Delhi District Court
M/S Samrat Furniture Mart & Ors vs Registered Society Known As on 22 January, 2007
1
IN THE COURT OF SHRI D.C.ANAND
ADDL.DISTRICT JUDGE:DELHI.
In RCA No. 42/05
M/s Samrat Furniture Mart & Ors. ...Appellants
Versus
Registered Society Known as
Gurudwara Babazorawar Singh Ji
through its President & Sectretary ...Respondents
In RCA No. 43/05
M/s Samrat Furniture Mart & Ors. ...Appellants
Versus
Registered Society Known as
Gurudwara Babazorawar Singh Ji
through its President & Sectretary ...Respondents
In RCA No. 44/05
M/s Samrat Furniture Mart & Ors. ...Appellants
Versus
Sh. Trilochan Singh Basali & Ors. ...Respondents
ORDER
1. These appeals have been directed against the 2 common judgment and decree dated 27.9.2005 passed by Ld. Civil Judge in suit Nos. 509/02/86, 510/02/88 and 511/02/2000 whereby suit No. 509/02/86 of the plaintiffs/respondents was decreed and the defendants/appellants were directed to hand over the vacant peaceful possession of the property bearing No. WZ-678C, Shiv Nagar, New Delhi as shown in red colour in the site plan Ex. PW 6/7 to the plaintiffs; suit No. 510/02/88 was decreed for a sum of Rs. 1800/- along with interest @ 6% p.a from the date of filing of the suit till the realization of the decreetal amount while suit No. 511/02/2000 was also decreed for an amount of Rs. 3,000/- with damages @ Rs. 200/- p.m from the date of filing of the suit till the date vacant peaceful possession of the suit premises is handed over by the defendants to the plaintiffs with costs in all the suits.
2. Tersely the facts leading to the passing of the impugned judgment and decree are that property in 3 suit was purchased by Smt. Prem Kaur w/o Sh. Darshan Singh for a consideration of Rs. 4500/- vide sale deed dated 6.6.1958 duly registered vide document on page 393 to 397 in the office of Sub Registrar Delhi, who died on 9.9.1969. The property devolved upon plaintiff no.1 to 4 and husband and father of plaintiff no. 5 to 7 respectively as legal heirs of Smt. Prem Kaur.
3. Sh. Amrik Singh who was carrying on business of M/s Samrat Furniture Mart as Sole Proprietor was an unauthorised occupant in portion measuring 57.5 sq yds of plot No. WZ-145, as shown in red colour in the site plan filed along with the plaint, who transferred his unauthorised possession after November 1984 riots to one Sh. Harminder Singh for consideration in the beginning of the year 1995. Sh. Harminder Singh died and thereafter defendant no.2 to 4 are in unauthorised possession of the suit property carrying on business under the name and style of M/s Samrat Furniture 4 Mart. The defendants no.2 to 4 also raised certain unauthorised construction of which complaint was lodged with M.C.D on 16.1.1986.
4. A legal notice dated 8.4.1986 was served upon the defendants who have no right in any manner to remain or continue in possession of the suit property. In reply to the notice it was stated that M/s Samrat Furniture Mart is a partnership firm and in occupation of the property through its partner in their own rights.
5. The property in suit was purchased from the legal heirs of Smt. Prem Kaur vide six registered sale deeds executed in favour of the plaintiff society on 26.3.99 who also issued notice to the defendants dated 1.6.2000 to pay the damages which was not complied with and hence the suit for damages.
6. The defendant no.1 and 2 filed written statement through one Sh. Satinder Singh claiming to be the power of attorney holder of Sh. Amrik Singh but 5 later on after the amendment of the plaint an amended written statement was filed on behalf of defendant no.1 by Sh. Satinder Singh as its partner wherein Sh. Amrik Singh was stated to be in possession of the suit property since about 1970 openly and adversely to all concern enjoying the rights of ownership thereof which was occupied by him when the same was lying deserted and vacated without any assertion of right and interest by anybody who also raised construction upon the same and started initially business under the name and style of M/s Amrik Singh & Bros., later on after 3-4 years as M/s Surjit Singh & Co. and in the year 1980 as M/s Samrat Furniture Mart which is being carried on till date. The averments of the plaint were denied by this defendant in toto while admitting notice on the defendants and reply thereto wherein it was stated to be unnecessary the status of defendant no.1 in occupation of suit property as plaintiffs were aware 6 that Sh. Amrik Singh is partner of defendant no.1 and is in adverse possession of the suit property for more than 20 years.
