Delhi District Court
Shamshad Ali vs Man Singh on 2 January, 2024
IN THE COURT OF SH. KAPIL KUMAR, ADJ-01, NORTH
EAST, KARKARDOOMA COURTS: DELHI
RCA DJ No. 31/2018
CNR No. DLNE01-001322-2018
Samshad Ali
S/o Sh. Rahimuddin
R/o K-21/48F, Gautam Vihar,
Delhi-110053 .....Appellant
Versus
1. Sh Mann Singh
S/o Sh. Roshan Lal
R/o K-591A, Gautam Vihar,
Gali no.3, 4th Pusta
Near MCD School, Delhi-110053.
2. Smt Santosh
W/o Sh. Ganga Ram
R/o 8353, Roshanara Road,
Subji Mandi, Delhi-110007 ....Respondents
Date of institution of the appeal : 04.04.2018
Date on which order was reserved : 09.12.2023
Date of decision : 02.01.2024
Digitally signed
by KAPIL
KAPIL KUMAR
Date:
KUMAR 2024.01.02
15:00:37
+0530
RCA DJ No. 31/2018 Page no. 1 of 20
JUDGMENT
1. The present appeal filed by the appellant/defendant no.2 in the original suit assailing the order/judgment and decree dated 23.02.2018 (hereinafter referred to as "the impugned judgment") passed by Ld. ACJ-cum-ARC-cum-CCJ, North-East, KKD Courts, Delhi. For the sake of convenience, parties will be referred by their original status, as per main suit. The appellant shall be referred as defendant no.2; respondent no.1 as plaintiff while respondent no.2 as defendant no.1.
2. Vide impugned order, the suit of the plaintiff was decreed.
Factual Matrix
3. The suit for the possession filed by the plaintiff namely Sh Man Singh against the defendants namely Smt Santosh (defendant no.1) and Samshad Ali (defendant no.2) alleging that he is the tenant under the tenancy of defendant no.1 for more then 30 years in respect of a shop situated in the property no. K- 21/49, Gautam Vihar Chowk, 4th Pusta, Delhi ('hereinafter as shop in question') wherein he was carrying a tailoring shop under the name and style of M/s Sri Man Tailors.
4. It is stated that rate of rent was Rs 250/- per month which was paid up to December 2012 but for some years the defendant no.1 not issuing the receipts. It is further stated that on 28.01.2012 the defendant no.1 and 2 tried to dispossess the plaintiff from the shop in question but could not do so due to the effective resistance. It is stated that the threat were extended to the plaintiff that he will be dispossessed from the shop in question forcibly.
Digitally
signed by
KAPIL KAPIL KUMAR
Date:
KUMAR 2024.01.02
15:00:43
RCA DJ No. 31/2018 Page no. 2 of 20 +0530
5. It is further stated that the plaintiff was taken to the police station and there one police official/IO, in collusion with the defendants, forcibly took the signatures of the plaintiff on some blank papers.
6. It is further stated by the plaintiff that one another suit was filed by him for the relief of permanent injunction against the defendants but after 3-4 days of receiving of the summons and during the pendency of that suit he was forcibly dispossessed from the shop in question and the shop was damaged.
7. It is stated that by the plaintiff that he came into the knowledge that defendant no.2 has purchased the property where the shop in question is situated from defendant no.1. It is stated by the plaintiff that he initiated criminal litigation also against the defendants.
8. The plaintiff prayed for the decree of the possession in his favour qua the shop in question.
Case of defendant no.1/respondent no.2.
9. The suit of the plaintiff was defended by the defendant no.1/respondent no.2 by filing the written statement stating that defendant no.1 has no concern with the suit property. It was denied by the defendant no.1 that the plaintiff was her tenant for more then 30 years or was running a tailoring shop from the shop in question. It was denied that the plaintiff was forcibly dispossessed from the shop in question.
Case of defendant no.2/appellant.
10. The defendant no.2 in the written statement raised the objection that he is the absolute owner of the shop in question Digitally signed by RCA DJ No. 31/2018 Page no. 3 of 20 KAPIL KAPIL Date:
KUMAR KUMAR 2024.01.02 15:00:48 +0530 and as of now no shop exist in the property which has been purchased by him. It is stated that shop has already been demolished by the orders of MCD vide ownership document registration no. 279.
