Delhi District Court
Shri Harish Chauhan vs Sh. Hans Raj Goel on 7 December, 2018
IN THE COURT OF SH. RAJNISH BHATNAGAR
DISTRICT & SESSIONS JUDGE, NORTHWEST DISTRICT
ROHINI COURTS : DELHI
IN RE :
RCT Number : 04/16
Date of registration : 13052015
Reserved for Judgment on : 11092018
Judgment announced on : 07122018
1. Shri Harish Chauhan
S/o Sh. M.L. Chauhan,
R/o A58, Amrit Nagar,
New Delhi110003.
2. Smt. Prakash Wati
Through her General Power of Attorney Holder,
Smt. Usha Rani
W/o Shri Harish Chauhan
R/o A58, Amrit Nagar,
New Delhi110003.
..... Appellants
Versus
Sh. Hans Raj Goel
S/o Shri C.B. Gupta
R/o 272. Bagh Kare Khan,
Kishan Ganj, Delhi110007.
..... Respondent
JUDGMENT
1. Impugned in this appeal is the order dated 31.03.2015 in Execution petition no. No.14/2014 titled Hans Raj Goel Vs. Ashok Goel passed by the Ld. Additonal Rent ControllercumAdministrative Civil Judge (North West) whereby the objections dated 11.12.1998 filed under section 25 of Delhi Rent Control Act were dismissed.
RCT No. : 4/16 Page 1 of 192. The said objections were filed by the appellants Shri Harish Chauhan and Smt. Parkashwati jointly. The objections were filed in an execution petition seeking execution of a decree of eviction passed under section 14(1)(a) of Delhi Rent Control Act.
3. Aggrieved from the same the appellants have filed the instant appeal.
4. Before venturing into the arguments advanced by the ld. Counsel for the parties, a brief look into basic facts constituted in the rival pleadings goes as under:
(i). An eviction petition u/s14(1)(a) of the DRC Act bearing no. E169/96 had been filed by Sh. Hans Raj Goel against the tenant Sh. Ashok Goel on 1 8.12.1996 in respect of the ground floor portion consisting area of 1400 sq. ft.
(approx) out of property bearing no.C9/3, Wazirpur Industrial Area, Delhi.
(ii). The respondent in the said eviction petition played truant despite service of notice by substituted service of publication in newspaper. The matter proceeded as exparte.
(iii). An order u/s 15(1) of DRC Act had been passed on 20.07.98 directing the respondent to deposit the arrears of rent at the rate of Rs.2000/ per month w.e.f. 01.01.1995 till 31.01.1996 and at the rate of Rs.2200/ per month w.e.f. 01.02.1996 till the end of the month previous to the month in which the payment is made within a period of one month from the date of order.
(iv). The above order remained noncomplied thus disentitling the respondent therein the benefit u/s 14(2) of the DRC Act. Eviction order followed on 05.10.98.
(v). The respondent herein filed an execution petition 23.10.1998. The objections u/s 25 of DRC Act were filed by the appellants herein on 11.12.1998.
(vi). The matter visàvis the objections proceeded in evidence. The objectors examined as many as four witnesses and the decree holder examined himself only as his sole witnesses.
(vii). The Ld. Executing Court dismissed the objections vide order dated 23.09.2009. On a challenge in appeal the Ld. ARCT vide order dated RCT No. : 4/16 Page 2 of 19 11.02.2014 remanded back the matter to the Ld. Executing Court with a direction to decide afresh after giving opportunity to the objectors (appellants herein) for leading further evidence.
(vii). Availing the said opportunity the objectors (appellants herein) examined two more witnesses and reexamined the witness OW3.
(viii). After hearing the parties concerned the objections were dismissed by the impugned order, leading to the filing of this appeal.
5. Oral arguments have been addressed by the Ld. Counsel for the parties and they have also filed their respective written submissions. Reference to the case law has also been made copiously.
6. In a nutshell, the prime arguments of the appellants are:
(i). in the year 1967 M/s. Wires & General Mills was a partnership firm of Sh. Hans Raj Goel, the Decree Holder and the respondent herein, and Smt. Prakash Wati, the objector and the appellant no. 2 herein and it was under this status of the parties that the partnership firm was allotted a built up property bearing no.C9/3, Wazipur Industrial Area, measuring 618 sq. yards, by the DDA vide allotment letter dt. 13.08.1967.