7. The defendants no.2 to 4 averred that they have no concern of any type with the suit property and the plaintiffs have no locus standi to file the suit as their mother Smt. Prem Kaur was never the owner of the suit property. Sh. Amrik Singh was stated to be the owner of the suit property by way of adverse possession while denying the averments of the plaint in toto.
8. The findings of the Ld. Civil Judge in the three suits were assailed on the ground that the same are contrary to law and facts as appellant no.1 and 3 i.e M/s Samrat Furniture Mart and Satinder Singh were never in unauthorised occupation of the suit property while appellants no. 2 and 4 namely Satpal Singh and Harjinder Singh had never any right, title or interest in the suit property nor in possession of the suit 7 property running the business thereon. The plaintiffs/respondents have failed to prove that Smt. Prem Kaur purchased the suit property in Shiv Nagar Extn. vide sale deed Ex. PW 1/A. No finding was given by Ld. Civil Judge as to whether the suit property which is admittedly situated in Shiv Nagar Extn is the same property covered in sale deed Ex. PW 1/A which describes the sold property in Fateh Nagar Extn as the two properties are different one. The Vendee of sale deed Ex. PW 1/A never took possession of the suit property as per evidence on record although the sale deed states so which fact was not discussed so as to differentiate between the two properties. The presumption of certified copies under Section 90 of The Evidence Act is not available as the same pertains to original documents as only also endorsement on the certified copies can be proved and not the contents which is also not a public document as defined under 8 Section 74 of the Evidence Act.
9. The mutation in the revenue and house tax records do not confer title of the suit property in anybody's favour including of the plaintiffs who have no title in the suit property. The findings regarding ownership of the suit property in favour of the plaintiffs/respondents is stated to be erroneous as sale deed Ex. PW 1/A does not at all prove that the plaintiffs/respondents were owners of the suit property as also the sale deed Ex. PW 1/A does not at all show that Smt. Prem Kaur purchased the plot of land in Shiv Nagar Extn. which sale deed is not at all proved and cannot be looked into as certified copy of the sale deed Ex. PW 1/A is not admissible and plaintiffs cannot succeed on the basis of inadmissible document. Misinterpretation of the Registration Act as well as The Evidence Act is also alleged as ground to assail the impugned judgment with regard to Jeet Ram who 9 executed sale deed. The partner of M/s Samrat Furniture Mart i.e appellant no.1 is also stated to have become the owner by adverse possession and hence suits were liable to be dismissed as also Sh. Satpal and Sh. Harjinder were added as defendants vide amended plaint dated 23.10.90 and no decree can be passed against them for more than three years prior to 23.10.87.
10. The appellants further stated that the Ld. Trial Judge committed error in holding that the appellant no.1 is not a partnership firm of appellant no.3 with Sh. Amrik Singh although it is admitted by PW.2 Sh. Amarpal Singh in his cross examination dated 20.3.2003 that appellant no.2 - defendant no.1 is a partnership firm and this fact stands confirmed by the original plaintiffs also inasmuch as they initially filed the suit for possession on 19.5.1986 against defendant no.1 i.e M/s Samrat Furniture Mart through its 10 Proprietor Sh. Amrik Singh. The other evidence in this respect fully proves that defendant no.3 and Sh. Amrik Singh were partners of the firm of defendant no.1. The judgment as such is stated to be based upon surmises and conjectures which need to be set aside.
11. In reply filed in RCA No. 43/05 as was applicable to other RCAs, the respondent contested the appeal as not maintainable as a trespasser has no right to seek injunction who was not a party to the proceedings in the trial court as M/s Samrat Furniture Mart was a proprietorship concern and not a partnership firm.
