Delhi District Court
All R/O H. No. A vs Sh. Anand Kumar on 21 February, 2015
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
RCA No. 115/14
Case I.D. Number : 02402C0363572014
IN THE MATTER OF :
(1) Sh. Pramod Kumar
S/o Sh. Bangali Baboo
R/o H. No. R181, Gali No. 10,
Panchal Vihar, Shiv Vihar
Delhi110094.
(2) Sh. Mahak Singh( Since Deceased)
Through LR's
(1) Smt. Kamlesh Solanki( Wife)
(2) Sh. Mandeep Solanki( Son)
(3) Sh. Vijay Solanki( Son).
All R/o H. No. A11, 33 ft Road,
Panchal Vihar, Shiv Vihar,
Karawal Nagar, Delhi110094 .......Appellants
VERSUS
Sh. Anand Kumar
S/o Sh. Lajja Ram
R/o H. No. B330, Gali No. 5,
Prem Vihar, Shiv Vihar,
Karawal Nagar, Delhi110094. ........ Respondent
RCA No. 115/14 page 1 of 17
Pramod Kumar & Ors. Vs. Anand Kumar
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
Date of Institution of Appeal : 18.11.2014
Arguments heard on : 21.02.2015
Date of Judgment/Order : 21.02.2015
Decision : Appeal dismissed with costs
J U D G M E N T
1. The present appeal impugns the judgment and decree dated 10.10.2014 passed by Ld. JSCC/ASCJ/Guardian Judge/ (NE), Karkardooma Courts, Delhi in suit No. 249/09 whereby the suit of the plaintiff/respondent filed for recovery of possession, declaration and permanent injunction in respect of property bearing No. R106, Gali No. 8, Shiv Vihar, PhaseII, Karawal Nagar, Delhi 94 and Old No. Khasra No. 20/7, property No. R 56A & B and 88, Shiv Vihar, Phase II, Karawal Nagar, Delhi area measuring 36 sq. yards ( hereinafter referred as the suit property) as shown in red color in the site plan has been decreed.
( Parties are referred as per their status before the Ld. Trial Court).
2. The brief and relevant facts in the background of which the present suit was filed by the appellants who are the defendants in the original suit is reproduced from the impugned judgment as follows: (I) The case of the plaintiff is that on 05.01.2000 he got executed an Agreement to Sell, GPA, Receipt and Affidavit duly notarized and obtained the physical possession of the suit property as well as the entire chain of RCA No. 115/14 page 2 of 17 Pramod Kumar & Ors. Vs. Anand Kumar Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. previous documents and on 03.04.2002 in furtherance of the agreement to sell dt. 05.01.2000 the documents were got registered by him and he had been enjoying his physical possession without any interruption by the defendants. Plaintiff inducted defendant no. 5 as a tenant but when he came to know that defendant no. 3 is of habit to encroach upon the land on 15.10.2002 he evicted the defendant no. 5. On 16.10.2002 plaintiff came to know that defendant no. 5 in collusion with other defendants planning to grab his property. On 17.10.2002 a PCR call was made and on 21.10.2002 a complaint to Commissioner of Police incorporating the facts was made by plaintiff, but no action was taken. Thereafter, a suit for permanent injunction was filed against defendant no. 3 to 7 in which the defendants were proceeded exparte. However, the same was declined on technical grounds in view of section 41 (h) of Specific Relief Act. On 14.12.2002 a complaint to SHO, P.S. Gokalpuri was made about encroachment by defendant no. 2 to 5 and the same was not properly dealt with. Thereafter, an application under Order 39 Rule 2 - A CPC was filed by plaintiff wherein an order dated 11.10.2006 was passed wherein parties were directed status quo and interpretation was drawn by the court regarding creation of third party interest and the same was disposed off in view thereof. On 09.05.2009 plaintiff came to know that defendant no. 2 had been inducted as a tenant by defendant no. 1 and when plaintiff approached defendant no. 1 he disclosed that he is the owner of suit RCA No. 115/14 page 3 of 17 Pramod Kumar & Ors. Vs. Anand Kumar Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. property by showing documents executed by Ajit and Mahak Singh in his favour. Thereafter, all the defendants started giving threats for creating third party interest in the suit property. Hence, the present suit. (II) Defendants have contested the present suit by filing their written statements. The case of the defendant no. 1 Sh. Pramod Kumar is that he is the owner of the suit property by virtue of agreement dated 16.10.2002 executed by defendant no. 4, 6 and 7 in his favour and the physical possession was also handed over to him and he inducted the defendant no. 2 as tenant in the said property. It is stated that plaintiff was never handed over the possession of the suit property as the same was in possession of the defendant since 16.10.2002. It is further stated that plaintiff has not come to court with clean hands and has suppressed the real and material facts, hence the suit of the plaintiff is liable to be dismissed.
