Delhi District Court
Smt. Usha vs Contd on 9 August, 2007
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IN THE COURT OF SH. RAJ KUMAR CHAUHAN :
ADDITIONAL DISTRICT JUDGE : DELHI
Date of Institution : 18.11.2006.
Date on which the
Order has been
Reserved : 6.8.2007.
Date of Judgment : 9.8.2007.
In the matter of: -
RCA No. 25/2006.
Smt. Usha
D/o Late Sh. B.R. Madan,
W/o Sh. K.L. Hans,
R/o 149, Dr. Mukharjee Nagar (West),
Delhi-9. ... Appellant.
Vs.
Contd... ... ...
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1.Sh. Raj Singh Rana
S/o Sh. Chandgi Ram
R/o Village Pitam Pura, Delhi.
2.Sh. Ashok
S/o Sh. Mukhtiar Singh
R/o Village Khera Kalan,
Delhi. ... Respondents.
- : ORDER : -
1.In this regular civil appeal, the appellant has challenged the judgment dated 13.10.2006 passed by the Ld. Civil Judge, Delhi in suit bearing no. 57/2006 wherein the suit of the plaintiff was dismissed.
2.The brief facts of the matter before the Ld. Civil Judge, Delhi as alleged in the plaint are that the plaintiff has Contd... ... ...
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purchased the land measuring 1 bigha situated in 228 min in Village Alipur, Delhi from Sh. Satish Kumar, Sh. Narender Kumar, Sh. Puran Chand, Sh. Pradeep Kumar and Smt. Jamuna Devi vide sale deed dated 11.5.1989 duly registered with the Registrar on 11.5.1989; the suit property was allotted in the name of the plaintiff by the concerned Consolidation Officer and the plaintiff has been in actual physical possession of the suit property from the date of its purchase till date; a lal dora/extended abadi certificate was also issued in the name of the plaintiff on 3.2.1993 by the Consolidation Officer; in the year 2004, the plaintiff was informed that the defendant no. 1 was claiming himself to be the owner of the suit property on the basis of a sale deed dated 16.8.2003 in his favour purported to have been Contd... ... ...
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executed by one Sh. Ashok son of Sh. Mukhtiar Singh of village Khera Kalan, Delhi i.e. the defendant no. 2 as general power of attorney holder of the plaintiff; the plaintiff made enquiries from the Sub Registrar Office and came to know that the defendant no. 2 has got a general power of attorney dated 16.8.2003 purported to have been executed by the plaintiff in his favour and, thereafter, got the same registered in the Office of the Sub Registrar on the same date and allegedly, acting on the basis of the said general power of attorney, the defendant no. 2 forged and fabricated the document by getting the sale deed in favour of the defendant no. 1 and also got the same registered on 1.12.2003 purported to have sold the suit property for a sum of Rs. 20,000/- only.
Contd... ... ...
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3.It is further alleged that the plaintiff has never executed any general power of attorney in favour of the defendant no. 2 and the same has been forged and fabricated by the defendants; the said general power of attorney does not bear the thumb impressions and the signatures of the plaintiff and the photograph affixed therein also does not belonging to the plaintiff; the plaintiff never appeared before the Sub Registrar concerned for the execution of the documents. It is further alleged that the defendant no. 1 on the basis of alleged sale deed, mutated the property in his name in place of the plaintiff as purchaser of the said land; the plaintiff was never given any notice before the said mutation in the name of the defendant no. 1, hence, Contd... ... ...
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the mutation order dated 30.8.2003 is illegal, ultra vires and void and is liable to be set aside; the defendant no. 1 on the basis of forged and fabricated document, tried to take possession forcibly on 16.12.2004 of the suit property but did not succeed;
the plaintiff made a complaint to the DCP, North-West, Ashok Vihar, Delhi against the alleged act of the defendant no. 1 and also about the forging and fabricating of the documents against the defendant no. 1 but the police did not taken any action, hence, the present suit is instituted with a prayer to cancel the execution and registration of the general power of attorney dated 1.8.2001 alongwith sale deed dated 12.8.2003; to declare the mutation order dated 30.8.2003 as null and void; further the defendants be Contd... ... ...
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restrained from interfering in the peaceful possession of the plaintiff in the suit property and to order the Registrar, Pitam Pura, Delhi to cancel the said forged and fabricated documents.