12. On merits, the impugned judgment and decree are stated to be inconformity of law and procedure as no objection was taken when the application under Section 65 of the Indian Evidence Act was allowed and secondary evidence of sale deed was proved in accordance with law.
11
13. The respondent further stated that the property described in Ex. PW 1/A is the property which was purchased by Smt. Prem Kaur and the description of the property given in the sale deed Ex. PW 1/A matches with the site and above all matches with the site plan filed by the appellant no.2 i.e Ex. DW 6/P.1, which is on the record of suit No. 511/2002. Further, there was no plea as such with regard to the suit property in the pleadings. The title of Smt. Prem Kaur when declared in her favour, her legal heirs have all the rights to sell the property in favour of plaintiff society. The survey reports further proved that it was Smt. Prem Kaur's property only in which Amrik Singh was in possession at one time. Later on he passed on the possession to Sh. Harminder Singh, who was the father of appellant no.2 to 4. In the written statement filed by the defendants, they have admitted that the property in which they are in possession is forming part of Kh No. 12 535 only of which Smt. Prem Kaur is the owner as per sale deed Ex. PW 1/A.
14. Regarding property respondent stated that in the cross examination of Trilochan Singh son of Smt. Prem Kaur, PW.6, it was suggested to him that the sale deed of Smt. Prem Kaur relates to some property in Fateh Nagar Extn, and that the disputed property is not covered under the said sale deed. The said suggestion came because in the translation of sale deed filed on record, on the first part of the document, it is mentioned "The Vendors are owners of open plot bearing No. 49 measuring 383.1/3 sq yds out of Khasra 535 bounded as under: North : Katcha Rasta 30 ft., Sough Katcha Rasta 15, East Jail Road, West Plot No. 48, situated in the area of village Tihar, Delhi State, within the abadi known as Fateh Nagar Extn ........." Again in the second page of sale deed, Khasra No., plot No. and the area of the plot is mentioned. It is 13 submitted that the property is to be recognized in sale deed by the description of its Directors i.e North, East, South, West, under Section 21 of the Registration Act.
15. Regarding adverse possession the respondent stated that in the judgment it has been rightly held that adverse possession requires animus and Amrik Singh, as admitted in his evidence, never declared himself owner of the property, and neither did he have any document to show his long possession. On these counts the appeal is sought to be dismissed by the respondents.
16. I have heard Ld. Counsel for the parties and have perused the impugned judgment, grounds of appeal as well as the case file of the Ld. Trial Court. My findings on the specific issues as submitted before this court with regard to sale deed Ex. PW 1/A with the plea that the suit filed by the respondent could only succeed on the strength of the title against the 14 defendants/appellants notwithstanding that defendants/appellants have no title to the suit property. In this connection reference is made to the case of Brahma Nand Puri Vs. Neki Puri since deceased represented by Mathra Puri and another reported in AIR 1965 SC 1506. As such learned counsel for appellants submitted that no primary evidence has been adduced by the respondent/plaintiff to prove the ownership/title of the suit property as the executant, scribe or attesting witness of the sale deed Ex. PW 1/A is not produced to prove the execution of the certified copy of the sale deed Ex. PW 1/A in term of section 67 of the Evidence Act.
17. Learned counsel for appellants further submitted that mere allowing a party to lead secondary evidence under Section 65 of the Evidence Act does not mean that proof of execution of the document is 15 dispensed with. In support of the submissions reference is made to the case of Naresh Chandra Bose Vs. State of West Bengal and others reported in AIR 1955 Calcutta 398; Akshya Narayan Praharaj Vs. Maheswar Bag reported in AIR 1958 Orissa 207; and Sri Lakhi Baruah and others Vs. Sri Padma Kanta Kalita and others reported in AIR 1996 SC 1253.