(ii). The appellant no. 2 sold her portion comprising 309 sq. yards to the appellant no. 1 Shri Harish Chauhan vide agreement to sell executed on 04.05.1995. Shortly thereafter, the respondent herein sold his share measuring 309 sq. yards to one Sh. Ram Niwas on 10.05.1995.
(iii). Sh. Ashok Goel was the tenant of the appellant no. 2 in respect of a portion measuring about 1400 sq. feet under Smt. Prakashwati at monthly rent of Rs.4000/ and had been paying the rent till the time he vacated.
(iv). Shri Ashok Goel was getting electricity through one electricity meter no.8611251 which was installed at the premises in the name of Delhi Wires & General Mills and he used to make a payment of Rs. 2000/ per month to the respondent herein.
(v). In January 1996 the said Shri Ashok Goel vacated the premises and RCT No. : 4/16 Page 3 of 19 handed over the possession to appellant no. 1 Harish Chauhan vide a written document.
(vi). The appellants came to know regarding the eviction petition only after a letter addressed to Shri Ashok Goel was received from the Court and filed the objections which have been dismissed without application of mind.
(vii). The eviction order obtained by playing fraud upon the Court and concealing the material factum of sale, as stated above, is a nullity per se. There was thus no relationship of landlord and tenant visàvis the respondent herein and Shri Ashok Goel. The appellant no. 1 has independent title acquired through above mentioned sale transaction. He is thus the rightful owner in actual physical possession of the premises and the decree of eviction has been passed without jurisdiction and that the respondent has played fraud upon the Court by suppressing the material facts.
(vii). Ld. Counsel for the appellants referred to the statements of various witnesses and the documents tendered on record to substantiate his case. I would discuss them at the time of appreciating the evidence of the witnesses.
7. The following case law has been cited by the Ld. Counsel for the appellant:
(A) Lease and Licence distinguished:
(i). AIR 1988 SC 184 Khalil Ahmed Bashir Ahmed Vs. Tufelhussein Samasb hai Sarangpurwala in which the essential differences between the lease and licence have been explained.
(B) Decree without jurisdiction is a nullity and question of nullity can be raised at any stage:
(i). AIR 1996 SC 1819 Urban Improvement Trust Vs. Gokul Narain (Court passing decree/granting benefit not having jurisdiction to entertain claim Decree is nullity Question of nullity can be set up at any stage including execution).
(ii). AIR 2009 SC 1645 Chandrabhai K. Bhoir Vs. Krishna Arjun Bhoir (Order passed without jurisdiction is nullity it will be a coram nonjudice.) RCT No. : 4/16 Page 4 of 19
(iii). AIR 1954 SC 340 Kiran Singh Vs. Chaman Paswan (It is a fundamental principle that a decree passed by a court without jurisdiction is a nullity and its invalidity could be set up where ever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the court to pass any decree and such a defect cannot be cured even by consent of parties.)
(iv). MAU/SC/8464/2008 Mantoo Sarkar Vs. Oriental Insurance Co. Ltd. & Ors. (A distinction must be made between a jurisdiction with regard to subject matter of the suit and that of territorial and pecuniary jurisdiction.
Whereas in the case falling within the former category the judgment would be nullity, in the latter case it would not be).
(v). AIR 1970 SC 838Smt.Kaushalya DeviVS K.L. Bansal (Decree passed by the court in ejectment suit in terms of compromise, without satisfying itself if the grounds for eviction existedDecree is in contravention of Section 13 and a nullity and cannot be executed.) (C) Rules of Evidencewithholding the best evidence--drawing an adverse inference.
(i). AIR 1968 SC1413 Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif (A party in possession of best evidence which would throw light on the issue in controversy withholding it Court ought to draw an adverse inference against him notwithstanding that the onus of proof does not lie on himParty cannot rely on abstract doctrine of onus of proof.)
(ii) AIR 1959 Bombay 528LiladharRatanlal VyasvsHolkarmal Sohanlal (Since the Plaintiff has come up with a definite case that partnership was dissolved on the date mentioned by him, the burden is upon him to establish that fact. This is so not only by virtue of Section 109 of the Evidence Act but of the rule that the Plaintiff must establish every fact on which he relies and which is relevant in order to entitle him to the relief claimed, unless such fact is admitted by the defendants. It is not necessary for the Defendant to RCT No. : 4/16 Page 5 of 19 establish that the partnership was dissolved much earlier unless and until the Plaintiff discharged the burden which lay upon him by adducing prime facie evidence and evidence is accepted by the court.)