4.The defendants have been served by way of publication in the newspaper "Statesman" dated 20.4.2005 but they failed to appear and, accordingly, proceeded ex-
parte on 23.5.2005.
5.The plaintiff has led ex-parte evidence for proving its case. The Ld. Trial Court after considering the evidence of the plaintiff, came to the conclusion that the plaintiff has failed to prove its case and was not entitled to the prayers made in the plaint and, Contd... ... ...
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accordingly, the suit of the plaintiff was dismissed.
6.The impugned judgment was challenged in the present appeal on the grounds that the Ld. Trial Court has wrongly held that general power of attorney dated 1.8.2001 and dated 12.8.2003 were not found in existence and as such the plaintiff has failed to prove his case for cancellation of these documents; that the Ld. Trial Court has failed to appreciate the evidence led by the plaintiff wherein it was proved that the defendant no. 1 got the mutation entry done on the basis of the forged and fabricated sale deed dated 12.8.2003 allegedly executed by the defendant no. 2 as attorney of the plaintiff in favour of the defendant no. 1; that the Ld. Trial Court has miserably failed to Contd... ... ...
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appreciate that the plaintiff has failed to prove that the mutation order was passed on the basis of above said two documents; that the Ld. Trial Court has failed to appreciate the evidence wherein the plaintiff has proved that the witness from the Office of the Sub Registrar stated that the general power of attorney dated 1.8.2001 and the sale deed dated 12.8.2003 did not exist in the records of the Office of the Sub Registrar; that the observation of the Ld. Trial Court to the effect that the suit land stands mutated in favour of the defendant no. 1 and as such the defendant no. 1 was owner of the suit property is contrary to the facts of the case; that the mutation entries are not proof of document of title and the ownership cannot be proved on the basis of mutation entries and that such entries Contd... ... ...
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cannot create any title or interest in the subject matter of the mutation. The reliance has been placed on 1997 (1) RCR (Civil) 656 SC and AIR 1994 SC 1653; that the Ld. Trial Court has failed to appreciate that the fact that sanctioning of the mutation in favour of the defendant no. 1 without giving any notice to the plaintiff was absolutely illegal, ultra vires and, therefore, liable to be declared as such.
7.It is further stated that the plaintiff is now in possession of the mutation proceedings i.e. Form O-4 which clearly show that the mutation order dated 30.8.2003 was passed by the Tehsildar concerned on the basis of the photocopy of the documents which were filed by the defendant no. 1 while applying for mutation of the Contd... ... ...
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suit land in his favour and originals of which were neither produced nor even came into existence; that the said documents were not in the knowledge of the appellant at the time of leading evidence and could not be filed in spite of due diligence and as such she moved an application u/o 41 r 27 CPC for allowing the plaintiff to lead additional evidence in that regard. In the end it is argued that the judgment and the decree has been passed on the basis of surmises and the same is not sustainable in the eyes of law. It is, therefore, prayed that the judgment be set aside and the suit of the plaintiff be decreed.
8.The respondents were sent summons of the appeal. The respondent no. 2 was served but the respondent no. 1 Contd... ... ...
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was not served as address was not traceable, hence, the respondent no. 1 was served by way of publication in the newspaper "National Herald", but none appeared on behalf of the respondents.
9.I have heard the learned counsel for appellant. The learned counsel for appellant argued that the appellant be given opportunity to prove the documents filed by the defendant no. 1 before the Registrar on the basis on which he fraudulently obtained the mutation order with regard to suit property. It is further argued that the appellant has succeeded in obtaining the certified copies of the application for mutation, photocopy of sale deed dated 12.8.2003, copy of the mutation wherein the name of the plaintiff has been struck off Contd... ... ...
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from the revenue records and other relevant copies of the record relied by the Tehsildar for carrying out the mutation alongwith order of the mutation qua suit property. In the application u/o 41 r 27 CPC, it was stated that the appellant made enquiries and it was found that the particulars of the documents as well as photocopy of the documents on the basis of which the mutation in question was sanctioned are placed in another file of the Tehsildar Consolidation which consists of Form O-4 etc.; the said enquiries were made on the ground that the plaintiff has failed to place on record the documents on the basis of which mutation was sanctioned in favour of the respondent no. 1 by the Tehsildar; the existence of these documents were not in the knowledge of the plaintiff who is housewife and the Contd... ... ...