18. On the other hand, besides placing the reliance on the authority reported in Sri Lakhi Baruah and others Vs. Sri Padma Kanta Kalita and others reported in AIR 1996 SC 1253(Supra), Learned counsel for respondent submitted that certified copy of the sale deed Ex. PW 1/A has been duly proved by the plaintiffs after taking permission under Section 65 of the evidence Act through the office of the Sub Registrar witness on which no cross examination was conducted 16 by the defendant after recording objection during examination-in-chief of the witness on the mode of exhibition and proof. Learned counsel for respondent also referred to the statement of PW.6 who proved the execution of the document (sale deed Ex. PW 1/A) when he deposed that his mother Smt. Prem Kaur has purchased the property from the owner of the property vide sale deed Ex. PW 1/A which was duly registered in the office of Sub Registrar in whose favour mutation certificate was issued and after her death mutation was entered in the name of her legal heirs in the year 1997 of which copies are proved as Ex. PW 6/1 and Ex. PW 6/2. The survey report for the year 1975 and 1982 proved as Ex. PW 6/3 and Ex. PW 6/4 shows the ownership in the M.C.D records in the name of Smt. Prem Kaur wd/o Sh. Darshan Singh. No doubt this witness does not know the name of the owner of the suit property who sold the same to his mother nor was 17 present at the time of execution of Ex. PW 1/A but that itself is not sufficient to belie the execution of the document of sale in favour of Smt. Prem Kaur. It is so because of law laid down by the Privy Council in the case of Basant Singh and others Vs. Brij Raj Saran Singh and others reported in AIR 1935 Privy Council 132 wherein their Lordship observed as under:
"Section 90, Evidence Act, clearly requires the production to the Court of the particular document in regard to which the Court may make the statutory presumption. If the document produced is a copy, admitted under S. 65, as secondary evidence, and it is produced from proper custody and is over thirty years old, then the signatures authenticating the copy may be presumed to be genuine, but it is not sufficient to justify the presumption of due execution of the original under S.90." 18
19. There is substance in the submissions that execution of the document is not disputed when the same was proved by the witness from the office of the Sub Registrar Sh. Prem Kohli as Ex. PW 1/A as only exhibition and mode of proof was disputed by the defendant. In this connection reference is made to the observations of their Lordship in the case of Sital Das Vs. Sant Ram and others reported in AIR 1954 SC 606 wherein their Lordship observed as under:
"The language of Section 90 requires the production of the particular document in regard to which the Court is invited to make the statutory presumption. If the document produced is a copy, admissible as secondary evidence under section 65 and is produced from proper custody and is over 30 years old, then only the signatures authenticating the copy may be presumed to be genuine; but production of a copy is not sufficient to raise the presumption of the 19 due execution of the original."
20. Observations of their Lordship in the case of Sri Lakhi Baruah and others Vs. Sri Padma Kanta Kalita and others reported in AIR 1996 SC 1253 (Supra) wherein their Lordship observed as under
also comes to the help of the respondent in the given facts and circumstances of the case when their Lordship observed as under:
"Section 90 of the Evidence Act is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the document in question is produced from proper 20 custody. It is, however, the discretion of the Court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reason.
Presumption under Section 90 does not apply to a copy or a certified copy even though thirty years old; but if a foundation is laid for the admission of secondary evidence under Section 63 of the Evidence Act by proof of loss of destruction of the original and the copy which is thirty years old is produced from proper custody, then only the signature authenticating the copy may under Section 90 be presumed to be genuine."
21. Reference made to the cases reported in Subudhi Padhan Vs. Raghu Bhuvan reported in AIR 1962 Orissa 40; Jagdip Singh and after his death Ram Kishun Singh and others Vs. Kausal 21 Kishore Singh and others reported in AIR 1958 Patna 294; Kalyan Singh Vs. Smt. Chhoti and others reported in AIR 1973 Rajasthan 263;
Mumtaz Husain and others Vs. Babu Brahmanand reported in AIR 1936 Allahabad 298; Vithoba Savlaram Vs. Shrihari Narayan reported in AIR (32) 1945 Bombay 319 coupled with the proof of execution of the same by the owner of the suit property in favour of Smt. Prem Kaur, mother of PW.6, as discussed above, I hold that the sale deed in favour of Smt. Prem Kaur has been duly proved by the plaintiffs of which contents were not at all challenged by the defendants as also suggestion that Smt. Prem Kaur never purchased the suit property is substantiated on record by placing better evidence than as placed and proved on record by the plaintiffs.