(iii). AIR 2009 SC 1499National Insurance Co. Ltd. VsRattani and Ors. (An admission made in the pleadings as is well known, is admissible in evidence proprio vigore.) (D) Scope and ambit of the doctrine of "Executing Court cannot go behind the decree"
(i). AIR 1972 SC 1371 Bhavan Vaja Vs. Solanki Hanuji Khodaji(It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to decree. In order to find out the meaning of the words employed in a decree the court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution court and if that court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it).
(ii). AIR1950Bombay 155M and S M RlyVsRupchand Jitaji(The principle that an executing court cannot challenge the validity of the decree holds good only between the parties to the decree. When a third party against whom an order is served moves the executing court to decide the validity of the decree the executing court has inherent jurisdiction to do it).
(E) Fraudessential ingredients and pleadings
(i). AIR 2010 SC 2132Shanti Budhiya Vesta PatelvsNirmala Jayprakash Towari (Facts necessary for establishing fraud not pleadedIt is a plaint and basic rule of pleadings that in order to make out a case of fraud or coercion there must be (a) an express allegation of coercion of fraud and (b) all the material facts in support of such allegations must be laid out in full and with a high decree of precision. Since the particulars in support of allegation of fraud RCT No. : 4/16 Page 6 of 19 or coercion have not been properly pleaded as required by law, the same must fail.)
(ii). AIR 2006 SC 1871Saheb KhanVSMohd.Yusufuddin(No particulars have been given by the Respondent of alleged collusion between other respondents and auction purchaser. A charge of fraud or material irregularity must be specifically made with sufficient particulars. Bald allegations would not do.
(iii). AIR 1994 SC 853=(1994) 1 SCC 1S.P. Chengalvaraya NaiduVS Jagannath(A litigant who approaches the court is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.) (F) Sale deed visàvis Agreement to Sell--Legal position
(i). III (2001) SLT 2 Lakha Ram Vs. Madho Ram -(If entire consideration money paid to the vendor sale deed does not necessarily require to be executed. In the absence of sale deed, agreement to sell executed by vendor would not be treated as nonexistent document).
(ii). 97 (2002) DLT 687 Dr. Reeta Sahaney Vs. University of Delhi (Legal position of the documents, viz Power of Attorney, WILL, Agreement of sale etc.)
(iii). 81 (1999) DLT 355Ajit Narain Vs. Aarti Singh - (Power of attorney, agreement to sell, WILL etc. are the routine documents executed when a sale of immovable property takes place in Delhi).
(G) Purpose of letting out
(i). 17 (1980) DLT 221 - Karam Chand Vs. Oma Devi -(Purpose for which premises let out material and not its subsequent user by tenant without landlord's consent)
8. Ld. Counsel for the respondent refuted the arguments of the appellants stating the same to be fictitious and the appeal being not maintainable. I would venture to RCT No. : 4/16 Page 7 of 19 discuss the points raised visàvis the testimony of witnesses at the time of appreciation of evidence.
9. Respondent has relied upon case law 1974 RLR 23 Smt. Vidyawanti vs. Tokan Dass to cite that an order or decree is binding upon a judgment debtor or anyone who claims through him. The word occupation in section 25 means unlawful possession and the word title does not mean ownership alone but also any other right or interest.
10. The appellants have examined six witnesses.
(i). OW1 is the official from MCD who proved the record regarding mutation of property in the name of Ram Niwas and Harish Chauhan vide letter dated 28.05.1989 MarkX.
(ii). OW2 is an official from Delhi Vidyut Board who proved the record with respect to meter no.8611251 in the name of M/s. Delhi Wires & General Mills. He also proved the installation of separate meter vide Ex.OW2/3 and Ex.OW2/4 in the name of the appellant no. 1.
(iii). OW3 is the appellant no. 1 Harish Chauhan himself. He tendered various documents viz. Ex.OW3/1 to Ex.OW3/3 are the notice of production issued by his counsel to the decree holder; Sale deed, agreement to sell receipts in favour of his wife with respect to the demised premises as Ex.OW3/6 to Ex.OW3/8; receipt of handing over possession by JD Ashok Goel to him in the year 1996 as Ex.OW3/9 is; house tax receipts as Ex.OW3/10 to Ex.OW3/14.
