Delhi District Court
Mohmad Ramzan vs . on 5 April, 2010
Page No. 1 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
IN THE COURT OF SH. RAJ KUMAR : ADMINISTRATIVE CIVIL
JUDGEcum ADDITIONAL RENT CONTROLER : (NORTH) DELHI.
In Re : Suit No. 1634/2008.
Old Suit No. 267/1988.
1.Shri Mohmad Ramzan S/o Sh. Malley Khan, R/o T12, Ward No. 8, Aulia Masjid, Mehrauli, Delhi. Plaintiff.
Versus.
1. Shri Madhu Kishan Gupta,
2. Sh. Sudhir Kishan Gupta,
3. Sh. Surendra Kishan Gupta,
4. Sh. Virendra Kishan Gupta, All sons of Sh. Kishan Chand Gupta, R/o 44, Anand Lok, New Delhi.
5. Pandit Chander Bhan, S/o Pt. Chhajju Ram, R/o Ward no. 5, Mehrauli, Delhi. Defendants.
Date of Institution of Suit : 25.05.1988.
Date on which Order was reserved : 30.03.2010.
Date of Pronouncement of Order : 05.04.2010.
JUDGMENT.
The facts in brief, necessary for the disposal of the present suit for declaration that the proceedings in suit no. 651 of 1982 subsequently registered Contd...
Page No. 2 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
as No. 341 of 1983 is nullity and void and for permanent injunction are that the plaintiff is the owner and in possession of plot of land bearing no. T12, Ward No. 8, Khasra no. 1151/3 admeasuring 4783 square yards with residential edifices built therein situated in Mehrauli, New Delhi as shown in red in the plan annexed with the plaint. It has been stated further that the plaintiff and his predecessors in interest have been in actual physical possession and enjoyment of the said property since time immemorial and continued to pay house tax to the municipal authorities. It has been stated further that defendant nos. 1 to 4 falsely instituted a suit for Specific Performance of the alleged agreement to sell for Rs.12,000/ and possession bearing original suit no. 651/1982 (subsequently registered as suit no. 341/1983) titled as Sh. Madhu Kishan Gupta & Ors vs. Sh. Mohd. Ramzan and another (herein after referred to as said suit) before Senior Sub Judge Delhi, seeking decree for specific performance of the agreement to sell dated 25.05.1982 and thereafter in the plaint of the present suit the plaintiff has reproduced the plaint and the Written Statement filed in case bearing no. 651/1982 (new suit no. 341/1983). It has been stated further that in the said suit an application for compromise under Order 23 CPC r/w section u/S 151 CPC was moved, whereupon statement of plaintiff no. 1 in that suit was recorded and on behalf of Mohd. Ramzan statement of Sh. V.C. Sharma, Advocate was recorded. It has been stated further that on the basis of the statements, the suit of the plaintiff was dismissed as withdrawn by Ld. Judge on 03.05.1985. It has been alleged further that the entire proceedings in the said suit no. 651/1982 are collusive and fraudulent in between the defendants behind the back of the Contd...
Page No. 3 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
plaintiff and are null and void and not binding upon the plaintiff as the plaintiff was neither served and that signatures on the summons are not that of the plaintiff. It has been further alleged that plaintiff never engaged Sh. V.C. Sharma, advocate to represent the plaintiff in the said suit and that signatures appearing on the vakalatnama filed by Sh. V.C. Sharma are not that of the plaintiff. It has been further alleged that plaintiff was never represented by any one and that plaintiff had not authorized anybody, much less Sh. V.C. Sharma, advocate to represent the plaintiff in the said suit. It has been further alleged that the agreement dated 25.02.1982 is fabricated and is not signed and executed by the plaintiff and that plaintiff never entered into any such agreement as asserted and that plaintiff never signed and / or verified the Written Statement filed in the said suit. It has been stated further that plaintiff never signed and executed any receipt dated 25.05.1982 and neither the plaintiff had received any payment nor did any person sign the receipt in the presence of the plaintiff. It has been stated further that plaintiff being unaware of the said suit and the proceedings, could not have thought of compromise, much less the purported application moved under Order 23 Rule 3 CPC. It has been further alleged that plaintiff had not signed and executed any such compromise application dated 12.03.1985 nor authorized anyone to enter into such compromise and had never authorized Sh. V.C. Sharma, advocate to make any statement. It has been further alleged that the resultant order passed in the proceedings on 03.05.1985 came to be passed in the aforesaid facts and circumstances, which disclose obvious collusion and fraud perpetrated on the court by the defendants herein. It Contd...