22. There is substance in the submissions by Learned counsel for respondent that certified copy of 22 the sale deed proved as Ex. PW 1/A is a public document as per section 74 clause (2) of the Indian Evidence Act 1872 and as such the Court shall take judicial note of the same under Section 57 of the Evidence Act which need no further proof of execution of the same which too was not at all challenged by the defendant as only mode of exhibition and proof was got recorded without disputing the contents thereof by the defendant. In this connection reference is also made to section 77 of the Evidence Act joined with section 79 of the Evidence Act so as to draw presumption as to the genuineness of the certified copies of the public document. Reference is also made to the provisions as contained in section 57 sub clause (5) of the Registration Act 1908 wherein all certified copies of the documents/entries in the books of Registrar Office shall be admissible for the purposes of proving the contents of the original documents which according to the 23 appellants are proved on record after taking permission under Section 65 of the Evidence Act to prove the sale deed by way of secondary evidence.
23. Regarding objections about attorney of the vendor whose name appeared in the sale deed Ex. PW 1/A, Learned counsel for respondent referred to the provisions of section 60 Sub Clause (2) of the Registration Act which reads as under so as to say that presumption which has not been rebutted or challenged or controverted in evidence by the appellants/respondents exist in favour of the respondent with regard to the contents of the document including attorney of the vendor.
"S.60 (2) ...Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsement, referred to in 24 section 59 have occurred as therein mentioned.
24. In view of the evidence as brought on record and as discussed by the Ld. Civil Judge in para 34 which reads as under and the discussion as made above, I do not see any ground to interfere with the findings of the Ld. Civil Judge that the plaintiffs who had filed the suit originally have proved their ownership of the suit property in favour of Smt. Prem Kaur vide sale deed Ex. PW 1/A which was later on purchased admittedly by the present plaintiffs/respondents vide sale deeds Ex. PW 2/1 to Ex. PW 2/6 and the rectification deeds Ex. PW 2/7 to Ex. PW 2/12 which were not challenged by the defendant.
"In the present case Ex. PW 1/A is a certified copy of the sale deed in favour of Smt. Prem Kaur mother of original plaintiffs. PW.1 appeared before the court and produced the original book wherein the sale deed Ex. PW 1/A has been registered. He produced before the 25 court the original of the sale deed as available in the said register. To my mind it being a counter part signed by all the parties was a primary evidence of the contents of the document as provided under Section 62 of the Evidence Act. further more Ex. PW 1/A which is a certified copy of the sale deed is also admissible in evidence and is proof of the contents in original in view of Section 79 of the Evidence Act, r/w section 57(5) of the Registration Act 1908. Ex. PW 1/A is a certified copy of a document which has been issued by the registering authority and as per section 79 the court has to be presumed it to be genuine for the purposes of a particular fact which has been declared by law to be admissible in evidence and as per section 57(5) of the Registration Act, this certified copy is admissible in evidence for proving the contents of the original document. Hence, I find that the sale deed Ex. PW 1/A regarding the suit property has been proved by the plaintiff. The 26 plaintiff has also corroborated its ownership by way of the mutation certificates of M.C.D vide Ex. PW 6/1 and Ex. PW 6/2 and the survey report of the M.C.D which shows them to be the owner vide Ex. PW 6/3 and Ex. PW 6/3A. In view of my above discussion I find that original plaintiffs have proved their ownership of the suit property and thus issue No.1 in suit No. 509/2002/86 and issue no.3 of suit No. 510/02/88 is decided in favour of the plaintiffs."