(iv). OW4 Ram Niwas' evidence is contained in his affidavit Ex.OW4/A. He testified to the fact that the half portion of plot no.C9/3, Wazirpur Industrial Area, Delhi was sold by Smt. Prakashwati in his presence; JD Ashok Goel handed over the possession of the premises to the objector Harish Chauhan in the year 1996 in his presence; appellants no. 1's and his own name having been incorporated in MCD records for purpose of house tax etc.
(v). PW4A (also mentioned as PW4) is Ashok Goel who had tendered his affidavit in evidence as Ex.OW4/1. He deposed on the lines of his being a RCT No. : 4/16 Page 8 of 19 tenant of Smt. Prakashwati on monthly rent of Rs.4000/ in respect of the premises in question and the factum of paying Rs.2000/ p.m. to DH for consumption of electricity.
(vi). OW5 is the Assistant Ahlmad of the court of the District Judge who tendered the additional documents as Ex.OW5/1 to Ex.OW5/9.
(vii). OW6 is an official of DDA. He had tendered the file pertaining to the plot in question the documents previously exhibited as Ex.OW5/3 & Ex.OW5/4. In addition, he had tendered two more documents viz. the Partnership Deed and the letter of Smt. Prakashwati dt. 27.03.1992 as Ex.OW6/1 and Ex.OW6/2 respectively.
11. The respondent examined himself as DHW1and his deposition is contained in his affidavit Ex.DHW1/A. He tendered the agreement purporting to create tenancy as Ex.W1/1 and tendered oral evidence controverting the facts pressed into service by the appellants.
12. It is the settled position in law that a decree obtained by playing fraud upon the Court is a nullity in the eyes of law and the challenge to the same can be maintained even in collateral proceedings. Thus, the appellants were very competent in maintaining the objections pleading fraud. Whether the plea has been sustained on facts and within the four corners of law is a moot question which is required to be gone into in this appeal.
13. The aspect of scope and ambit of the doctrine that the executing court cannot travel beyond the scope of the decree as a general rule and the circumstances where it is so permitted is also well established in a catena of case law.
14. Another legal point is the question of appreciation of evidence. The legal position in this respect is crystal clear. The evidence ought to be appreciated as a whole and on the threshold of the doctrine of preponderance of probabilities. Different rules of evidence are tools in this regard and with their assistance the overall picture has to emerge as to what stands proved, what stands not proved and what stands unproved. At the cost of repetition, it is the overall cumulative effect of the evidence that has to be appreciated.
RCT No. : 4/16 Page 9 of 1915. Rent Act proceedings are not to be equated with a title suit. It deals with the concept of landlord and owner. However, the term owner is not to be interpreted in a strict sense as it is done in a title suit as the objectives are quite at variance in these different proceedings. The case law cited on this aspect has clearly balanced the position and I have proceeded on the guidance emanating from the case law cited.
16. Now coming to the appreciation of facts. The allotment of property bearing no. C9/3, Wazirpur Industrial Area, Delhi to M/s. Delhi Wire & General Mills is not controverted. The question for consideration is existence or nonexistence of the partnership status of M/s. Delhi Wire & General Mills on the date of allotment. The plea put forth by the appellants is that its status was that of a partnership firm with the appellant no. 1 namely Prakashwati being one of the two partners.
17. OW1 Sh. Asharfi Lal, Zonal Inspector, Special Assessment Unit, Minto Road, MCD who deposed on on 25.08.2000 and 02.03.2001, has tendered in his evidence two documents viz. MarkX letter dated 28.05.1998 vide which industrial plot C9/3, Wazirpur Indl. Area has been mutated and OW1/X1 is the certified copy of order dated 01.02.1999.