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same were in the records of Tehsildar Consolidation and the same has been received now, therefore, it was not in power of the appellant to place on record those documents at the time of leading evidence before the Ld. Trial Court despite due diligence on the part of the plaintiff. It is, therefore, stated that if the appellant is allowed to file Form O-4 and other documents on the basis of which the alleged mutation order was passed by the Tehsildar in favour of the respondent no. 1, the plaintiff/appellant would be entitled to the relief claimed in the suit. The learned counsel for appellant, therefore, argues that either the Appellate Court may take this evidence on record or may remand back the matter to the Ld. Trial Court for allowing the plaintiff to prove these documents because the Ld. Trial Court Contd... ... ...
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has dismissed the suit on the ground that the plaintiff/appellant has failed to prove the existence of these documents which are now sought to be placed on record u/o 41 r 27 CPC.
10.I have considered the submissions made at bar and have gone through the impugned judgment as well as the documents sought to be placed on record. In para no. 7 of the impugned judgment, it was observed by the Ld. Trial Court as under: -
"7.1 Evidence has come on record in the form of testimony of PW2 and PW4 that no such general power of attorney or sale deed was ever registered with the Sub Registrar Office, Pitam Pura.
Contd... ... ...
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7.2 When there is no such general power of attorney or sale deed in existence in the official record, the question of their cancellation does not arise at all. Hence, prayer clause no. (a) is dismissed."
11.The prayer no. (ii) with regard to the declaration of the mutation order dated 30.8.2003 as null and void was also dismissed on the ground that the testimony of PW1, PW2 and PW3 has not made clear as to on the basis of what documents the said mutation order was passed nor the plaintiff had asked any specific question from the PW3 i.e. the Halka Patwari, Village Alipur, Tehsil Narela as to what document has been considered for the purpose of mutating the property in favour of defendant no. 1 favour. It was, therefore, held that the plaintiff has failed to prove that the said mutations vide Contd... ... ...
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Ex PW2/1 was made only on the basis of the so called forged and fabricated general power of attorney and the sale deed (though the existence of general power of attorney and the sale deed has not been proved). It was, therefore, held that in the absence of any such evidence on this point, the prayer clause (b) is also dismissed. The prayer clause (c) was also dismissed by the Ld. Trial Court on the ground that "The plaintiff has failed to examine PW4, the witness from the Sub Registrar Office to the effect as to whether any other sale deed other than the one in dispute (though the same itself not placed nor proved) was ever executed in favour of the defendant no. 1 or not. If the PW4 would have been examined on this point and the answer were in negative, the situation Contd... ... ...
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could have been different. Because in that case, the stand taken by the plaintiff were to be proved but by not asking a specific question from the PW3 and PW4 that as to how and on the basis of what documents, the suit property was mutated in defendant's no. 1 favour, the relief asked by the plaintiff to restrain the defendant from interfering in the peaceful possession of the plaintiff cannot be allowed because as on date by virtue of Ex PW2/1, the defendant no. 1 is the owner of the suit property."
12.Let us examine the evidence of the PW3 and PW4 to find out whether it was failure of the plaintiff to put specific questions from these witnesses which proved Contd... ... ...
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fatal for him resulting into dismissal of the suit. The PW3 Sh. Anil Malik S/o Sh. Mahender Singh Malik, Halka Patwari, Village Alipur, Tehsil Narela, Delhi has deposed as under: -
"We have mutated the property on the basis of sale deed. On the basis of record, the property in question was mutated on 30.8.2003 in the name of Sh. Raj Singh Rana (which has already been exhibited as Ex PW2/1 dated 20.9.2005). I was not the Halka Patwari in this village on 30.8.2003. I have no personal knowledge about the sale deed dated 1.12.2003. It is correct that lal dora certificate was issued from the Office of SDM from original file in the name of Smt. Usha which is already exhibit Ex PW1/3 dated 20.9.2005. I was appointed as Halka Patwari in the month of October 2003."
13.The PW4 Sh. Jai Prakash S/o Late Sh. Shiv Dutt, Bailif, Sub Registrar Office, Pitam Pura, Delhi has Contd... ... ...