25. Another limb of submissions in this regard is that property in suit purchased by Smt. Prem Kaur is not the property in suit as per sale deed Ex. PW 1/A as the sale deed reflect the same to be in Fateh Nagar Extn. This submission was rejected by Ld. Civil Judge as an after thought as no such plea was taken in the written statement by the defendant and as such submission beyond pleadings and evidence led by the defendant with that regard cannot be read in evidence. 27 Reference made to the plea taken in the written statement that suit land is situated in Village Tihar, Tehsil Mehrauli Distt. Delhi and as such this court has no jurisdiction to entertain the same is of no avail to the defendant as there was no dispute by the defendant to the plea of the plaintiffs that the property in suit is WZ-145 Shiv Nagar Extn, New Delhi and is not the same as of the sale deed or that property is a different one. Moreover, PW.6 in addition to Ex. PW 1/A further deposed that the area in which the suit property is situated was regularized by the government in the year 1960 and in the lay out plan the property was allotted Municipal No. WZ-145, Shiv Nagar Extn which was later on given Municipal No. WZ-678-C which was also mutated in the name of the children of Smt. Prem Kaur after her death in the year 1987 by the M.C.D for the purposes of house tax. He also proved mutation certificate, survey report as also discussed above. On 28 the face of the pleadings the submissions as made also before the Ld. Civil Judge were rightly rejected as an afterthought as the same were beyond pleadings and admitted position of the suit property is one and the same without any dispute that the property in sale deed and property in suit are two different properties.
26. Although impugned judgment has been challenged on the ground that Ld. Civil Judge ought to have held the partner of M/s Samrat Furniture Mart i.e appellant no.1 had become the owner by adverse possession as the plaintiffs/respondents never took possession of the suit property and the defendant had been in possession since 1970, but there is no challenge to the findings of Ld. Civil Judge that DW.3 who claimed to be one of the partner along with Sh. Amrik Singh did not utter a single word about the partnership in his examination-in-chief while DW.6 Sh. Amrik Singh deposed that defendant no.1 is a partnership 29 concern with defendant no.3. Further, Sh. Amrik Singh admitted that there is no written partnership between him and Satinder Singh. Similar was the deposition of Satinder Singh. I do not see any interference to be made in the findings of the Ld. Civil Judge who on appreciation of the evidence was of the view that "From the above evidence I find that the defendants have not produced any documentary evidence to show that defendant no.1 is a partnership concern. It appears to me that DW.3 in order to evade producing the accounts, has deposed, that he does not keep any accounts of his business. It is strange that no accounts are kept and the share of Sh. Amrik Singh is ascertained orally and paid to him after every 2- 3 months. It is, not as if, a landlord comes every two three months and collects his rent from the tenant but it a business which is allegedly being run in partnership and it is highly improbable 30 rather impossible to ascertain the amount of profit in absence of any accounts. In view of my above discussion I find that in absence of any corroborative evidence, the bald assertions of the defendants regarding the existence of the partnership cannot be relied upon. I accordingly find that there was no partnership in existence".
27. The admission of PW.2 during cross examination that defendant no.1 is a partnership firm is of no avail to the defendant as the defendant no.2 to 4 stated in their written statement that they have no concern of any kind with the disputed property. More so, amended written statement placed on record by the defendant no.1 categorically speaks of the fact that Sh. Amrik Singh was proprietor of defendant no.1 who was alleged to be the owner of the suit property by adverse possession. In fact the plea has been taken in contradiction as in reply to para 9 of the plaint Sh. 31 Amrik Singh was stated to be partner of defendant no.1 in adverse possession of the suit property for the last 20 years. This amended written statement was not at all signed by Sh. Amrik Singh either as a proprietor or as a partner of defendant no.1 as the same was filed under the signatures of Sh. Satinder Singh for defendant no.1 as partner thereof. It is also noticed that original written statement was filed by said Satinder Singh as special attorney of Amrik Singh which attorney has not at all been filed on record. Sh. Amrik Singh in his own affidavit filed in evidence stated that he started business as sole proprietor in the year 1970 after occupation of the suit land and continued the business after changing the name as M/s Surjeet & Co. from M/s Amrik Singh and Sons which was sole proprietorship concern. In the year 1980, the name was changed as M/s Samrat Furnitures as partnership firm with Satinder Singh who was stated 32 to have no right, title or interest in the suit property of the land thereunder. During cross examination he stated himself to be the sole proprietor of the defendant no.1. As such Sh. Amrik Singh failed to prove on record the plea of adverse possession in his own name or in the name of the partnership concern along with Sh. Satinder Singh. As already discussed, in fact there is no written statement by Amrik Singh after the amendment of the written statement which amendment was filed by only Satinder Singh as partner of defendant no.1.