18. OW2 : Sh. D.R. Singh from Delhi Vidyut Board, District Office, Keshav Puram, Delhi tendered in his evidence the following documents:
i. Ex.OW 2/1 and Ex.OW2/2 are the original bills qua connection no.1217807 ii. Ex.OW 2/3 and Ex.OW2/4 are the original bills qua connection no.K 509/1204009/IPL.
iii. Ex.OW 2/5 is the letter dated 10.01.1984 issued by DVB
19. OW3 : Sh. Harish Chauhan, whose statement was recorded on 24.03.2014 and 11.11.2005) has tendered the following documents in his evidence i. Ex.OW 3/1 is the copy of notice u/o 12 Rule 8 CPC dated 25.07.2000.
ii.. Ex.OW3/2 AD Card addressed to Sh. J.K. Nayyar, Advocate iii. Ex.OW3/3 are the registered postal receipts, UPC receipt dated 25.07.2000.
iv. Ex.OW3/4 is the photocopy of letter dated 08.10.1968 issued by DDA in favour of DWGM .
v. Ex.OW 3/5 is the photocopy of Partnership Deed dated 01.05.1979 RCT No. : 4/16 Page 10 of 19 vi. Ex.OW 3/6 is the copy of GPA dated 04.05.1995 executed by Smt. Prakash Wati in favour of Smt. Usha Rani (W/o Sh. Harish Chauhan) vii. Ex.OW 3/7 is the Copy of deed of Sale Agreement dated 04.05.1995 executed by Smt. Prakash Wati in favour of Sh. Harish Chauhan (OW3) viii. Ex.OW 3/8 is the photocopy of receipt dated 04.05.1995 of Rs.3,25,000/ ix. Ex.OW 3/9 is the photocopy of other receipt regarding taking over the possession of the property on 20.01.1996 by Sh. Harish Chauhan x. Ex.OW3/10 to 3/24 are various documents xi. Ex.OW 3/25, office copy of notice dated 18.02.2014 under Order 12 Rule 8 CPC xii. Ex.OW 3/26, office copy notice under Order 12 Rule 3 CPC xiii. Ex.OW 3/27 & Ex.OW 3/28 are original postal receipts xiv. Ex.OW 3/29 is original unserved envelope xv. Ex.OW 3/30 Copy of letter no.F6A(70)67/LSB(1)/2733 (already Ex.OW 5/3) xvi. Ex.OW 3/31 Copy of letter no.F6A(70)67/LSB(1)/34023 dt 04.12.1992 (already Ex.OW 5/4) xvii. Ex.OW 3/32 Copy of letter no.F6A(70)67/LSB(1)/553 dt 04.12.1992 (already Ex.OW 5/5) xviii. Ex.OW 3/33 copy of questionnaire for factories in Delhi issued by Delhi (already Ex.OW 5/6) xix. Ex.OW 3/34 Copy of letter DWGM/Land sent by Delhi Wire and General Mills to DDA with respect to Plot No.C9/3, Wazirpur Indl. Area (already Ex. OW 5/7) xx. Ex.OW 3/35 copy of letter dated 10.10.1975 sent by Delhi Wire and General Mills to the Vice Chairman of DDA with respect to Plot No.C9/3, Wazirpur Indl. Area(Already Ex.OW 5/8) xxi. Ex. OW 3/36, copy of letter dated 12.03.1976 sent by Delhi Wire and General Mills to the Land Sales Officer, Vikas Bhawan DDA with respect to Plot No.C9/3, Wazirpur Indl. Area (Already Ex.OW 5/9.
RCT No. : 4/16 Page 11 of 1920. OW4 : Sh. Ram Niwas in his evidence recorded on 06.05.2005 has submitted one documents Ex.OW4/DH1 which is the certified copy of statement of DW1 Sh.Ram Niwas recorded on 10.07.2003 in suit for declaration, permanent injunction, possession titled Hans Raj Goel Vs. Ram Niwas & Bhim Sen. Inadvertently OW4 Sh. Ashok Goel recorded on 24.11.2006, and Ram Niwas is also mentioned as OW4, The Ld. Trial Court has taken notice of this fact and read it in correct manner.