(III) Written statement was also filed by defendant no. 2. However during the pendency of the proceedings he expired and vide order dated 17.04.2013 the LRs of defendant no. 2 were brought on record. The case of the defendant no. 2 Raju is that in the month of September, 2005 defendant no. 1 had borrowed a sum of Rs.50,000/ as loan from Meera Devi i.e. mother of defendant no. 2 with the promise that the said amount would be refunded by him to the mother of defendant no. 2 at the time of marriage of her grand daughter i.e. the niece of defendant no. 2 as the RCA No. 115/14 page 4 of 17 Pramod Kumar & Ors. Vs. Anand Kumar Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. parents of the niece had already died and at the time of taking the above said loan defendant no. 1 had also given the suit property to defendant no. 2 on monthly rent of Rs.400/ without the facilities of electricity and water and since then defendant no. 2 has been residing in the suit property. It is further stated that an eviction petition was filed by defendant no. 1 against defendant no. 2 and thereafter, the rent was continuously deposited in the court and defendant no. 2 had neither given any threat nor ever tried to create third party interest over the suit property as he was a tenant of defendant no. 1.
(IV) The case of the defendant no. 3 Sh. Yogesh Kumar is that the suit property was purchased by him by virtue of registered GPA, Will, and Agreement to Sell, Receipt and affidavit dt. 09.12.1999 from Rajbir Singh who is the attorney of Sh. Ajit Singh and he had sold the same on 05.01.2000 by notarized GPA to the plaintiff and handed over the documents as well as possession to Anand Kumar.
(V) The case of the defendant no. 4 Sh. Ajit Singh is that he is the owner of the suit property and he is in physical possession of the suit property. It is further stated that plaintiff in collusion with defendant no. 1 to 3 and 5 to 7 with mala fide intention has filed the present suit in order to grab the suit property.
(VI) The case of the defendant no. 5 Sh. Rajbir Singh is that the suit property was purchased by him on 15.05.1999 from one Ajit and he had RCA No. 115/14 page 5 of 17 Pramod Kumar & Ors. Vs. Anand Kumar Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. mortgaged the same with one Sh. Yogesh for a sum of Rs.20,000/ and defendant no. 3 and 4 had forcibly took the signatures of the plaintiff on some blank papers and he had canceled the GPA on 09.10.2002. Defendant no. 6 and 7 were proceeded exparte vide order dated 15.07.2009 though they subsequently joined the proceedings. However, no written statement was filed by defendant no. 6 and 7. Defendant no. 7 expired during the pendency of the suit and his LRs were brought on record vide order dated 29.10.2013.
(VII) Replication was filed by the plaintiff to the written statements of defendant no. 1 to 5 wherein the contents of the written statements are denied and the contents of the plaint are reiterated.
3. From the pleadings of the parties, the following issues were framed by Ld. Trial Court vide Order dated 12/10/2009:
(i) Whether the plaintiff is entitled for decree of declaration as prayed in the suit? OPP.
(ii) Whether the plaintiff is entitled for decree of possession as prayed in the suit? OPP
(iii) Whether the plaintiff is entitled for permanent injunction as prayed in the suit? OPP.
(iv) Relief, if any.