11. It is further stated that the plaintiff voluntarily vacated the suit property after receiving Rs 1 Lac from defendant no.2 and in this regard he had signed a written note/undertaking on stamp papers of Rs 50/- in the presence of marginal witnesses on 28.01.2012.
12. It is further stated that on 28.1.2012 the plaintiff tried to take the possession of the suit property forcibly for which the matter was reported to the police and the plaintiff gave an undertaking voluntarily that he shall vacate the suit property and thereafter executed the above-said undertaking on stamp paper of Rs 50 on the evening on 28.01.2012. It is stated that the plaintiff tendered an apology in the police station. It is denied by defendant no.1 that plaintiff was the tenant in the suit property for more than 30 years or was running a tailoring shop in the name of Sri Man Tailor from the shop in question.
Findings of the Trial Court.
13. The Trial Court held that plaintiff did not surrender the possession of the shop in question voluntarily but was forcibly dispossessed from the shop in question which was his tenanted premises.
Grounds of Appeal/arguments of appellant.
14. It was argued that the findings of the Ld. Trial Court was incorrect as the plaintiff voluntarily surrendered the possession of RCA DJ No. 31/2018 Page no. 4 of 20 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2024.01.02 15:00:54 +0530 the shop to the defendant no.2/appellant after taking Rs 1 Lac.
15. It was argued that the documents as to the undertaking of the plaintiff qua his surrender of the shop in question voluntarily were prepared in the police station and as such it was not right on the part of the Ld. Trial Court to interpret those documents in some other manner or to give different meaning to those documents.
16. It was argued that the photographs as available on record speaks of volume that the shop was voluntarily surrendered by the plaintiff and as such the finding of the Ld. Trial Court is completely illegal.
17. It was argued that the plaintiff filed a suit for permanent injunction against the defendants earlier and as such the present suit was barred under the provision of under Order II Rule 2 CPC and this was not considered by the Ld. Trial Court.
18. It was further argued that the complaint was filed by the plaintiff to various authorities in which he stated that his signatures were forcibly taken on stamp paper of Rs 50/- by the police official but denied his signatures on those documents during cross-examination but the admission of the plaintiff by virtue of the complaint filed as to his signatures must be read against the plaintiff.
19. It was further argued that the only remedy with the plaintiff was to file a suit u/s 6 of Specific Relief Act which was required to be done within 6 months of the alleged dispossession but the present suit was filed with huge delay and as such the present suit was not maintainable.
Digitally
signed by
RCA DJ No. 31/2018 Page no. 5 of 20
KAPIL KAPIL KUMAR
Date:
KUMAR 2024.01.02
15:00:59
+0530
20. It was argued that the suit was without cause of action as the shop in question was already demolished by the MCD for widening of the road.
Arguments on behalf of respondent no.1/plaintiff.
21. It was argued that the Trial Court was completely justified in decreeing the suit of the plaintiff. It was argued that the judgment was passed on the basis of sound reasoning.
22. It was argued that the plaintiff has filed the present suit on the basis of his possessory title and as such the suit was maintainable as per section 5 of Specific Relief Act. It was argued that the present suit was not under 6 of Specific Relief Act and thus arguments on behalf of appellant on this aspect is misconceived.
23. It was further argued that previous suit which was filed by the plaintiff was for permanent injunction simplicitor against forcible dispossession and in these circumstances, the present suit seeking restoration of the possession is on different cause of action and was not barred as per Order II Rule 2 CPC, as claimed by the appellant.
24. It was argued that the police officials were acting as agents of the appellant in the entire matter and in the criminal complaint filed by the respondent no.1 herein the appellant and the investigating officer have been summoned as accused persons.
25. It was argued that the appellant took law in his hand in collusion with the police officials and the respondent no.1 who is a poor person was dispossessed from the shop from where he was earning for his family by stitching clothes.
