Delhi High Court
Kumar Sales Corporation, New Delhi vs Shri Ajit Singh & Ors. on 9 September, 1999
Equivalent citations: 2000IAD(DELHI)253, 2000 A I H C 1876, (2000) 3 CIVILCOURTC 429
ORDER Dr. M.K. Sharma, J.
1. The present second appeal is directed against the judgment and decree dated 21.10.1997 affirming the judgment and decree dated 26.12.1983 passed by the trial court. The trial court by the aforesaid judgment and decree dismissed the suit filed by the plaintiff/appellant with costs and also directed for proceeding against the plaintiff under Section 340 of the Criminal Procedure Code and also for holding an enquiry. The appellant brought the aforesaid suit seeking for a decree for permanent injunction against the respondents alleging that the plaintiff is a tenant and in possession of shop No. 8977, Desh Bandhu Gupta Road, Pahar Ganj, ew Delhi under an oral agreement dated 27.10.1978 which was reduced into writing on 28.10.1978 executed between the plaintiff and respondent No.1 for self and also on behalf of the remaining respondents. It is alleged in the plaint that the appellant/plaintiff was in possession of the suit property for about 6 years even prior to the agreement under consent of the father f respondent No.1. It is stated that under the aforesaid agreement executed between the parties the terms were agreed for making payment of Rs. 10,000/- for creating tenancy and Rs. 200/- per month as rent. It is also alleged that later on the rent was agreed upon @ Rs. 250/- per month and that on 25.10.1978 Rs. 10,000/- were paid in cash after withdrawing the same from bank to respondent No.1. A sum of Rs. 1,000/- was also paid on 27.10.1978 vide cheque as rent for 4 months w.e.f. 27.10.1978. It is alleged that inspite of the aforesaid position the defendant No.1 with Bailiff on 21.1.1979 came with warrant of possession for taking the possession of the suit property and accordingly, the aforesaid suit was instituted.
2. The defendants contested the suit contending inter alia that shop No. 8977, Desh Bandhu Gupta Road, Pahar Ganj, New Delhi is not in possession of the plaintiff and there is no order with respect to that shop and that the said shop is under the tenancy of M/s. Om Prakash Fateh Chand Ltd. for over 20 years. It is also alleged that shop between shop No. 8977 and 8978 was let out by respondent to Shri Dhanwant Singh, who sub-let the said shop to M/s. Eagle Agency, who was agent of M/s. Kumar Sales Corporation, the appellant under the terms of agreement of June 1972. It is contended that no possession was given to the plaintiff of the aforesaid shop and as the said shop was sub-let by Dhanwant Singh the suit for eviction was filed by the respondent against Dhanwant Singh, M/s. Eagle Agency and Shri Surinder Nath, in which eviction order was passed by the Additional Rent Controller on 8.4.1975 as against which an appeal was preferred which was also dismissed on 30.9.1978. Second appeal was also dismissed on 16.10.1978.
3. On the pleadings of the parties the trial court framed six issues and thereafter recorded evidence adduced by the parties. The trial court, after considering the evidence on record, both oral and documentary, decided issues No.1 to 5 against the plaintiff/appellant and consequently dismissed the suit of the appellant with a direction that there are sufficient grounds for proceeding against the plaintiff under Section 340 Cr.P.C. as offence in respect to forgery of documents and using the same in judicial proceedings has been committed.
4. Being aggrieved by the aforesaid judgment/decree an appeal was pre-
ferred before the lower appellate court, who after hearing the parties dismissed the appeal with costs.
5. I have heard Mr. G.L. Rawal for the appellant Mr. Ishwar Sahai on behalf of the respondent. Mr. Rawal submitted that in the present appeal questions of law arise as to whether the findings, in relations to identity of the suit property, of the courts below are not erroneous inasmuch as there was no dispute between the parties in respect of the identity of the suit property and therefore, the findings given by the courts below in respect of the identity of the property was uncalled for. He further submitted that although there was no registration of the agreements entered into between the parties still the contents of the said document could and should have been read by both the courts below and having not done so the courts below acted illegally and their findings are perverse. It was also submitted that the respondent/defendant admittedly maintained a regular rent account in respect of the properties let out by it including that of the suit property and therefore, the said document was necessary and vital for determining the controversy and issues between he parties. It was submitted that the defendants having withheld the same the courts below should have drawn an adverse inference against the defendants. In support of his contention the learned counsel appearing for the appellant relied upon the provisions of Section 107 of the Transfer of Property Act as also the decisions in Hira Lal and Others Vs. Badku lal and Others, and Kundan Lal Ralla ram Vs. Custodian, Evacuee Property, Bombay, AIR 1961 SC 1316.
6. Mr. Ishwar Sahai, on the other hand submitted that the findings recorded by both the courts below are pure and simple findings of fact and the said findings have been recorded by both the courts on appreciation of both oral and documentary evidence on record. He submitted that in that view of the matter there is no question of upsetting the aforesaid judgment and decree. He also submitted that there are apparent contradictions in the averments made in the plaint as against the evidence of the plaintiff himself. In support of his contention the learned counsel relied upon the decision of the Supreme Court in Shri Raja Durga Singh of Solon Vs. Tholu and Others, AIR 1963 SC 61.