Page No. 4 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
has been further alleged that the statements recorded and the document exhibited in that suit were made collusively and that the same is not binding upon the plaintiff and do not confer and / or create any right, interest in or upon the property owned and continued to be owned and possessed by the plaintiff and in his use and enjoyment. It has been stated further that plaintiff has all along used and enjoyed the property without any interruption from anyone, much less from the defendant. It has been stated further that plaintiff is the lawful owner and in possession of the said property and with a view to protect its boundaries, got the property demarcated by the DDA and the certificate issued by DDA is being filed alongwith the plaint. It has been stated further that defendant nos. 1 to 4 on or about April 22, 1988 alongwith many other persons threatened to dispossess the plaintiff from the property and that plaintiff lodged the report with the concerned SHO.
It has been prayed to declare that the plaintiff is the owner of the properties unaffected by the proceedings and order passed in Suit no. 651/1982, subsequently registered as no. 341/1983, by Smt. Urmila Rani, Sub Judge. It has also been prayed to grant permanent injunction that the defendants and their agents etc be restrained from interfering in any manner with the peaceful possession of the property bearing plot of land bearing no. T12, Ward No. 8, Khasra no. 1151/3, admeasuring 4783 square yards with residential edifice built thereon situated in Mehrauli, New Delhi, permanently. Plaintiff has also prayed for the costs of the suit.
Contd...
Page No. 5 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
2. Written Statement has been filed by the defendants taking therein various preliminary objections such that the suit filed by the plaintiff is false, frivolous and vexatious one. It has also been stated that the suit has not been valued properly for the purposes of court fees and jurisdiction. It has been stated further that plaintiff in pursuance to an agreement to sell dated 25.05.1982 followed by a written compromise duly recorded and executed in Suit no. 651 of 1982 (subsequently registered as suit no. 341 of 1983) handed over the vacant possession of 3780 square yards of land comprising in Khasra no. 1665 Min. situated in Mehrauli Township and bearing municipal no. T12, Ward No. 8, Mehrauli and is now seeking to forcibly dispossess the defendants and usurp from their land. It has been further alleged that the plaintiff is now resiling from the agreement lawfully recorded in said suit. It has been stated further that plaintiff is seeking to sell the said land to one Mr. Jhunjhunwala and others and towards this ulterior object he attempted to dispossess the defendant nos. 1 to 4, which culminated in the reports being lodged by the defendant no. 2 with the police and finally to the sealing of the land / premises in terms of the order dated 17.05.1988 passed by SDM (South) since the plaintiff was bent upon taking law in his own hands. It has been stated further that the plaintiff concealed the fact of the land / premises having been already sealed on 19.05.1988 pursuant to the order dated 17.05.1988. It has been stated further that sealing of the property except the residential portion of 220 square yards in occupation of the plaintiff was also done in the presence of the plaintiff and his associates. It has been further alleged that plaintiff in the garb of a suit for declaration and permanent Contd...
Page No. 6 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
injunction is now seeking to recover possession of the suit property from the defendant nos. 1 to 4 and as such suit filed by the plaintiff is not maintainable.
On merits, it has been denied that the plaintiff is in possession of plot of land bearing no. T12, Ward 8, Khasra no. 1151/3 (old no. 1665Min) ad measuring 4783 square yards with residential edifice built thereon. It has been stated further that the copy of the plan as filed by the plaintiff is wrong and does not represent the factual position at site and in fact is contradictory to the plan filed and exhibited by the plaintiff in the compromise entered into suit bearing no. 651/1982 (341/1983) in the court of Smt. Urmila Rani, SubJudge, Delhi. It has been stated further that plaintiff in pursuance to an agreement to sell dated 25.05.1982 agreed to sell the defendants the land measuring 4000 square yards together with the structures thereon for a consideration of Rs. 12,000/ and received a total sum of Rs. 4000/ from the defendants, out of which Rs. 2000/ were paid to the plaintiff vide a receipt dated 25.05.1982 executed by the plaintiff on singing of the agreement and another Rs. 2000/ were paid to the plaintiff through Pt. Chander Bhan, defendant no. 5 herein. It has been further alleged that the plaintiff was not coming forward to complete the sale and as such the defendants were constrained to file suit bearing no. 651/1982. It has been further alleged that plaintiff herein Mr. Mohd. Ramzan and Pt. Chader Bhan were duly served in that suit and they entered appearance through counsel Sh. V.C. Sharma and Written Statement in that suit was also signed and verified by the plaintiff herein. It has been stated further that thereafter matter was settled between the parties and plaintiff accepted that the sale consideration was Contd...
