Delhi District Court
Delhi vs Smt. Asha W/O Late Sh. Sushil Kumar on 24 March, 2012
1 CS No. 160/12
IN THE COURT OF SH. SUSHANT CHANGOTRA: CIVIL JUDGE(WEST)
DELHI
SUIT NO. 160/12
Sh. Raj Singh S/o Sh. Bijey Singh,
R/o 68/26, K Block, Mahipalpur Extn.,
New Delhi37.
.....Plaintiff
Versus
Smt. Asha W/o Late Sh. Sushil Kumar,
R/o A53, Village Ber Sarai, New Delhi.
..... Defendant
Date of filing of the Suit : 11.01.2000
Date of decision : 24.03.2012
Suit for recovery of Possession and Mesne Profits.
JUDGMENT
1. The plaintiff filed the present suit under section 6 of the Specific Relief Act read with order 20 Rule 12 of CPC for 2 CS No. 160/12 recovery of possession and mesne profits. The brief facts of the case of the plaintiff are that Sh. Bijey Singh son of Late Sh. Harjas, R/o 53A, Village Berisarai, New Delhi, aged about 95 years, is the absolute owner of aforesaid property. He occupied, developed and built the house no. R/o 53A, Village Bersarai, New Delhi from his own labour and funds. This property falls within lal dora of Village Beri Sarai and is assessed to house tax in the name of Sh. Bijey Singh i.e. father of the plaintiff. The defendant is wife of Late Sh. Sushil Kumar i.e. son of plaintiff. Shri Sushil Kumar died on 17.06.99 at House No. 53A, Village Bersarai, New Delhi. The defendant was residing on the second floor of the premises i.e suit property with late Sh. Sushil Kumar being a licencee of Sh. Bijey Singh. The plaintiff was in possession of first floor and part of ground floor of House No. 53A, Village 3 CS No. 160/12 Bersarai, New Delhi. One of the room on the ground floor is in possession of the father of plaintiff. Latrine and bathroom on the ground floor were being used by the father of plaintiff as he has been residing on the ground floor in the room as mentioned above.
2. After the death of Sh. Sushil Kumar, defendant starting harassing the family of plaintiff for one reason or the other by filing false complaints to the police of P.S. Hauz Khas. Due to the harassment by the defendant, the plaintiff locked the first floor portion of the house no. 53A, Village Bersarai, New Delhi and shifted to another place alongwith his family to avoid the harassment from the hands of the defendant. All the household articles/goods of the plaintiff were in first floor portion of the premises/ property no. 53A, Village Bersarai, New Delhi when the plaintiff locked the first floor portion as 4 CS No. 160/12 shown in the site plan on 26.07.99. The plaintiff used to park his scooter on the ground floor and was using the other portion to put the grain drums. on 10.08.1999 the defendant broke the locks of the first floor portion of the house no. 53 A, Village Berisarai, New Delhi which was in possession of the plaintiff. The father of the plaintiff informed him on 11.08.99 that defendant has broken the locks of the portion in his possession. Then the plaintiff tried to persuade the defendant to handover the possession of the first floor portion and part of the ground floor and stolen goods but she flatly refused to handover the possession of the first floor and part of the ground floor portion which were in the possession of the plaintiff before 10.08.99. The plaintiff also tried to indulge the relatives but all his efforts went in vain. The defendant remained adament and did not handover the 5 CS No. 160/12 possession of the said floor. The plaintiff also filed several complaints to the police but no action was taken.
3. The plaintiff also pleaded that defendant is liable to pay mesne profits for their illegal possession since 10.08.99 which the plaintiff assesses as Rs. 3,000/ per month. The plaintiff has been dispossessed against his consent and without due process of law. The value of the suit for the purpose of court fees and jurisdiction for relief of possession is assessed at Rs. 1,10,000/ and for holding inquiry for determining the mesne profits at Rs. 200/. Thus, the plaintiff prayed that decree may be passed in favour of the plaintiff for recovery of possession of the suit premises i.e complete first floor and part of the ground floor as shown in the site plan. He further prayed that an inquiry to determine the mesne profit payable by the defendant to the plaintiff on 6 CS No. 160/12 10.08.99 till the possession is restored to the plaintiff be directed and thereafter, for the amount due together with interest @ 24 % p.a.
