1965 SC 1856 : 1965 (3) SCR 318 is relied upon to RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 27 of 31 contend that Transaction containing in multiple documents need to be read and interpreted collectively. There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case as recitals in the documents also do not further the case of the appellant. No DE was lead. documents relied at this stage cannot be considered.
16. Satish Chander Ahuja vs Sneha Ahuja, (2021) 1 SCC 414:
Air Online 2020 SC 784 (para 155 & 156) is relied upon to contend that (No embargo for a civil court to consider the evidence led in the criminal proceedings). There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case In present case despite opportunity defence evidence was not lead. No criminal proceedings were brought on record before trial Court. Civil Court has to decided case based on material before it.
17. Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr. [(2005) 4 SCC 370 (Para 24) is relied upon to contend that (the findings recorded in one proceeding may be treated as final or binding in the other). There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case In present case despite opportunity defence evidence was not lead. No criminal proceedings were brought on record. Civil Court has to decided case based on material before it.
RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 28 of 31
18. Ram Chandra Singh vs Savitri Devi and Ors, (2003) 8 SCC. 319 (Para 15 to 18) is relied upon to contend that plaintiff has committed fraud and suppressed material facts. There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case In present case despite opportunity defence evidence was not lead. No cross examination of PW-2 was conducted to demolish plaintiffs case. Plaintiff in present case has duly discharged burden on basis of preponderance of probability.
19. Indian Bank v/s M/s Satyam Fibres (India} Pvt. Ltd., 1996 (5) SCC 550 (Para 21) is relied upon to contend that no judgment, order or decree can be allowed if obtained by fraud. There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case In present case despite opportunity defence evidence was not lead. No cross examination of PW-2 was conducted to demolish plaintiffs case. Plaintiff in present case has duly discharged burden on basis of preponderance of probability.
20. S.P. Chengalvaraya Jagannath Naidu v. Jagannath, (1994) 1 SCC 1 (Para 6) is relied upon to contend that litigant is bound to approach Court with clean hands). There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case In present case despite opportunity defence evidence was not lead. No cross examination of PW-2 was conducted to demolish plaintiffs case. Plaintiff in present RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 29 of 31 case has duly discharged burden on basis of preponderance of probability.
21. MCD v. State of Delhi, (2005) 4 SCC 605 (Para 21) is relied upon to contend that Suppressing the material facts and vital documents tantamount to fraud. There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case In present case despite opportunity defence evidence was not lead. No cross examination of PW-2 was conducted to demolish plaintiffs case. Plaintiff in present case has duly discharged burden on basis of preponderance of probability.
22. Hemendra Rasiklal Ghia v. Subodh Mody, (2008) 5 CTC 577: 2008 SCC Online Bom 1017 (Para 62,86, 87) is relied upon to contend that Raising objections on admissibility of documents). There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case In present case despite opportunity defence evidence was not lead. No cross examination of PW-2 was conducted to demolish plaintiffs case. Plaintiff in present case has duly discharged burden on basis of preponderance of probability.
23. Prema Sudhamani and others vs. D. Krishna Rao and Otshers, OSA No. 189/2007, Madras HC (para 6) is relied upon to contend that(No validity of POA after death of Executor). There is no dispute with the proposition of law laid down in this case. Same is inapplicable to facts of present case. In present RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 30 of 31 case despite opportunity defence evidence was not lead. No cross examination of PW-2 was conducted to demolish plaintiffs case. Plaintiff in present case has duly discharged burden on basis of preponderance of probability-2 is son of deceased and facts deposed were in his personal knowledge.
70. Thus the cases relied upon by the defendants are not applicable in facts of present case. This point of determination is decided against the defendants.
71. As a result, the present appeal is dismissed with costs. Because the defendants has utterly failed to prove any illegality, infirmity and perversity in the impugned judgment dated 21.02.2022. The appeal is dismissed being devoid of merits. The judgment and decree of the Ld Trial Court dated 21.02.2022 is upheld. Pending applications if any stand disposed off.
72. File of the appeal be consigned to record room. A copy of this order along with the TCR be sent back to the Learned Trial Court immediately by the Ahlmad. Digitally signed VIKRAM by VIKRAM BALI Date:
BALI 2024.10.01 16:31:27 +0530 (Vikram Bali) District Judge-02, North Announced in the open Court. Rohini Court Complex, Rohini (Order contains 31 pages) Delhi/01.10.2024 RCA DJ 45/22 MUKESH AGGARWAL(HUF) Vs. SH. SATISH CHANDER BHATI and Ors. Page no. 31 of 31