4. The appellants have preferred the instant appeal on the ground that the impugned judgment and decree dated 10.10.2014 is not sustainable in RCA No. 115/14 page 6 of 17 Pramod Kumar & Ors. Vs. Anand Kumar Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. law and facts and is passed without application of judicial mind. It is further contended that the impugned judgment and decree is not passed on the basis of the admitted and proved facts and the judgment suffers from illegality and infirmity. As mentioned the Ld. Trial Court failed to appreciate the correct facts and impugned judgment and decree liable to be set aside. As contended, the ownership of the plaintiff was disputed by the defendant in the earlier suit filed by him for permanent injunction along with his possession. The plaintiff did not file the suit for declaration and the suit of the plaintiff is barred by limitation accordingly. As contended the suit of the plaintiff is further barred by Order 2 Rule 2 CPC as plaintiff has not prayed for the relief of declaration in the earlier suit. The suit of the plaintiff was filed on the same cause of action as even at the time of filing of the earlier suit by the plaintiff on 11.11.2002, the plaintiff was aware that the suit property had been handed over by defendant No. 4, 6 and 7. As further contended, the Ld. Trial Court failed to appreciate the facts in proper perspective and reached to wrong conclusion; the Ld. Trial Judge has not applied his mind and disposed off the suit without following due process of law and considering the relevant aspects. This appeal is filed praying to set aside the impugned judgment and decree.
Along with appeal an application U/O 41 Rule 27 CPC was filed by the appellants praying for filing some relevant documents regarding the litigation between appellant No. 1 and defendant No. 2 before Ld. ARC.
RCA No. 115/14 page 7 of 17 Pramod Kumar & Ors. Vs. Anand Kumar Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
5. Reply/written submissions to the appeal was filed by the respondent whereby denying the averments in the appeal, it is contended that the appellants have no right, title or interest in the suit property and appeal be dismissed with cost.
6. I have heard Ld. Counsel for the parties and considered their respective submissions. I have also gone through the Trial Court records and considered the relevant provisions of law.
7. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiffs and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for partition, this suit is to be decided on the basis of preponderance of probabilities. As held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, "A civil case is decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of RCA No. 115/14 page 8 of 17 Pramod Kumar & Ors. Vs. Anand Kumar Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
8. Section 101 of the Evidence Act, 1872 defines " burden of proof"
and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of RCA No. 115/14 page 9 of 17 Pramod Kumar & Ors. Vs. Anand Kumar Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. pleadings enforce at the time they are deemed to have admitted by their pleadings. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn.
9. The brief and relevant facts for filing of this suit and issues framed has been mentioned above. Along with the appeal, an application u/o 41 Rule 27 CPC has been filed on behalf of appellants for allowing additional evidence and filing documents. Nowhere in the application it is mentioned that why the appellants/ plaintiffs did not file the documents before Ld. Trial Court. These documents were not even discussed / explained in the pleading and evidence of defendants/ appellants. The learned counsel for the respondent opposed this application contending that appellants cannot be permitted to lead additional evidence as defendants / appellants failed to assign any reason for the same.
The contentions of the learned counsel for appellants in support of this application itself appears to be contrary and appellants failed to assign any reason for not making such request at the relevant stage. As held in AIR 2001 SC 2802, AIR 2005 P& H 42 and (2001) 7 SCC 503 it is trite to observe that U/o XLI, rule 27 additional evidence could be adduced in one of the three situations, namely, (a) whether the trial court has illegally refused the evidence although it ought to have been permitted;(b) whether the evidence sought to the adduced by the party was not available to it RCA No. 115/14 page 10 of 17 Pramod Kumar & Ors. Vs. Anand Kumar Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. despite the exercise of due diligence;(c) whether additional evidence was necessary in order to enable the Appellate court to pronounce the judgment or any other substantial cause of similar nature. It is equally well settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case.
As further held in AIR 2005 MAD 431, it is not open to any party at the stage of appeal to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirement of order 41 Rule 27 of CPC. Additional evidence cannot be permitted at the appellate stage in order to enable other party to remove certain lacunae present in that case.
10. As held in (2012) 8 SCC 148, the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. Order 41Rule 27 CPC enables appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled as apprised, to the admission of such evidence. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. As further held, the appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to RCA No. 115/14 page 11 of 17 Pramod Kumar & Ors. Vs. Anand Kumar Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. raise a new point in appeal. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of the satisfactory reasons for the non production of the evidence in the trial court, additional evidence should not be admitted in appeal.
11. Keeping in view of aforesaid discussion, this court of the considered opinion that there is no basis for allowing this application u/o 41 Rule 27 CPC filed by appellant. This court does not find any substance and the application is therefore dismissed.