4. In the written statement the defendant took preliminary objection that the suit is not maintainable and the case of plaintiff is not covered within section 6 of the Specific Relief Act and by order 20 Rule 12 of CPC. No civil right existed in favour of the plaintiff. It has been averred that the deceased Sushil Kumar had been the coowner of the properties including the suit property no 8 of Village Ber Sarai, and other properties which were never partitioned. The said Sushil Kumar got married with the defendant in 1989 and she has been living in the suit property since then. The said Sushil Kumar was carrying on business of Cable TV under the name and style of M/s Tarun Cable Networking. This business was run from the ground floor of house no. 53A, Village Ber Sarai, New Delhi. The said Sushil Kumar committed suicide. The plaintiff and his family in collusion with Bijey Singh i.e father of plaintiff had harassed deceased 7 CS No. 160/12 Sushil Kumar and they abetted him to commit suicide. After his death they are harassing the defendant and her children to oust them from the Joint Hindu Family property.
5. The defendant also took objection that plaintiff has not come to the court with clean hand and he has suppressed material facts. The defendant and her children are the owners of the suit property and they are living in the suit property bearing no. 53A, Village Beri Sarai, Hauz Khas, New Delhi. The plaintiff was only in occupation of first floor of the suit property and no other portion of suit property. The plaintiff and his family vacated the said portion on 26.07.99 and delivered the possession of the same to the defendant. He and his family shifted to house no. 8 Village Beri Sarai, New Delhi in pursuance of decision of the biradri written on 14.07.99. The biradri was called by the plaintiff himself and he himself agreed and signed the decision by way of family agreement between the parties. He also made statement with the police. The plaintiff has no locus standi to file the present suit. The plaintiff has deliberately concealed his residential address from the court and has violated the 8 CS No. 160/12 mandatory provisions of CPC.
6. The defendant also took objections that the suit of the plaintiff is barred by limitation. The plaintiff alleges that he has been dispossessed on 10.08.99 to bring the suit within limitation.
7. The defendant also took objection that the suit is bad for non joinder of necessary parties. The plaintiff alleges that he derives his right in the suit property from Bijey Singh and therefore, Sh. Bijey Singh is a necessary party. The plaintiff knows that defendant has two children i.e one son and one daughter. They are also owner of the Joint Hindu Family property and are also in possession of the suit property including first floor and ground floor of the property.
8. The defendant also averred that the suit has not been properly valued for the purposes of court fees. Value of the property is Rs. 10 lakhs. The amount of mesne profits further adds to the valuation of the suit. The plaintiff is estopped from filing the present suit as the plaintiff himself vacated the property in dispute. Another suit for mandatory injunction has been filed by the defendant against the plaintiff, his wife, his 9 CS No. 160/12 daughters and his father which is pending in the Court of Sh. A.K. Chaturvedi, Ld. Civil Judge, Delhi. Lastly, the defendant took objection that the suit is not duly signed and properly verified.
9. On merits, the defendant admitted that Sh. Bijey Singh is the owner of the entire property in dispute. However, it has been denied that Bijey Singh is resident of the suit property. The defendant has been in possession of the ground floor since the life time of her husband and she has been running her Cable TV Business on the ground floor. Sh. Bijey Singh has been residing on the first floor with the plaintiff and only used to sleep in the said room. Sh. Bijey Singh also went away with the plaintiff on 26.07.99 and shifted to house no. 8 Village Ber Sarai, New Delhi. The said Bijey Singh alongwith plaintiff and other family members as a result of criminal conspiracy forcibly tried to enter into suit property on 10.08.99. He could not succeed as the defendant made a police complaint against him on 14.08.99 and also served legal notice dated 19.08.99 on said Bijey Singh, plaintiff and other family members. Plaintiff made statement in the police 10 CS No. 160/12 station that he has vacated the suit property and shifted to house no. 8, Village Ber Sarai, New Delhi on or about 26.07.99. He also informed that he has no more concern, right or interest in property no. 53A, Village Ber Sarai, New Delhi. In spite of the said fact Bijey Singh still forcibly with the help of police occupied the room on 21.09.99. The age of Bijey Singh being 95 years has been denied. The title of Bijey Singh on the suit property has also been denied. It has also been denied that Bijey Sihgh occupied, developed and built the house no. 53A Village Ber Sarai, New Delhi, from his own funds. Husband of the plaintiff had spent a lot of money on the construction of the property in the suit. It has also been denied that that property in dispute is assessed to house tax in the name of Bijey Singh. Once again it has been reiterated that Sunil Kumar died under mysterious circumstances on 17.06.99 and the case is still under investigation. It is denied that defendant with her husband and children was residing only on the second floor of the property in dispute. She has also denied that defendant and her husband were in occupation being licencee of Bijey 11 CS No. 160/12 Singh.