28. The next point argued by learned counsel for appellants is that award of mesne profits/damages against the appellants are not in consonance with the definition of the mesne profits as defined under Section 2(2) of the CPC. He also referred to the statement of PW.6 to substantiate the deposition and the plea of the defendant that they had taken over possession of the 33 land when it was vacant and no damages can be awarded for the benefits the defendant availed of the construction carried out by them over the suit property. PW.6 who knew Amrik Singh since 1981 and who was in possession of the suit property since 1980 carrying on business in the name of M/s Samrat Furnitures has built up a temporary structure over the disputed area in his possession, as deposed by him during cross examination. It was also so deposed by defendant Amrik Singh in his affidavit who had shifted to Ludhiana in the year 1985 and do not understand the meaning of adverse possession who also denied the suggestion of receipt of any mesne profits being run in the suit property. The contradictions in the plea and the evidence on record do not at all prove adverse possession against the true owner of the suit property as understood and recognized in law. The findings by Ld. Civil Judge as under in para 38 does not require 34 any interference:
"From the above facts the conclusion that emerges is firstly, that Sh. Amrik Singh has never asserted before this court by filing his written statement that he has become owner of the suit property by way of adverse possession. Secondly, the assertion in the written statement filed on behalf of defendant no.1 by Sh. Satinder Singh, that Sh. Amrik Singh has become owner by adverse possession was without any instructions from him and also without any information given by him. In these circumstances the fact which is established is that Sh. Amrik Singh has not claimed his ownership by way of adverse possession before this court. Therefore, I decide issue no.4 of suit No. 509/2002/86 and issue No. 5 of suit No. 511/2002/2000 against the defendants and in favour of the plaintiffs."
However, the finding that the defendants being in unauthorised occupation of the suit property and are 35 liable to pay damages for such occupation and use of the suit property to the plaintiff @ Rs. 50/- p.m in suit No. 510/2002/1988 and Rs. 200/- p.m in suit No. 511/2002/2000 being market rental value of the premises although based on evidence but without consideration of the value of the suit land as the premises was admittedly constructed over the suit land by the defendants for which they are not liable to pay damages as per the definition of mesne profits which reads as under:
"Mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession."
29. It is however, common knowledge that premises 36 situated on the land too would have some market value for the purposes of mesne profits and certainly not less than the amount awarded by Ld. Civil Judge as rental value of the suit premises and as such and as argued by Learned counsel for respondent that no higher rental value has been assessed of the suit premises for the purposes of grant of damages, I do not wish to interfere with the findings of grant of damages except to the extent that damages granted be considered as damages for the use and occupation of land in suit by the defendants and not as mesne profits for use and occupation of the premises.
30. In view of my discussion as above and the findings as arrived by the Ld. Civil Judge and as referred to above, I do not see any ground to interfere with the same. The judgment is based on evidence which has been discussed in detail by the Ld. Civil Judge after considering all the legal aspects on the 37 facts as brought before him by way of evidence by the parties. Accordingly, I hold that the judgment does not suffer from any illegality, irregularity except to the extent of grant of damages, as discussed above, and as such the judgment and decree passed by Ld. Civil Judge is up held while the appeal stands dismissed as devoid of any merit and substance with costs throughout. Appeal file be consigned to record room and trial court record be sent back to the court concerned.
Announced in open Court Dated: 22.1.2007 (D.C. Anand) Addl. District Judge, Delhi.