12. The evidence of the parties led before Ld. Trial Court was somehow on the similar lines as contended in the pleadings. The plaintiffs has filed this suit for possession against the defendants claiming to be the owner of the suit property have been purchased the same. The defendant No. 1 denied the ownership of the plaintiff but failed to produce any document in this respect and discharge the onus regarding ownership in his favour. The Ld. Trial Judge framed the issues regarding declaration which was disposed in favour of the plaintiff and passed decree of possession and permanent injunction in his favour. The onus to prove all the issues was upon the plaintiffs who claimed the ownership on the basis of documents which were duly proved during his evidence. In nut shell the testimony of the plaintiff remained unimpeached and uncontroverted. The findings of the Ld. Trial Judge is accordingly sustainable and based on RCA No. 115/14 page 12 of 17 Pramod Kumar & Ors. Vs. Anand Kumar Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. correct appreciation of facts, evidence and pleadings. The findings of the Ld. Trial Judge does not suffer from any infirmity or illegality nor warrants for any interference. The Ld. Trial Judge was correct in decreeing the suit of the plaintiffs for declaration, possession and permanent injunction as prayed in the suit.
13. This court is guided in view of the judgment of Hon'ble Supreme Court in Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC) in this respect. As held, GPA , Agreement to Sell, Will and receipt would not confer ownership rights in respect of immovable property. Hon'ble Supreme court vide order dt. 15.05.09 reported as Suraj Lamps & Industries V/s State of Haryana, 2009(7) SCC (366) referred illaffects of GPA sells or sell agreement/ GPA/ will transfer holding that there cannot be sell by execution of power of attorney nor there can be transfer by execution on agreement to sell and power of attorney and will. It was further reiterated that immovable property can be legally and lawfully transferred/ conveyed only by a registered deed of conveyance. Transaction of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transaction as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized RCA No. 115/14 page 13 of 17 Pramod Kumar & Ors. Vs. Anand Kumar Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. as deeds of title, except to the limited extent of Section 53A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transaction known as GPA sales.
14. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Hon'ble Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance ( para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872( para
13) and devolution of interest pursuant to a will( para 14).The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney.
RCA No. 115/14 page 14 of 17 Pramod Kumar & Ors. Vs. Anand Kumar Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
15. Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will.
In the facts of this case, neither the provision of section 53 A of the transfer of property act nor the provision of section 202 of the contract act is applicable in favour of the defendants. In fact there is nothing on record either produced/ proved by the defendants/ appellants regarding the claim of the ownership except the bald averments.
16. This Court is conscious of the judgment of the Hon'ble High Court in the case of Sh. Ramesh Chand Vs. Suresh Chand reported in 188 (2012) DLT 538 in which the judgment in the case of Suraj Lamps (supra) was interpreted. In the case of Ramesh Chand (supra) the Hon'ble High Court was pleased to hold that right to possess immovable property arises not only from a complete ownership right but also by having a better title.
In the present case, defendant No. 1/appellant has claimed title on the basis of merely Agreement to Sell but the execution of the documents not proved. Even if these documents were executed in favour of the appellants, the same would not create any title in his favour. Moreover, the plaintiffs proved that he is the owner of the suit property and findings of RCA No. 115/14 page 15 of 17 Pramod Kumar & Ors. Vs. Anand Kumar Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. Ld. Trial Judge appears to be correct appreciation of facts as per the records.
17. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiffs creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title.
The present case being a civil one, the plaintiffs could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion RCA No. 115/14 page 16 of 17 Pramod Kumar & Ors. Vs. Anand Kumar Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
of this Court the plaintiffs has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiffs had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
18. The testimony of the PWs, DWs and the pleadings of the parties established that the plaintiff / respondent proved the case and discharged the onus. The Ld. Trial Court has examined the issues framed in the suit in proper perspective. This court does not find any illegality or infirmity in the impugned judgment and decree dated 10.10.2014 which is well reasoned/correct appreciation of facts and in accordance with the provisions of law. The impugned judgment is therefore entitled to be upheld. There is no merit or substance in the appeal which is liable to be dismissed. The appeal is therefore dismissed with cost.
19. Decree sheet be drawn accordingly.
20. Trial Court record be sent to the concerned court along with copy of this judgment.
21. Appeal file be consigned to record room.
Announced in open Court st on this 21 day of February, 2015 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi RCA No. 115/14 page 17 of 17 Pramod Kumar & Ors. Vs. Anand Kumar