10. It has been denied that after the death of Sushil Kumar, the defendant started harassing the plaintiff and his family. It has also been denied that plaintiff has been parking scooter on the ground floor and has been putting grain drums for storage in the said portion of the house. Correctness of the site plan was denied. The defendant denied having broken the locks of first floor and ground floor. The defendant has been in occupation of entire house since 26.07.99. The other allegations regarding the request of the plaintiff to handover the possession of the plaintiff is denied. Thus, the defendant prayed that the suit may be dismissed with costs.
11. The plaintiff filed replication to the written statement and denied the contents of the written statement and reasserted the contents of the plaint. The plaintiff denied that he vacated house on 26.07.99. The decision of biradri dated 14.07.99 was also denied.
12. On 12.12.2000 on the basis of pleadings following issues were framed:
1. Whether the plaintiff was dispossessed from the suit 12 CS No. 160/12 property by the defendant on 10.08.99 as alleged? OPP.
2. Whether plaintiff is entitled to decree of possession of the suit property from the defendant as prayed? OPP
3. Whether the plaintiff is entitled to mesne profit from the defendant, if so, at what rate and for which period? OPP
4. Whether the suit is not maintainable as alleged? OPD
5. Whether the plaintiff has no cause of action to file the suit ? OPD
6. Whether the suit of the plaintiff is within time? OPP
7. Whether the suit is bad for non joinder of necessary parties ? OPD
8. Whether the suit has not property valued for the purpose of court fee and jurisdiction as alleged? OPD
9. Whether this court has no jurisdiction to try the suit?
OPD.
10. Relief.
13. The plaintiff stepped into the witness box as PW1. He gave deposition in support of his case. He also proved the site plan as Ex. PW 1/1, copy of complaint to the police as Ex. PW 1/2. The plaintiff was cross examined at length. The 13 CS No. 160/12 plaintiff also examined PW2 Ct. Prem Kishore. This witness proved copy of complaint as Ex. PW 1/3. In his cross examination he also proved copy of order of DCP a as Ex. PW 2/D1. PW3 HC Subhash proved the FIR No. 665/99 as Ex. PW 3/1. PW4 Zile Singh son of Late Sh. Ram Prasad in his examination in chief supported the case of the plaintiff. He stated that on 26.07.99 he came to know that Raj Singh has loaded his goods. He persuaded both the parties not to go, then Raj Singh locked the gate of the first floor. He was also cross examined. PW5 Satish Kumar also deposed that on 26.07.99 plaintiff locked his house and shifted to Mahipalpur. He locked first floor of his property. He left two cots and beddings in the room. PW6 Anil Kumar appeared and proved the site plan as Ex. PW 1/1. Then the plaintiff closed P.E on 28.10.06.
14. On the other hand, defendant stepped into the witness box as DW1. She tendered her affidavit as Ex. DW1/A and reiterated the contents of the written statement. She also proved the site plan as Ex. DW1/1 and family settlement dated 17.06.99 as Ex. DW1/2. Other family settlement dated 14 CS No. 160/12 14.07.99 as Ex. PW1/3, report to police as Ex. PW1/4, legal notice Ex PW1/5, postal receipts as Ex. PW1/6 to Ex. PW1/10, other postal receipt dated 14.08.99 as Ex. PW1/11. Statement of Raj Singh as Ex. PW1/12, copy of DD No. 13A as Ex. PW 1/15 and police report dated 13.07.99 as Ex DW1/16, postal report dated 02.08.99 as Ex. PW1/17. Report of complaint of Rajesh Kumar as Ex. DW1/18 and the correspondence with the counsel for plaintiff as Ex. DW1/19/1 and DW1/19 and DW1/20 to DW1/24. She was cross examined at length.