21. OW5 : Sh. Gopal Chand, Ahlmad in his evidence recorded on 24.03.2014 has tendered following documents:
i. Ex.OW 5/1 (OSR), copy of Application U/o 41 Rule 27 CPC.
ii. Ex.OW 5/2 (OSR), copy of reply to above application iii. Ex. OW 5/3, copy of letter no. 6A (70) /67/LSB (1)/ 2733 dated 04.09.1992 iv. Ex. OW 5/4, copy of letter no. 6A (70) /67/LSB (1)/ 34023 dated 04.12.1992 v. Ex. OW 5/5, copy of letter no. 6A (70) /67/LSB (1)/ 553 dated 29.09.1994 vi. Ex. OW 5/6, copy of questionnaire for factories in Delhi issued by Delhi vii. Ex. OW 5/7, copy of letter DWGM/Land sent by Delhi Wire and General Mills to DDA with respect to Plot No.C9/3, Wazirpur Indl. Area.
viii. Ex. OW 5/8, copy of letter dated 10.10.1975 sent by Delhi Wire and General Mills to the Vice Chairman of DDA with respect to Plot No.C9/3, Wazirpur Indl. Area.
ix. Ex. OW 5/9, copy of letter dated 12.03.1976 sent by Delhi Wire and General Mills to the Land Sales Officer, Vikas Bhawan DDA with respect to Plot No.C9/3, Wazirpur Indl. Area.
22. OW6 : Sh. Kailash Chand Yadav, UDC, DDA, LSB Indl., Vikas Sadan, Delhi in his evidence recorded on 24.03.2014 had tendered the following documents in evidence:) RCT No. : 4/16 Page 12 of 19 i. Ex.OW 6/1 (Colly) (OSR), copy of partnership deed ii. Ex.OW 6/2, Letter dated 27.03.1992 sent by Smt. Prakashwati received in DDA office.
iii. Ex.OW 6/DH3 (OSR) Copy of Legal notice dated 28.12.1992 sent by Sh.
Hans Raj Goel through Sh. M.D. Goel, Advocate.
iv Ex.OW 6/DH4 (OSR) Copy of letter dated 23.10.1992 written to Sh. Hans Raj Goel
23. DHW1 : Sh. Hans Raj Goel whose testimony was recorded on 11.05.2007 has relied upon the following documents in his evidence:
i. Ex.DHW1/O1 - Sh. Ved Prakash Sharma, Asvocate as lawyer having given a notice through Sh. Ram Niwas to him as Ex.DHW1/01 ii. Ex.DHW1/O2 - Notice iii. Ex.DHW1/03 is the notice dated 15.10.1997 iv MarkY copy of the possession letter dated 08.10.1968 (the witness is unsure about the fact whether the original is in possession or not.) v. Ex.DHW1/04 to Ex.DHW1/06 are deposit slips vi Ex.DHW1/07 is the original allotment letter.
24. In the main petition PW1, Sh. Hans Raj Goel, has relied upon the agreement dated 27.05.1991 as Ex. PW 1/1.; the site plan of the property is Ex. PW 1/ 2.; Ex. PW 1/3 to Ex. PW 1/ 8 are the rent receipts visavis the amount deposited with State Bank of Patiala; the extract of bank account showing the receipt of rent of Rs. 20,000/ per month is Ex. PW 1/9 and Ex. PW 1/10.
25. Now let us explore what cumulative and overall effect the evidence, oral and documentary, which has been tendered on record has generated and appreciate the same to find out if the ld. Trial court has interpreted it in the correct perspective or not:
(i). The witness OW6, an official of DDA, called in evidence by the appellants tendered a partnership deed dt. 18.05.1979 sent by the appellant no. 2 vide letter dated 27.06.1991 and annexed documents as Ex.OW6/1 (Colly).
(ii). In the said letter dated 27.06.1991 the appellant no. 2 has forwarded to RCT No. : 4/16 Page 13 of 19 the Vice Chairman of DDA copies of various documents including a partnership deed dated 18.05.1979. The partnership deed discloses that Hans Raj Goel, Prakashwati and Shiv Raj were carrying out the business in partnership under the name and style of M/s. Delhi Wires & General Mills at t he property in question. It also refers to a previous partnership deed of date 01.01.1975, purported to have been dissolved consequent upon the retirement of Shiv Raj resulting into the execution of a fresh partnership deed dt. 18.05.1979.
(iii). These documents show that there is no subsisting partnership deed between the appellant no. 2 and the respondent in the name and style of M/s. Delhi Wires & General Mills on the date of allotment of property in question i.e. on 08.10.1968 vide Ex. DHW1/07. The partnership between these parties in the said name and style M/s. Delhi Wires & General Mills has its genesis on 01.01.1975 for the maiden time.