Page No. 7 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
Rs.12,000/ and the defendants in that suit also agreed to give up their claim with regard to all of 4000 square yards. It has been stated further that the answering defendants left 220 square yards i.e. 50' x 40' falling on the northern side of the land comprising the portion where the plaintiff had built two huts / structures and the plaintiff herein handed over possession of the remaining vacant land of 3780 square yards to the answering defendants. It has been stated further that the aforesaid terms were duly recorded in a written compromise in terms of Order 23 Rule 3 r/w Section 151 CPC, which was duly signed by the parties and their counsels. It has been stated further that said application and the plan filed were signed by the parties and were exhibited and thereupon the Court disposed off the suit as withdrawn as parties had undertaken to abide by the terms of the compromise. It has been stated further that answering defendants have been in continuous and uninterrupted possession since 1985 of the 3780 square yards of land with structures out of the land bearing no. T12, Ward no. 8, Khasra no. 1151/3, pursuant to agreement to sell dated 25.05.1982 and the compromise recorded in suit no. 651/1982 (341/1983). The filing of the suit no. 651/1982 (341/1983) is admitted by the answering defendants. It has been stated further that plaintiff and defendant no. 5 after being duly served through Sh. V.C. Sharma, who entered appearance on behalf of the plaintiff and defendant no. 5. Rest of the contents of the plaint have been denied by the defendants and it has been prayed that the suit of the plaintiff be dismissed.
3. Replication has been filed by the plaintiff to the Written Statement Contd...
Page No. 8 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
of defendants denying the contents of the Written Statement and reaffirming and reiterating the contents of the plaint.
4. From of the pleadings of the parties, vide order dated 16.10.2001, the following issues were framed :
ISSUES:
(1)Whether the suit has been properly valued for the purposes of court fees and jurisdiction? OPP.
(2) Whether the suit is maintainable in the present form? OPP. (3) Whether the plaintiff is entitled for the decree of declaration as prayed? OPP. (4) Whether the plaintiff is entitled for the decree of permanent injunction as prayed? OPP.
(5) Relief.
5. In support of its case, the plaintiff has examined as many as 14 witnesses and the defendants have examined as many as three witnesses. The detailed testimonies of these witnesses examined by the parties shall be discussed in the later part of this judgment.
6. I have gone through the entire material on record and have heard the rival submissions as advanced by both the Ld. Counsels of the parties. My issuewise findings on the issues framed in the present suit are as under :
Contd...
Page No. 9 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
ISSUE Nos. 1 & 2 :
The present suit is a suit for declaration seeking decree of declaration that the plaintiff is the owner of the suit property unaffected by the proceedings and order passed in Suit no. 651/1982, subsequently registered as no. 341/1983, by Smt. Urmila Rani, Sub Judge. Plaintiff has also prayed for the decree of permanent injunction that the defendants and their agents etc be restrained from interfering in any manner with the peaceful possession of the property bearing plot of land bearing no. T12, Ward No. 8, Khasra no. 1151/3, ad measuring 4783 square yards with residential edifice built thereon situated in Mehrauli, New Delhi, permanently.
The plaintiff has valued the present suit for the relief of declaration at Rs. 200/ and for the relief of injunction at Rs. 130/ and the court fees of Rs. 33/ has been affixed. During the course of arguments, so far as the valuation of the suit is concerned and so far as the maintainability of the present suit in the present form is concerned, Ld. Counsel for the defendants has failed to point out anything in contradiction of the aforesaid stand taken by the plaintiff in the plaint. Without going into the evidence led by the parties, I am of the opinion that the present suit has been valued properly for the purposes of court fees and jurisdiction and that the present suit is also maintainable in the present form.
Accordingly, both these issues i.e. issue nos. 1 and 2 are decided in favour of the plaintiff and against the defendants.
Contd...
Page No. 10 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
ISSUE Nos. 3 & 4 :
Both these issues are taken up together as the same are connected interse, overlap each other and relate to the prayer clause of the main suit.