Digitally signed by KAPIL RCA DJ No. 31/2018 Page no. 6 of 20 KAPIL KUMAR KUMAR Date: 2024.01.02 15:01:04 +0530
26. It was argued that each and every document has been dealt by the Trial Court in detail and as such the present appeal is liable to be dismissed.
Arguments on behalf of respondent no.2/defendant no.1.
27. It was argued that respondent no.2 has nothing to do with the shop in question as the property was sold to the appellant by the respondent no.2.
28. I have heard arguments advanced by counsels of both the parties. The written argument/synopsis filed have been considered carefully. In view of the the judgment of Hon'ble Apex Court titled as Sabir Hussain (Dead) through LRs and & ors vs Sayed Mohd Hassan (Dead) through LRs & ors Civil Appeal no. 5049/2009 decided on 06.11.2023, this court being the first appellant court required to record its findings dealing with all issues of law as well as facts and with the evidence, oral as well as documentary, led by the parties, while deciding the present appeal.
29. After hearing arguments at length and carefully perusing the records the following points of determination arises in the present appeal:-
a) Whether the suit was barred as per Order II Rule 2 CPC?
b) Whether the suit was barred as not filed within 6 months of the alleged dispossession, in view of Section 6 of Specific Relief Act?
c) Whether the respondent no.1 voluntarily surrendered the possession of the shop to the appellant after taking Rs 1 Lac? and
d) Whether the respondent no.1 was forcibly dispossessed from the shop in question?Digitally signed
RCA DJ No. 31/2018 Page no. 7 of 20 by KAPIL KAPIL KUMAR KUMAR Date:
2024.01.02 15:01:10 +0530
30. The above-mentioned points of determination are required to be dealt one by one and during that process only the evidences led by the parties during the trial will also be appreciated.
Bar of Order II Rule 2 CPC
31. The certified copies of previous suit filed by the plaintiff against the defendant are available in the Trial Court record. That civil suit is the suit no. 35/2012 titled as 'Sri Man Singh vs Smt Santosh & Ors'. That suit was for permanent injunction in which the plaintiff declaring himself as a tenant qua the shop in question under the tenancy of defendant no.1, prayed for permanent injunction against forcible dispossession.
32. In that suit the plaintiff had given the statement on 15.03.2012 that since he has been forcibly dispossessed from the shop in question during the pendency of the suit and as such he wishes to withdraw the suit. The counsel for defendant no.2 gave the statement in that suit that the plaintiff handed over the vacant and peaceful possession of the shop to the defendant no.2.
33. Considering the statement of the plaintiff that he has been dispossessed from the shop in question the suit of the plaintiff was dismissed as withdrawn.
34. The present suit is a suit for restoration of the possession filed by the plaintiff against the defendants. The present suit is on complete different cause of action. In the present suit the plaintiff is alleging forcible dispossession from the shop in question and on the basis of his possessory title he is praying for restoration of the possession.
Digitally signed by KAPIL KAPIL KUMAR
KUMAR Date:
2024.01.02
RCA DJ No. 31/2018 Page no. 8 of 20 15:01:16 +0530
35. The relief as claimed by the plaintiff in the present suit was not available to him when the initial suit for permanent injunction was filed by the plaintiff. In these circumstances it cannot be said the plaintiff had relinquished any part of his claim when the earlier suit was filed. The cause of action to file the present suit arose after the filing of the initial suit and as such there was no bar of Order II Rule 2 CPC in the present suit.
Maintainability of the suit.
36. This issue was vehemently pressed during the arguments on the present appeal. It was argued that the plaintiff being a tenant had only one option for the relief of restoration of the possession i.e. to file the suit within 6 months of the alleged illegal dispossession as per section 6 of Specific Relief Act. It was argued that since the present suit has not been filed as per section 6 of Specific Relief Act and within 6 months of the alleged illegal dispossession, the suit was liable to be dismissed on this ground only.
37. Per Contra, Ld Counsel for respondent no.1 argued that the present suit is under Section 5 of Specific Relief Act on the basis of possessory title of the plaintiff.