(iv). Notice under Order 12 Rule 8 vide Ex.OW3/25 and Ex.OW3/26 has also been tendered in evidence by the appellants calling upon the respondent to produce various documents. The notices remained undelivered as per PW3/9 for the premises found to be locked. The appellants requisitioned production of seven documents from the respondent. Deeming that the notice was served, its legal effect has to be seen as well as the consequences of non production of documents sought to be produced.
(v) The documents which are sought to be produced are of the period much after the date of allotment of the property in question, except a document tendered as Ex.OW5/3, which is a photocopy.
(vi). The trial court has found the document Ex.OS5/3 on the face of it to be of a doubtful nature for the reason that the same has only been signed by the respondent and the name of appellant Prakashwati seemingly incorporated later on. The trial court has further observed that appellants could have got proved the said document being the official record from the DDA. The trial court observed that OW6, the official from DDA, who had brought the RCT No. : 4/16 Page 14 of 19 original file failed to file the said document and therefore it did not rely upon the same.
(vii). The trial court observed that the remaining documents sought to be produced through notice Ex.OW3/25 were the letters issued after the allotment of the land to the firm, therefore of no consequence as far as the allotment of property is concerned as propounded by the appellants.
(viii). The trial court has also observed that the appellants, more particularly the appellant no. 2, Prakashwati failed to produce even a single document with respect to the firm's account, it's sales tax returns, income tax returns etc. where the property in question could be shown to be that of the partnership firm as propounded by the appellants.
26. It is the settled position of law that the burden of proof is fixed and constant and the onus of proof keeps on shifting in the course of a trial. The fact of existence of the partnership between the appellant no. 2 and the respondent is a material fact constituting the foundation of the case of the appellants and therefore the burden of proof and the initial onus was on them to establish the same by credible evidence. However, their evidence unsettles their own stand and thus there is no question of shifting of onus in the course of trial.
27. Question of ownership, title or interest is compulsorily to be proved by documents in the nature of pleadings set up by the appellants. Thus, the burden of proof was upon the appellants solely to establish that Prakashwati was the partner and allotment of the property in question was allotted and that the allotment was to a partnership firm. The appellants failed on this front. There is also no other evidence to establish that the property in question had been stockandbarrel brought into the books of the partnership firm formed vide partnership dated 01.01.1976 or subsequently on 10.05.1979.
28. The law of drawing adverse inference is very clear that an adverse inference cannot be drawn in vacuum. The party seeking such an act on the part of court has to give at least some evidence that the fact which it is propounding has an existence and that the best evidence is in the custody and control of the adversary. Only then RCT No. : 4/16 Page 15 of 19 the ground for drawing an adverse inference is created. In the case in hand the best evidence was available with an independent government authority as it was the agency which had allotted the plot in question. The evidence produced through this agency unsettled the factual ground put forth by the appellants. Thus there is no room for drawing any adverse inference against the respondent.
29. The trial court has further observed as under:
"16. The objectors also relied upon the documents Ex.OW5/3, Ex.OW5/4, Ex.OW5/5, Ex.OW5/7 to Ex.OW5/9 to support his argument regarding decree holder being the partner of M/s. Delhi Wires and General Mills along with Smt. Prakashwati. The said documents requires to be considered by considering the testimony of OW6. The document Ex.OW5/3 dt. 04.09.92 and document Ex.OW5/4 dt. 04.02.1992 were produced in original by OW6. Apart from that he also produced documents Ex.OW6/1 (Colly) dt. 27.06.1991, document Ex.OW6/2 dt. 27.03.1992. He was also confroted with the documents by the DH i.e. Ex.OW6/DH3 which is the legal notice issued by DH to DD 24.12.1992 and document Ex.OW6/DH4 dt. 23.10.92 addressed to DH. OW6 in his cross examination specifically stated that as per the official record the document Ex.OW6/1 dt. 27.06.1991 is the first communication written by Smt. Prakashwati to the DDA. He further admitted that the DDA never wrote any communication with respect to the property in question to Smt. Prakashwati prior to 27.06.1991. Thus the testimony of OW6 which is based on the official record proves that for the first time the name of the Prakashwati as a partner was inserted only consequent to her communication Ex.OW6/1. Nothing prevented the objector Prakashwati to have raised her claim in the year 1966 r subsequently of she being the partner of M/s Delhi Wire and General Mills. No steps were taken by her starting from the year w.e.f. 1968 to the year 1991 with the DDA from incorporating her name in their records for the reasons best known to her."RCT No. : 4/16 Page 16 of 19