The factual matrix in the present suit is within a narrow compass. It is the admitted position in between the parties to the suit that the defendant nos. 1 to 4 had earlier instituted a suit for specific performance of the agreement to sell and possession bearing original suit no. 651/1982 (new suit no. 341/1983) titled as Sh. Madhu Kishan Gupta & Ors vs. Sh. Mohd. Ramzan and another before the Senior Sub Judge Delhi, seeking decree for specific performance of the agreement to sell dated 25.05.1982. It is also not in dispute in between the parties to the present suit that later on an application for compromise u/O 23 Rule 4 CPC was filed in the said suit and that the said suit was dismissed as withdrawn vide orders dated 03.05.1985. The clear cut and unequivocal stand of the plaintiff in the present suit is that he never entered into any agreement to sell dated 25.05.1982 and that the said suit was a collusive one and that the application for compromise u/O 23 Rule 3 CPC, vakalatnama in favour of advocate Sh. V.C. Sharma did not bear the signatures of Mohd. Ramzan (plaintiff herein) and that the said suit was got disposed off by the defendants in a fraudulent manner by playing fraud upon the plaintiff herein as well as upon the court of Ms. Urmila Rani. The plaintiff has alleged that the plaintiff is the owner and in possession of the plot no. T12, Ward No. 8, Khasra no. 1151/3 situated in Mehrauli, New Delhi and that he has been continuously in possession of the premises in question. It has been stated further that the documents filed Contd...
Page No. 11 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
on record in the earlier suit no. 651/1982 were forged and fabricated. The
plaintiff has taken the stand that he never signed the vakalatnama in favour of Sh. V.C. Sharma and that he never signed / verified the Written Statement filed in that suit and that he never signed on the application for compromise u/O 23 Rule 3 CPC filed in the said suit and hence the present suit for declaration and permanent injunction.
Whereas in the Written Statement filed by defendant nos. 1 to 4, the defendant have stated that the suit filed by the plaintiff is false, frivolous and vexatious one. It has been stated further by the defendants that plaintiff in pursuance to an agreement to sell dated 25.05.1982 followed by a written compromise duly recorded and executed in Suit no. 651 of 1982 (subsequently bearing suit no. 341 of 1983) handed over the vacant possession of 3780 square yards of land comprising in Khasra no. 1665 Min. situated in Mehrauli Township and bearing municipal no. T12, Ward No. 8, Mehrauli and is now seeking to forcibly dispossess the defendants and usurp from their land. It has been stated further that plaintiff is seeking to sell the said land to one Mr. Jhunjhunwala and others and towards this ulterior object he attempted to dispossess the defendant nos. 1 to 4, which culminated in the reports being lodged by the defendant no.2 with the police and finally to the sealing of the land / premises in terms of the order dated 17.05.1998 passed by SDM (South) since the plaintiff was bent upon taking law in his own hands. It has been stated further that the plaintiff concealed the fact of the land / premises having been already sealed on 19.05.1988 pursuant to the order dated 17.05.1988. It has been Contd...
Page No. 12 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
stated further that sealing of the property except the residential portion of 220 square yards in occupation of the plaintiff was also done in the presence of the plaintiff and his associates.
Now, on the aforesaid factual matrix, the question which has to be decided by the court is that as to whether the plaintiff has been able to prove on record that the entire proceedings in earlier suit bearing no. 651/1982 were collusive and the statements of the parties were recorded fraudulently.
During the course of arguments, Ld. Counsel for the plaintiff has argued that the plaintiff never appeared in the earlier suit no. 651/1982 which was dismissed as withdrawn on 03.05.1982. It has been argued further by Ld. Counsel for the plaintiff that the plaintiff has been in continuous possession of the land in question. It has been argued further that vide orders dated 17.05.1988 the property was sealed by the SDM concerned u/S 145 CrPC and on 25.05.1988 the present suit for declaration was filed. It has been argued further by Ld. Counsel for the plaintiff that in the previous suit the defendants had admitted the plaintiff to be in possession and owner of the suit property and till today nothing has changed thereafter. It has been argued further that no sale deed was got executed and no execution petition was filed and no title was ever passed to the defendants. Ld. Counsel for the plaintiff has stated further that plaintiff has examined 14 witnesses, who have proved the case of the plaintiff and most particularly Ld. Counsel for the plaintiff has relied upon the testimony of PW 14.
Contd...