38. Though the present issue was not raised before the Trial Court yet the same is required to be dealt with being a matter on law. It will be appropriate to refer Section 5 and 6 of Specific Relief Act 1963 at this stage for ready reference:
"5. Recovery of specific immovable property-a person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908, (5 of 1908)
6.Suit by person dispossessed immovable property Digitally signed RCA DJ No. 31/2018 Page no. 9 of 20 by KAPIL KAPIL KUMAR KUMAR Date:
2024.01.02 15:01:22 +0530 (1) if any person is dispossessed without his consent of immovable property otherwise then in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may set up in such suit;
2) no suit under this section shall brought-
a) after the expiry of six months from the date of dispossession; or
b) against the government;
c) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed;
d) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof".
39. The plaintiff claimed that he was illegally dispossessed from the shop in question on 28.01.2012. The present suit was filed on 17.12.2012 i.e. after 6 months of the alleged illegal dispossession. Section 6 of Specific Relief Act empowers a person to file the suit on the strength of possession only within 6 months of the alleged illegal dispossession. However Section 5 of Specific Relief Act empowers a person to file a suit for the possession on the basis of his title.
40. The word 'title' as appearing in section 5 of Specific Relief Act is required to be dealt here. The Ld Counsel for the appellant argued that title only means the ownership of a person and not his tenancy and as such the plaintiff who was admittedly tenant in the suit property was not empowered to file the suit under Section 5 of Specific Relief Act as he did not have any title.
Digitally signed by KAPILRCA DJ No. 31/2018 Page no. 10 of 20
KAPIL KUMAR
KUMAR Date:
2024.01.02
15:01:29 +0530
41. The Ld Counsel for the appellant is not correct by submitting that the suit on the basis of title to the property, which has been saved by section 6 (4) of Specific Relief Act is only the ownership on the basis of which the suit under Section 5 of the Specific Relief Act is maintainable. The word 'title' which has been used in Section 6 (4) of SRA is not only the ownership of a person. The right of a person to be in the possession of an immovable property which gives him the capacity to maintain his possession and to save the possession is what it means by the title. It is not necessary that only the owner can file the suit u/s 5 of the Specific Relief Act. A person having a capacity to be in the legal possession of the immovable property and his capacity to save that possession is what required and saved by section 6 (4)/5 of Specific Relief Act.
42. In the case in hand though the plaintiff was not the owner of the shop in question but admittedly tenant under defendant no.1 qua the shop in question. When the property in which the shop was situated was purchased by defendant no.2 from defendant no.1, the plaintiff had the similar rights against defendant no.2 qua the shop in which he had against the defendant no.1 and one of that right was against illegal forcible dispossession from the shop in question and this right was giving the capacity to the plaintiff to maintain the suit under Section of 5 Specific Relief Act also on the basis of his possessory title.
43. The strength on the above-mentioned aspect as to the possessory title of the plaintiff qua the shop in question and his capacity to maintain the suit under Section 5 of Specific Relief Act could be drawn from judgment titled as Somnath vs Raju Digitally signed RCA DJ No. 31/2018 Page no. 11 of 20 KAPIL by KAPIL KUMAR KUMAR Date: 2024.01.02 15:01:36 +0530 AIR 1970 SC 846 wherein it was held by Hon'ble Apex Court that mere 'possessory title' is good enough to maintain an action under Section 5 of Specific Relief Act.
44. In the judgment titled as Poona Ram vs Moti Ram (Dead) through Legal Heirs and Ors (2019) 11 SCC 309 it was held that the settled, continuous, effective, open, undisturbed possession with animus possidendi, if proved, then by virtue of Article 64 of Limitation Act 1963, the suit of possession of immovable property based upon previous possession and not on title can be brought within 12 years of the date of dispossession and such suit is known in law as a suit based on possessory title distinguishable from proprietory title. In the case in hand the plaintiff is claiming his long settled possession being a tenant of defendant no.1 who was allegedly illegally dispossessed by defendant no.2. In these circumstances the present suit of the plaintiff is a suit on possessory title and is within time limit. On this aspect reliance could be placed upon judgment titled as Nair Service Society Ltd vs KC Alexander AIR 1968 SC 1165 and Rame Gowda vs M. Varadappa Naidu (2004) 1SCC 769.