15. DW2 Om Parkash tendered his affidavit as Ex. DW2/A. He also supported the case of the defendant. He stated that he signed the panchyatnama dated 14.07.99 and the plaintiff vacated the portion in his possession on the basis of said panchayatnama. DW3 Ishwar Mishra, Public Relation Inspector produced the summoned record. He reaffirmed the authenticity of documents Ex. DW1/A to F, I, S and O. He also proved letter Ex. DW1/19 and DW1/19/I, DW1/20 to DW1/24.
16. DW4 Rajinder Chawla, Public Relation Inspector Hauz 15 CS No. 160/12 Khas, P.O. New Delhi, stated that Ex.DW1/19 to DW1/22, DW1/24 and DW1/19J were issued by their office. He also proved Ex. DW1/19G, DW1/19U, DW1/19Q and DW1/19, DW1/19A, DW1/19P and DW1/19E. PW5 Ct. Udyan appeared and stated that the summoned record of PS Hauz Khas has been weeded out.
17. DW6 Ct. C.P. Silwal proved the documents Ex. DW6/1 to DW6/10. DW7 SI Yudhvir Singh appeared and stated that he had handedover the record of the investigation in 1999 itself. He also proved the certified copy of the written statement filed by him in the other case as Ex. DXW1/P3. Lastly DW8 Ct. Harish Chand was examined. He proved the copy of kalandra as Ex. DW8/1 and Ex. DW3/3. In his cross examination he was put the statement Ex. PW8/P1 and PW8/P2. The defendant closed evidence on 18.11.10.
18. I have heard arguments. Ld. Counsel for the plaintiff has argued that the case of plaintiff has been duly proved by PW1 Raj Singh, PW4 Zile Singh and PW5 Satish Kumar. It is proved that plaintiff was in possession of first floor and portion of the ground floor. The witnesses have duly 16 CS No. 160/12 supported the case. PW 4 Zile Singh and PW5 Satish Kumar categorically stated that the plaintiff had put locks on the first floor of the property. It is admitted fact that the defendant is now in possession of it. The plaintiff has also deposed that he was dispossessed without his consent. The Ld. counsel vehemently argued that the statements of the witnesses proved on record as Ex. DW8/P1 and P2 also proved that the plaintiff was in possession and he was dispossessed without his consent and otherwise than in due process of law. Thus, the plaintiff has been forcibly dispossessed from the suit property. The mesne profits as claimed have also been proved. Thus the suit may be decreed.
19. On the other hand ld. Counsel for defendant has advanced arguments at length. He has argued that the husband of the defendant died under mysterious circumstances. The plaintiff and his family members vide agreement Ex. DW1/2 left the house on 26.07.99. The Panchayat nama has been duly proved on record by the defendant DW1 and the other witness DW2. The witnesses 17 CS No. 160/12 produced by the plaintiff are interested witnesses. PW4 Zile Singh and PW5 Satish were interested witnesses. PW4 Zile Singh refused to admit his signatures on Ex. DW1/2. He was not able to tell who was in possession of the suit property.
20. He further argued that the plaintiff concealed material facts and concealed the address where he had shifted after vacating the premises. The kalandra Ex. DW8/1 proved that he went to house no 8 Villege Beri Sarai. The plaintiff in his cross examination admitted Ex. DW1/12. The ground floor of the property was in possession of the husband of the plaintiff and the plaintiff has failed to prove his possession of the ground floor.
21. I have considered the arguments and gone through the evidence on record. My issue wise findings are given as below:
ISSUE NO. 1
22. The onus to prove this issue was on the plaintiff. The plaintiff in this respect has led lengthy evidence. He has himself deposed that he had locked the premises and then left the house on 26.07.99. He further deposed that he left a 18 CS No. 160/12 charpai and two beddings in the house. He left the premises as he was being harassed by the plaintiff. The plaintiff claims that he was in possession of the entire first floor and a portion on ground floor. However, the plaintiff in his entire evidence has only stated that he locked the premises of the first floor. With respect to the ground floor he stated that he used to park his scooter on the ground floor and had kept a flour mill on the ground floor. He has not deposed whether any other portion of ground floor was in his exclusive possession Thus, as per case of the plaintiff he was only using the ground floor when he was in possession of the first floor.