30. This finding of the ld. Trial court clinches the issue fair and square. I endorse the same.
31. The ld. Trial court has assessed the evidence positively and negatively to make sure that the correct factual position emerges. The following observation of the trial court shows that the adverse inference is liable to be drawn against the appellants:
"17. Significantly the letter Ex.OW6/1 if the objector Prakashwati also verifies the fact that photocopy of partnership deed and dissolution deed were submitted by her. Thus admittedly the objector Prakashwati is in possession of material documents regarding the partnership but the same were never produced for the reasons best known to her. The dissolution deed of the partnership is the material document which could have thrown some light over the properties of the firm. But the same was never produced despite opportunities and the adverse inference is raised against the objector. The reliance placed upon the letters Ex.OW5/3, Ex.OW5/4 and Ex.OW5/5 of the DDA is also not material as the said letters were issued subsequent to the intimation given by objector vide Ex.OW6/1. He further stated that all the letters received from DH even after 01.07.1991 were written as he being the proprietor of the firm. Thus the reliance placed upon the documents Ex.OW5/3 to Ex.OW5/5 by the objector is misplaced and does not support their case of being the partner right from the beginning in M/s Delhi Wire and General Mills."
32. In the same stride, the ld. Trial court has aptly rejected the contention of the appellants that the license deed executed between DH and JD as Ex.PW1/1 dated 27.05.1991 was for the license for use of electricity meter installed in the name of M/s Delhi Wire & General Mills. A meaningful reading of the said document Ex. PW1/1 by no stretch of imagination can be said to be an agreement for payment of electricity charges. The trial court had observed that the argument of Ex.PW1/1 being the license deed was discarded by his Ld. Predecessor in the judgment dated RCT No. : 4/16 Page 17 of 19 20.07.1998 and that the said document was construed to be lease agreement for the premises given on rent to Ashok Goel. I also concur with the finding of the ld. Trial court. Nomenclature of a document is not decisive of its nature and what it purports to be. It is the body or the sum and substance of its matter, on a complete reading, is what discloses its character. The law on this aspect is well settled in a catena of case law. The ld. Trial court found itself in complete disagreement with the appellants on a reading of the document Ex. PW1/1 and the appreciation of the testimony of OW4, Ashok Goel. It found glaring evidence of the relationship of landlord and tenant between the appellant and the said Shri Ashok Goel, thus the own witness of the appellants put the last nail in the coffin. I am in full agreement with the reasoning put forth by the Ld. Trial Court in the impugned order. Thus the allegations of fraud also fade into insignificance.
33. Taking the discussion further and exploring that the ld. Trial court observewd the appellant no. 2 playing truant by not entering into the witness box. She was the one of the most material witness. She had claimed to be the partner of M/s Delhi Wire & General Mills since its inception but for the reasons best known to her, she never entered into the witness box. This went against her in the trial court and goes against her in this appeal too.
34. As far as the reliance on house tax record or mutation in the records of Municipal Corporation of Delhi is concerned, the same is of no consequence. A mutation does not create any right, it only creates a liability--the obligation to pay the property and other taxes. An entry or mutation in the records of MCD does not confer any title or ownership. So, I am in full conformity with the finding of the ld. Trial Court on this count.
35. The ld. Trial court also rightly observed that in the cross examination of respondent nothing material could be elicited to unsettle his grounds or in any way to prove the case of the appellants.
36. In the light of the evidence assimilated on record and in an overall perspective the objection put forth by the appellant fall like a house of cards. There is no infirmity in the findings of ld. Trial court as they are based on sound reasoning and RCT No. : 4/16 Page 18 of 19 appreciation of the facts and evidence in the correct perspective. Hence the appeal fails and is accordingly dismissed. Trial Court Record be sent back alongwith an attested copy of the judgment. Appeal file be consigned to Record Room.
(Announced in the open court today i.e. on 07122018) Digitally signed by RAJNISH RAJNISH BHATNAGAR BHATNAGAR Date: 2018.12.10 15:55:24 +0530 (RAJNISH BHATNAGAR) District & Sessions Judge (North/West) Rohini Courts : Delhi 07122018 RCT No. : 4/16 Page 19 of 19