45. In view of the same, the contention of Ld Counsel for appellant that suit under Section 5 of Specific Relief Act was not maintainable is completely misconceived. The suit was maintainable as filed before the Trial Court.
Surrender of possession by the plaintiff voluntarily or forcible dispossession of the plaintiff.
46. The plaintiff stepped into the witness box and deposed that he was the tenant in the shop in question for 30 years. The defendant no.1 in his written statement denied that the plaintiff was a tenant in the suit property for more than 30 years but she RCA DJ No. 31/2018 Page no. 12 of 20 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2024.01.02 15:01:42 +0530 failed to cross-examine the plaintiff or to appear in the witness box to contradict the testimony of the plaintiff on this aspect. The avernment of the plaintiff that he is tenant for more than 30 years qua the shop in question remained uncontroverted as defendant no.1 is concerned.
47. The defendant no.2 in his written statement also denied that the plaintiff is a tenant in the shop in question for more than 30 years but admitted that the plaintiff was the tenant in the suit property under the tenancy of defendant no.1 on 28.01.2012 i.e. the date where the plaintiff allegedly handed over the possession of the shop to defendant no.2 voluntarily. This admission of defendant no.2 that the plaintiff was the tenant under defendant no.1 till 28.01.2012 reveals that the capacity of the plaintiff as tenant in the shop in question on or before 28.01.2012.
48. When the above-mentioned admission of defendant no.2 as to the tenancy of the plaintiff under the defendant no.1 till 28.01.2012 be read with the fact that the plaintiff was not cross- examined by the defendant no.1 as to his contention that he is tenant for more than 30 years proves on record that the plaintiff was a tenant in the shop in question for a long period of time and this fact gives the capacity to the plaintiff to save his possession qua the shop against forcible illegal dispossession.
49. Accordingly, the long possession of the plaintiff qua the shop in question in the capacity of tenant as on 28.01.2012 stands proved on record and this provides possessory title to the plaintiff.
50. Now it is to be appreciated as to whether the plaintiff himself surrendered the possession of the shop in question in RCA DJ No. 31/2018 Page no. 13 of 20 KAPIL Digitally signed by KAPIL KUMAR KUMAR Date: 2024.01.02 15:01:47 +0530 favour of defendant no.2 voluntarily or he was forcibly dispossessed from the suit property. As per plaintiff, he was forcibly dispossessed by the defendants in the month of February 2012 but it has been claimed by defendant no.2 on 28.01.2012 the plaintiff took Rs 1 Lac from him and handed over peaceful possession of the shop to him by executing a written note as to the receiving of Rs 1 Lac from defendant no.2 as a consideration of vacating a shop. The plaintiff denied the factum of receiving of Rs 1 Lac from defendant no.2 or handing over the possession of the suit property to defendant no.2.
51. During the course of arguments on the present appeal Ld Counsel for appellant/ defendant no.2 took this court through document Ex.PW1/D1 to Ex.PW1/D3 and photographs Mark P1 to P8 thereby arguing that plaintiff voluntarily vacated the suit property. It was argued that when the defendant no.2 purchased the suit property from defendant no.1 he entered into an agreement with the plaintiff for the possession of the shop in question.
52. The above-mentioned three documents Ex.PW1/D1 to Ex.PW1/D3 are crucial documents to the present case and are required to be dealt minutely.
53. Ex.PW1/D1 is a document on stamp paper of Rs 50/- allegedly bearing the signatures of the plaintiff. This document reads that the plaintiff voluntarily surrendered the possession of the shop after having received Rs 1 Lac. The signatures on this document has been specifically denied by the plaintiff in the cross-examination. He denied the suggestion that he vacated the shop peacefully and voluntarily after taking Rs 1 Lac from Digitally signed RCA DJ No. 31/2018 Page no. 14 of 20 by KAPIL KAPIL KUMAR KUMAR Date:
2024.01.02 15:01:56 +0530 defendants. It is not so that the plaintiff denied his signatures on Ex.PW1/D1 just once. In the cross-examination the plaintiff denied his signature on Ex.PW1/D1 three times.