23. It is the admitted case of parties that defendant was living on the second floor of the property alongwith her husband. The only dispute is as to when he left the premises and whether he was dispossessed without his consent. He has not even deposed orally as to which of the portion of ground floor was exclusively in his possession. The defendant has also set up the case that after leaving the premises he went to 6B/26 K. Block Mahipalpur Extension, 19 CS No. 160/12 New Delhi. In support of his contentions the plaintiff examined PW4 Zile Singh and PW5 Satish Kumar. Admittedly both the witnesses are related to the plaintiff. Since this witness was closely related to the plaintiff, the veracity of his testimony has to be scrutinized carefully so as to find whether his deposition is worth of credibility. PW4 Zile Singh in his cross examination has stated that on 26.07.99 plaintiff left the house no. 53A Village Ber Sarai, New Delhi by locking his house. However, he did not know in which vehicle plaintiff took away the goods and he did not see any of the goods belonging to Raj Singh being taken away. This witness denied his signatures on the compromise deed which was later on proved as Ex DW1/2 and DW1/3 respectively. He also tried to mislead by saying that he signs as 'Z.S. Pawar', whereas lateron he admitted that he has signed as 'Zile Singh' in the Court. This fact was otherwise also apparent from the record. If PW4 Zile Singh would have been present at the spot, he could have easily told about the vehicle in which household articles/ other goods were shifted or the manner in which they were taken. 20 CS No. 160/12
24. Though, the other witness PW5 also supported the case of the plaintiff. But his presence on the spot is also doubtful. During the course of deposition PW1 Raj Singh did not state to the effect that PW 5 Satish was present there at the spot. In his examination in chief PW1 Raj Singh has deposed that one Zile Singh, Mahinder and his sister's son Satbir were present at that time. Thus, the testimonies of both these witnesses failed to inspire confidence as to truthfulness.
25. On the other hand, the case of the defendant is that the plaintiff had left the entire premises and handedover entire possession to her in pursuance of deed of family settlement Ex. DW1/3. In the said agreement it was admitted that the plaintiff will leave the possession of the property in dispute on 10.08.99. The defendant not only deposed categorically in his own statement but also examined DW2 Om Parkash to prove these facts and the said documents. DW2 categorically deposed in support of the case of the defendant. He also identified his signatures on the agreement Ex. DW1/2 and DW1/3 respectively. Thus, the 21 CS No. 160/12 defendant was able to prove the compromise executed between the parties i.e Ex. DW1/2 and Ex. DW1/3 respectively. Therefore, it is proved on record that the plaintiff had agreed to handover the vacant possession of property in dispute to the son of the defendant.
26. The plaintiff has not examined any witness to disprove these agreements which have been proved on record as mentioned above. The plaintiff in his examination in chief has not uttered a single word to the extent that no such compromises came into existence or they were forged. Even PW4 Zile Singh in his examination in chief did not depose anything with regard to agreement as mentioned above. In his cross examination when he was confronted with his own signatures, he simply denied those to be his signatures. He tried to wriggle out of the situation by saying that he sign as Z.S. Pawar. However, he was once again confronted and he admitted that during the course of examination in the court he has also signed as Zile Singh. Therefore, from the aforesaid testimony of PW Zile Singh it is apparent that he tried to deny his signatures simply to support the case of the plaintiff. 22 CS No. 160/12
27. The plaintiff did not examine any witness much less to say an expert witness to disprove the agreement Ex. DW1/2 and DW1/3. Thus, there is complete lack of evidence from the plaintiff that the said compromise was forged and fabricated. Once this agreement has been proved, it also establishes that the plaintiff concealed this fact from the court by not mentioning the same in his plaint.
28. Oral evidence of the plaintiff that he has left the premises by locking the door does not inspire confidence as the supporting witnesses appears to be unworthy of trust. Even the presence of Satish Kumar is doubtful. On the other hand, the testimony of DW1 and 2 has withstood the test of cross examination. The defendant has also proved on record the copy of FIR Ex. DW6/1. This document shows that husband of the defendant died an unnatural death. Even in the compromise deed DW1/3 it is mentioned that the defendant shall withdraw her complaint against the plaintiff etc of her own will. Thus the stand of the defendant that the plaintiff had compromised the matter vide Ex. DW1/2 and DW1/3 as they wanted to avoid criminal prosecution further lends 23 CS No. 160/12 authenticity to the case of defendant that the plaintiff had left the possession of the property in dispute of his own free will.
29. The defendant also examined DW8. He proved the kalandara Ex. DW8/1. This kalandara bears the address of the plaintiff as 8, Ber Sarai, New Delhi. This fact further lends corroboration to the defence of the defendant that the plaintiff had handedover the vacant possession of the property in dispute to her and then went to the other house in the same area i.e in 8, Beg Sarai, New Delhi.