7. I have considered the contentions of the learned counsel appearing for the parties in the light of the evidence adduced in the present case. Both the courts below on appreciation of the oral and documentary evidence came to a definite conclusion that the plaintiff/appellant is in occupation of a shop in between shop No. 8977 and 8978, Desh Bandhu Gupta Road, Pahar Ganj, New Delhi. Both the courts have also recorded that in respect of shop No. 8977 another tenant namely- M/s. Om Prakash Fateh Chand is in occupation which is also an admitted position in the replication filed by the plaintiff. Both the courts below have also returned a finding of fact that the report of the handwriting expert Shri M.K. Mehta is proper and valid and that the report of the handwriting expert Shri Veer Kumar Sakhuja, PW. 5 is not reliable. In the light of the Statement of the handwriting expert namely shri M.K. Mehta, DW. 3 and the other evidence on record both the courts below have also recorded that the rent documents and rent receipts are forged documents. The aforesaid findings have been recorded after appreciation and critical analysis of the evidence on record. In my considered opinion the aforesaid findings are findings of fact and no question of law arises therefrom. Shop No. 8977 is found to be under occupation of a tenant, M/s. Om Prakash Fateh Chand and therefore, the appellant, could not be a tenant in respect of the said shop. The documents filed by the appel-
lant including the alleged lease agreement and rent receipt are all relatable to the said shop, although the appellant was not a tenant in respect of the said shop and therefore, it is crystal clear that there has been manipulation in the said document and they were found to be forged. The said conclusion is also supported and fully corroborated by the report of the handwriting expert.
8. The lower appellate Court, on consideration of both the reports of the handwriting experts gave its reasons for placing reliance on the report of Shri M.K. Mehta and also for rejecting the report of Shri V.K. Sakhuja. In this connection reference may also be made to the pleas raised in the plaint and the evidence of the plaintiff. A closer look at the same would indicate that the evidence of the plaintiff is conflicting to that of the averments made in the plaint, for as per plaint a sum of Rs. 10,000/- was the consideration for creating tenancy whereas as per the statement of PW. 1 the same was a sum for the litigation expenses. Even in respect of the rent note the courts below found unusual features therein like giving a note at the bottom and delivering the original to the landlord. Besides all the aforesaid documents relating to shop No. 8977 which is a tenanted shop occupied by M/s. Om Prakash Fateh Chand. In this connection reference may also be made to the decision of this court in Lalit Popli Vs. Union of India and Others: .
In the said decision in was held by this court that Mr. Sakhuja is not a person who is competent to speak about the handwriting or the finger prints and that his evidence is not an evidence at all. In the said judgment also a report given by Mr. V.K. Sakhuja was also in issue and considering various aspects this court held that Mr. Sakhuja is not a person who is compe-
tent to speak about the handwriting or the finger prints. While coming to the aforesaid conclusions this court also considered various judgments wherein competence of Shri Veer Kumar Sakhuja was questioned in the strongest terms. In my considered, opinion the report of Mr. Sakhuja given in the present case as a handwriting expert and as PW. 5 was rightly rejected by both the courts below.
9. In Shri Raja Durga Singh case (supra) it was held by the Supreme Court that in an ejectment suit a finding by the court on the question whether the defendants were the tenants of the plaintiff, arrived on consideration of all the evidence oral and documentary, adduced by the parties is a finding of fact and cannot be set aside in second appeal by the High Court. It was also held in the said decision that though for determining the question documentary evidence falls to be considered, the finding on the question is no less a finding of fact than may have been the case if the evidence to be considered is merely oral. In my considered opinion the ratio of the aforesaid decision is squarely applicable to the facts of the present case. Both the courts below have returned a finding of fact as to whether the defendants were the tenants of the plaintiff in respect of shop No. 8977. On consideration of the oral and documentary evidence adduced by the parties and also in respect of the issue as to whether any agreement for letting out the property in favour of the plaintiff by the defendants have been executed or not. The said findings recorded, in my considered opinion, are findings of fact and the same cannot be interfered with.
10. The contention of the learned counsel for the appellant that the documents like the agreement were not considered by the courts below is also based on misreading of the findings of the courts below. Both the courts have recorded a finding that no such document was ever executed between the parties and the documents relied upon are forged documents and therefore, cannot be looked into.
11. So far the contention of the counsel for the appellant that adverse inference should be drawn against the defendant for withholding best evidence, in my considered opinion the onus of proving the case was on the plaintiff. In my considered opinion the plaintiff has failed to discharge the said onus and in fact the defendants have produced cogent materials to prove and establish that the suit is based on forged documents.
12. In view of the foregoing discussion, I find no error in the judgment and order passed by the courts below and accordingly, the judgment and decree passed by the trial court stands affirmed. The appeal stands dismissed with costs.