54. Taking a pause at this juncture and coming to the another document Ex.PW1/D2. The plaintiff deposed that he had signed this document under the pressure of police officials whereas the stand of the defendant no.2 is that this document signed by the plaintiff with his free consent. This document has been vehemently relied by the defendant no.2.
55. The perusal of document Ex.PW1/2 reveals that the plaintiff and one Sashi Bhushan were trying to repair their shop which was objected by defendant no.2 and thereafter it was agreed between the plaintiff and defendant no.2 that defendant no.2 would repair the shop in question at the expense of the plaintiff. There is no reference in Ex.PW1/D2 as to any settlement arrived between the plaintiff and defendant no.2 in the morning time of that day only. The perusal of Ex.PW1/D2 is against the stand of defendant no.2 that the plaintiff was trying to take forcible possession of the property. If the plaintiff had already surrendered the possession of the shop in the favour of defendant no.2 voluntarily in the morning of same day only then why the defendant no.2 would repair the shop and the expenses of the same will be borne by the plaintiff?
56. If the plaintiff has to borne the expenses of the repair of the shop in question then impliedly the plaintiff was having interest in the shop in question till the time of execution of Ex.PW1/D2. This Ex.PW1/D2 destroys the genuineness of Ex.PW1/D1. This is beyond comprehension as to why a person bear the expenses of Digitally signed RCA DJ No. 31/2018 Page no. 15 of 20 by KAPIL KAPIL KUMAR KUMAR Date:
2024.01.02 15:02:01 +0530 a repair of a property which he already surrendered in favour of some other person. However this fact speaks of volume that the plaintiff was exercising his rights by virtue of his long tenancy in the shop when Ex.PW1/D2 was got written and at the risk of repetition the document Ex.PW1/D2 is denting the credibility of Ex.PW1/D1 badly.
57. The contents of Ex.PW1/D2 turns out to be fatal to the avernments of defendant no.2 that the plaintiff was called by the police as he was trying to forcibly take the possession of the shop in question which was voluntarily vacated by the plaintiff in the morning of the same day. If the plaintiff was taking forcible possession then why the defendant no.2 agreed to repair the shop at the expense of the plaintiff at the time of execution of Ex.PW1/D2. This is unanswered question but hitting at the roots of defence take by the defendant no.2 in the suit.
58. The contents of Ex.PW1/D2 are in direct contradiction on the material aspects of the defence taken by the defendant no.2. The contents of Ex.PW1/D2 speaks of volume that the plaintiff was retaining his tenancy rights in the shop in question and not surrendered his tenancy rights after allegedly taking Rs 1 Lac from the defendant no.2. The Ex.PW1/D2, which has been relied upon by the defendant no.2 heavily, destroys the evidentiary value of Ex.PW1/D1 which mentions that the plaintiff surrendered the possession of the shop to defendant no.2 after having Rs 1 Lac from defendant no.2.
59. In these circumstances, this court is of the considered opinion that it is proved on record that Ex.PW1/D1 is not a document worthy of credit and thus it cannot be declared on the Digitally signed by KAPIL RCA DJ No. 31/2018 Page no. 16 of 20 KAPIL KUMAR KUMAR Date:
2024.01.02 15:02:08 +0530 basis of Ex.PW1/D1 that the plaintiff surrendered the tenancy in the favour of defendant no.2 or the plaintiff received Rs 1 Lac from defendant no.2 as a consideration of surrender of tenancy rights/possessory right in the favour of defendant no.2.
60. Moreover, the recital of Ex.PW1/D2 makes the avernment of defendant no.2 that the plaintiff was taking the forcible possession of the shop false. The manner in which the police officials have been involved in the present matter by the defendant no.2 raises cloud upon the intentions of the defendant no.2. The contents of Ex.PW1/D2 further raises a poser as to why there is no avernment made in the written statement by the defendant no.2 that the plaintiff was trying to repair the shop in question on his own rather the defendant no.2 mentioned falsely that plaintiff was trying to take the possession of the shop forcibly.
61. This is beyond comprehension as to what jurisdiction did the police have to get the alleged compromise effected between the parties in the police station. There was no business with the investigating officer to get the compromise recorded and to close the matter. The manner in which Ex.PW1/D1 to Ex.PW1/D3 were executed raises grave amount of doubt in the conduct of the police during the inquiry/investigation qua the complaints filed in the present matter.