30. It is also necessary to note that even as per admitted facts of the plaintiff, he did not file any complaint to the police immediately. The abovesaid conduct of the plaintiff in itself is quite unbelievable. The person who has been harassed at the instance of anyone else will not wait for fortnight before making complaint to the police, even when the other person is his daughter in law with whom he has strained relations. Moreover, since it has been established that the plaintiff was residing immediately after the alleged incident in 8, Ber Sarai, New Delhi, his version that he could not know about his dispossession by the plaintiff earlier is without sound 24 CS No. 160/12 basis. If the defendant who is a widow lady would have dispossessed the plaintiff, the plaintiff would have certainly come to know about the said act of dispossession immediately as he was living in the same vicinity. The plaintiff has also not mentioned as to what time of the day on 10.08.89 the defendant has dispossessed the plaintiff from the first floor.
31. Ld. Counsel for the plaintiff has placed very heavy reliance on the statements Ex DW8/P1 and DW8/P2. In fact, his entire arguments revolved around the fact that these are admitted documents of the witness of the defendant, thus, these statements clearly prove that the plaintiff was dispossessed. I have considered the aforesaid arguments but I am not inclined to agree with it. DW8 was a public witness who brought the record pertaining to the kalandra Ex DW8/1. The aforesaid record contained several documents including the documents Ex. DW8/P1 and P2 which were put to this witness. These statements were in the course of the investigation with regard to the proceedings of the said kalandra. Thus, the statement of DW8 that these statements 25 CS No. 160/12 are on record can not in any way be considered as an admission on the part of the defendant. The term admission has been defined in Section 17 of the Indian Evidence Act as, "An admission is a statement, oral or documentary, which suggests an inference as to any fact in issue or relevant fact and which by any of the persons and is relevant under the circumstances, hereinafter mentioned". These statement i.e Ex. DW8/P1 and P2 are not relevant as per sections 18 to 23 of the Indian Evidence Act.
32. The maker of said statement has not been produced in the court by the plaintiff or by the defendant. In B. Muthiah vs. The Chairman and Managing Director, the Hon'ble Madras High Court in writ petition no. 12759 of 2009 dated 16.08.11, has held that, " The enquiry officer performs a quasijudicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the 26 CS No. 160/12 parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence". Similarly in the present case the statements Ex. PW. DW8/P1 and P2 were produced from the police file of the kalandra. Thus, DW8 could not have proved factum of these statements which were recorded during the course of investigation of the police.
33. The Hon'ble Delhi High Court in Shri Kedar Nath & another vs. Vijay Kumar Kapani in RSA NO. 67/09 and CM NO. 7544/09 vide judgment dated 19.07.2010 has held, "the Courts below had held that this document had not been proved as per rules of evidence and rightly so the maker of the document had not come into witness box to prove it and 27 CS No. 160/12 neither was there any testimony to the effect that the person testifying it could identify the signatures of the person who had signed it". Therefore, these statements cannot be read in evidence.
34. Mere exhibition of the document does not prove the documents itself. The Hon'ble Delhi High Court in Motor & General Finance Ltd. vs. Milap Bus Service (Regd.) 94 (2001) DLT 171, held that, "The marking of document as an Exhibit is only for the purposes of the identification ;of a document. Mere exhibiting of a document does not tantamount to its proof. Reliance made by the respondents on the decision of this Court in the case of Sudir Engineering Company Vs. Nitco Roadways Ltd., is misconceived. The judgment does not help them. The ratio of the decision is that an endorsement of exhibit number of a document does not per se prove the document, to enable the same to be admissible in evidence. The crux of the decision is that mere exhibiting of a document does not lead to the conclusion that the document is proved and is admissible in evidence. In 28 CS No. 160/12 other words, an unproved document cannot be taken as proved by mere exhibiting the same. This finding was returned while referring to a number of decisions of Lahore High Court and a Supreme Court decision reported as Sait Taraji Khumachand Vs. Yelamariti Satyam."