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deposed that: -
"I have been working in the Sub Registrar Office, Pitam Pura for the last two years and today I have brought the record from Sub Registrar Office, Pitam Pura. Earlier the registration of the properties situated in Alipur used to take place in the Kashmere Gate Office but since the year 1996 the registration has been taking place in Pitam Pura Office. I was called to get the records of the general power of attorney registered dated 1.8.2003 but it does not exist in my records. It is mandatory to get any kind of sale deed or general power of attorney which is bought in the Alipur area to be registered in the Pitam Pura Sub Registrar Office where I work. The sale deed dated 12.8.2003 also does not exist in my records. As per the rules Alipur registration and the SDM Narela/Patwari, their office bearers cannot add or remove any name without getting the sale deed or the general power of attorney registered with the Pitam Pura Sub Registrar Office."
14.The above deposition of this witness appears to be Contd... ... ...
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false because the documents i.e. sale deed dated 12.8.2003, general power of attorney dated 1.8.2003 are stated by him to be not in existence in their records.
The appellant has now placed on record the certified copies received from the Office of the Sub Registrar, Pitam Pura of all these documents which includes application for mutation dated 13.8.2003 by the defendant no. 1. He has accompanied this application with the photocopy of the sale deed dated 12.8.2003 allegedly executed by the defendant no. 2 on behalf of the plaintiff in favour of the defendant no. 1. The sale deed is registered before the Sub Registrar, Pitam Pura on 12.8.2003 itself.
15.Now, the question arise as to whether after the failure Contd... ... ...
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of the plaintiff to put specific questions to these witnesses with regard to the existence of the documents on the basis of which sale deed was registered in favour of the defendant no. 1 and also passing of mutation order by the Tehsildar in favour of the defendant no. 1, whether the Court was required to ask the questions to these witnesses to clarify this ambiguous situation? In this regard, Section 165 of the Indian Evidence Act, 1872, r/w/o 18 r 17 CPC makes its clear that the Trial Judge has power to put questions to the witnesses so produced before him and the Court may recall witnesses and put questions as the Court thinks fit. The relevant provisions of the Indian Evidence Act and the CPC are reproduced as under: -
Contd... ... ...
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"Section 165 of Indian Evidence Act. Judge's power to put questions or order production. - The Judge may, in order to discover or to obtain proper proof of relevant fact, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:
Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorise any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149;
nor shall he dispense with primary evidence of any document, except in the cases hereinabove excepted."
Contd... ... ...
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"Order 18 r 17 CPC. Court may recall and examine witness. - The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit."
16.Section 165 of the Indian Evidence Act gives power to the Judge to ask any question he pleases, in any form, at any time, of any witness, or of the parties, in order to discover or to obtain proper proof of relevant fact or about any fact relevant or relief or may require production of any document. Thus, when the Ld. Trial Court was of the opinion that the plaintiff has not asked any specific question from the PW3 and PW4 with regard to the existence/non-existence of the Contd... ... ...
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general power of attorney dated 1.8.2003 and the sale deed dated 12.8.2003 and mutation order dated 30.8.2003, the Ld. Trial Court should have exercised its power u/s 165 of the Indian Evidence Act or may have recalled any of the witness u/o 18 r 17 CPC. In view of these facts and circumstances, the appellant is entitled to an opportunity to prove the documents which have been sought to be proved u/o 41 r 27 CPC before the Appellate Court. Since the findings of the Ld. Trial Court wherein the prayer made in the plaint have been dismissed on the ground that the plaintiff/appellant has failed to prove the existence of sale deed dated 12.8.2003 and the general power of attorney allegedly in favour of the defendant no. 2 by the plaintiff, as certified copies of all these documents have now Contd... ... ...
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become available and those documents could have been become available if the Ld. Trial Court had exercised its power u/o 18 r 17 CPC as well as u/s 165 of the Indian Evidence Act, therefore, the impugned findings recorded by the Ld. Trial Court are not sustainable in the eyes of law. The appeal is, accordingly, accepted and impugned judgment is set aside. The Ld. Trial Court is directed to conduct a de novo trial after giving opportunity to the plaintiff/appellant to prove the documents i.e. general power of attorney dated 1.8.2003 and sale deed dated 12.8.2003 being forged and fabricated by the defendant and the mutation order dated 30.8.2003 being passed on the basis of those forged and fabricated documents. A copy of this order alongwith Contd... ... ...
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TCR be sent to the Ld. Trial Court. The plaintiff/appellant is directed to appear before the Ld. Trial Court on 20.8.2007. Appeal file be consigned to the record room after due compliance. Announced in the open Court on 9.8.2007.
(RAJ KUMAR CHAUHAN) ADDITIONAL DISTRICT JUDGE, DELHI Contd... ... ...