62. This is also important to mention here that in the written statement it has not been mentioned by the defendant no.2 that the suit property was demolished on 28.01.2012. In the cross- examination defendant no.2 deposed that when he purchase the property on 28.01.2012 there was one wall in the same. DW2 RCA DJ No. 31/2018 Page no. 17 of 20 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2024.01.02 15:02:14 +0530 deposed in the cross-examination that suit property was partially demolished by MCD for widening of the road and plaintiff was repairing the shop which was objected by the defendant no.2 and the police was called. This again proves the defence of defendant no.2 that the police was called when the plaintiff was forcibly taking possession of the shop as false one. If the plaintiff was repairing the shop which was in his possession but partially damaged by the MCD in widening the road then the question of forcibly taking of the possession of the shop does not arise.
63. The facts as came up on record by virtue of document Ex.PW1/D2, which has been relied heavily by defendant no.2 during the trial, and the facts which came up on record during the cross-examination of defence witnesses turns out to be fatal to the defence of defendant no.2.
64. The photographs which came up on record during the trial have been perused. As per these photographs the plaintiff along with his associates were lifting articles from the shop and were loading the same in one tempo. There is no evidence on record to prove that these photographs were taken on 28.01.2012 only. These photographs were also not proved on record as per law.
65. However, if the photographs as available on record be considered then also it cannot be said that these photographs are the proof that the plaintiff surrendered the possession of the shop in the favour of defendant no.2 voluntarily. It is on record that the suit property was partially demolished by the MCD for widening of the road. In all circumstances there was the possibility that the plaintiff was removing articles himself to prevent damage of articles lying in shop. It is beyond comprehension as to how the Digitally signed RCA DJ No. 31/2018 Page no. 18 of 20 KAPIL by KAPIL KUMAR KUMAR Date: 2024.01.02 15:02:20 +0530 defendant no.2 is reading these photographs as the evidence of voluntarily surrender of the tenancy by the plaintiff in his favour.
66. The plaintiff has relied various complaints made to the police to the effect that he was forcibly dispossessed from the shop and his shop was demolished. As per the defendant no.2 the suit property was demolished by the MCD. It was the onus of defendant no.2 to prove that the suit property was demolished by MCD. There is no order of MCD on record as to the demolition of the suit property.
67. The defendant no.2 failed to prove on record that the plaintiff voluntarily surrender his tenancy in his favour or the suit property i.e. shop was demolished by the MCD. However the plaintiff successfully discharged his onus that he was the tenant in the shop in question and he was forcibly dispossessed from his tenanted shop.
68. In view of the above-discussion, Ld. Trial Court was absolutely right in coming to the conclusion that plaintiff was forcibly dispossessed from his tenanted shop by the defendant no.2 and plaintiff is entitled to repossess the shop in question in the capacity of tenant.
69. Accordingly, the Ld. Trial Court was within jurisdiction in decreeing the suit of the plaintiff and directing that the possession of the suit property be restored to the plaintiff. The Trial Court was justified in giving directions to the defendants to construct the shop and to hand over the possession of the same to the plaintiff. The Trial Court clarified that the shop be constructed in accordance with law after taking due permission from the concerned authorities as per law.
Digitally signed by KAPILRCA DJ No. 31/2018 Page no. 19 of 20 KAPIL KUMAR KUMAR Date:
2024.01.02 15:02:26 +0530
70. In view of above-discussion there is no illegality or infirmity in the judgment dated 23.02.2018 passed by the Ld. Trial Court. Accordingly, the the present appeal is hereby dismissed.
71. Copy of this order be sent to the Ld. Trial Court alongwith trial court record. File of the present appeal be consigned to record room.
Digitally signed by KAPILKAPIL KUMAR KUMAR Date:
2024.01.02 15:02:31 +0530 Typed to the direct dictation and (Kapil Kumar) announced in the open court ADJ-01, North-East on this 02nd January 2024 KKD Courts, Delhi RCA DJ No. 31/2018 Page no. 20 of 20