35. These statements are not signed by the persons by whom they are purportedly made. These statements recorded by police could at the most be considered as statements u/s 161 of Cr. P.C. Section 162 of Cr.P.C read with section 145 of Indian Evidence Act clearly creates a bar that the said statements are inadmissible in evidence in the court and can only be used for the purpose of contradiction. Even if the said statement is considered to be a simple statement given to any other person, even then it has to be proved by the person who is making the said statement. These two persons whose statement have been relied upon by the plaintiff have never been produced in the court. The defendant could not have got an opportunity to cross examine these witnesses. I.O. may have recorded the statements of any number of persons who may have either 29 CS No. 160/12 deposed in favour of either of the parties, therefore, the defendant cannot be burdened with the liability as an admission on her part simply by producing the statements of third person recorded by the police officials in the course of investigation of one kalandra. Thus, these documents are inadmissible in evidence and are not in any way admission by the defendant.
36. Therefore, the evidence produced on record shows that the plaintiff entered in a compromise and then vacated the premises on the basis of the said compromise. Thus, the plaintiff has failed to prove that he was in possession of the part of ground floor. He has also failed to prove that he has been dispossessed without his consent from the suit property on 10.08.99 by the defendant. Accordingly, this issue is decided in favour of the defendant and against the plaintiff. ISSUE NO. 2
37. Onus to prove this issue was on the plaintiff. It has been held that the plaintiff was not dispossessed from the suit property. He had himself delivered the vacant possession of 30 CS No. 160/12 the property to the defendant in pursuance of their compromise. The plaintiff was under obligation to establish that he was dispossessed without his consent and otherwise than in due process of law. However, the plaintiff has failed to prove all these essential facts. Thus the plaintiff has failed to prove this issue and it is decided against the plaintiff. ISSUE NO. 3
38. The onus to prove this issue was on the plaintiff. Since the plaintiff has failed to prove that he was dispossessed without his consent, therefore, the possession of the defendant in the suit property is completely legal. The person who is not the owner of the property cannot claim damages for the usage of property from a person who is in a lawful possession of property. The present suit has been filed u/s 6 of Specific Relief Act. The proceedings of the said suit are summary in nature. It is for restoration of possession in case of unlawful dispossession. The trial as to mesne profit/damages is beyond the scope of present suit. Thus the plaintiff has not been able to prove that he is entitled to 31 CS No. 160/12 mesne profits from the defendant. Accordingly, this issue is decided against the plaintiff and in favour of the defendnt. ISSUE NO. 4
39. Onus to prove this issue was on the defendant. The defendant has not led any evidence nor advanced any arguments. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 5
40. Onus to prove this issue was also on the defendant. The defendant has not led any evidence nor advanced any argument. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 6
41. Onus to prove this issue was on the plaintiff. The case of the plaintiff is that he was dispossessed on 10.08.99. On the other hand, the case of the defendant is that the plaintiff handedover vacant possession of the suit property on 26.07.99. Section 6 of the Specific Relief Act clearly stipulates that the plaintiff has to file the suit u/s 6 of the 32 CS No. 160/12 Specific Relief Act within the period of six months. The present suit was filed on 10.01.00. Hence keeping in view both the contents and rival contents, in both the circumstances the present suit was filed within six months of both the said dates. Thus, this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 7
42. Onus to prove this issue was on the defendant. The defendant has not led any evidence with respect to this issue. The arguments that Sh. Bijey Singh was a necessary party is without merits. The suit u/s 6 of Specific Relief Act is based purely on possession of property rather than ownership. The present suit u/s 6 of Specific Relief Act could only have been filed against the person from whom dispossession has been alleged. Any person who has been dispossessed can file the present suit. Thus, Shri Bijey Singh who has neither been dispossessed nor is claimed to have dispossessed is neither a necessary nor a proper party. Accordingly, this issue is decided against the defendant and 33 CS No. 160/12 in favour of the plaintiff.
ISSUE NO. 8
43. Onus to prove this issue was on the defendant. The defendant has not led any evidence nor advanced any argument on this issue. Accordingly, this issue is decided against the defendant and in favour of the plaintiff. ISSUE NO. 9
44. Onus to prove this issue was on the defendant. The defendant has not led any evidence nor advanced any argument. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
RELIEF
45. In view of the findings given on issue no. 1 to 3, the suit of the plaintiff is dismissed with no order as to costs. Decree sheet be prepared. File be consigned to Record Room after due compliance.
Announced in the open court (SUSHANT CHANGOTRA) On 24.03.12. CIVIL JUDGE06 (WEST)