Page No. 13 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
On the other hand, Ld. Counsel for the defendants has argued that the plaintiff is guilty of concealment of material facts as the plaintiff has concealed that the property was lying attached / sealed even prior to the filing of present suit. Ld. Counsel for the defendants has further argued that the earlier suit was not collusive and that the said suit continued for a period of three years. It has been argued further that Sh. V.C. Sharma, advocate for Mohd. Ramzan has been examined by the defendants in the present suit and he has proved the application for compromise u/O 23 Rule 3 CPC which had been filed in earlier suit bearing no. 651/1982. Ld. Counsel for the defendants has argued further that the testimony of handwriting expert i.e. PW 14 cannot be accepted at all because the handwriting expert had not compared the admitted signatures of Mohd. Ramzan plaintiff herein, with the disputed signatures of Mohd. Ramzan. Ld. Counsel for the defendants has argued further that even no qualification of the handwriting expert has been proved on record and further that the signatures were taken without the permission of the court and that no enlargment of photos of admitted signatures was done and as such the report of handwriting expert cannot be accepted. Ld. Counsel for the defendants has argued further the plaintiff is admittedly in possession of one portion of the land. It has been argued further that the orders u/S 146 CrPC passed by concerned SDM were upheld even by the Hon'ble High Court of Delhi. It has been argued further that water bill, electricity bill and house tax receipts are with respect to the portion in possession of the plaintiff and the plaintiff is trying to extend the same. It has been argued further by Ld. Counsel for the defendants that the present suit has Contd...
Page No. 14 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
been filed with a view to blackmail the defendants. Ld. Counsel for the
defendants has relied upon the following authorities :
1. 1(1998) CLT 1 (DB) Delhi High Court Satish Khosla vs. Eli Lilly Ranbaxy Ltd. & Anr. wherein it has been held as under :
"Civil Procedure Code, 1908 - Order 39, Rules 1 & 2 - Expartte Injunction - No interim injunction given in earlier suit - Same application for interim injunction in subsequent suit - No disclosure of what transpired in earlier suit _ Amount to Fraud upon the Court."
2. AIR 1958 Madhya Pradesh 246 (V 45 C 92) Kamalnarayan Ramsaranlal vs. Ram Kishorelal and another wherein it has been held as under :
" Evidence Act (1872), S. 45. Proof of handwriting of old persons. It is common knowledge that handwriting of persons are never uniform, especially when when they are old."
3. AIR 1977 Supreme Court 1694 Laxmi Chand Khajuria and others vs. Smt. Ishroo Devi, wherein it has been held as under :
" Evidence Act (1872), S. 45 - Evidence of handwriting expert Qualifications of the expert examined on behalf of appellant were not such as to accept him as a handwriting expert He had hardly done any work as an expert after 1950 He exceeded the limits as an expert and supported appellant in matters which were not within his provice - His testimony is to be rejected."
Contd...
Page No. 15 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
4. AIR 1977 Supreme Court 1091 Magan Bihari Lal vs. The State of
Punjab, wherein it has been held as under :
" It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution, than the opinion of handwriting expert. It is unsafe to base a conviction solely on expert opinion without substantial corroboration. This type of evidence, being opinion evidence, is by its very nature, weak and infirm and cannot of itself form the basis for a conviction. Case law, traced Cr. Rev. No. 314 of 1973, D/o 1291975 (Punj), Reversed.
Now coming to the evidence part, the plaintiff has examined 14 witnesses. The first witness examined by the plaintiff is PW 1 Sh. Habib, who has stated in his examinationinchief that he is the neighbour of the plaintiff and that the plaintiff is in possession of the suit property. To the similar effect is the testimony of PW 2 Ramzani and PW 3 Sh. Rahimuddin.
Sh. Hari Lal Gupta, Record Keeper, Punjab National Bank has been examined by the plaintiff as PW 4 who has stated that he has proved / brought the certified copy of the specimen signatures of Mohd. Ramzan available in the bank as Ex. PW 4/1.
The next witness examined by plaintiff is PW 5 Sh. Kailash Kumar, who has brought the certified copy of demarcation report dated 04.04.1988 as Ex. PW 5/1, photocopy of Khasra Girdawri for the year 1963 1967 as Ex. PW 5/2, photocopy of Khasra Girdawri for the year 19671971 as Contd...
Page No. 16 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
Ex. PW 5/3, photocopy of Khasra Girdawri for the year 19711975 as Ex. PW 5/4, photocopy of Khasra Girdawri for the year 19751979 as Ex. PW 5/5, photocopy of Khasra Girdawri for the year 19791983 as Ex. PW 5/6, photocopy of Khasra Girdawri for the year 19831987 as Ex. PW 5/7, photocopy of Khasra Girdawri for the year 19881990 as Ex. PW 5/8, the true and certified copies of Hindi Translations of Ex. PW 5/2 to PW 5/8 as Ex. PW 5/9 to PW 5/14.
PW 6 Sh. Ranbir Singh, LDC from Record Room Civil, Tis Hazari Courts has stated that he has not brought the summoned record.
The plaintiff has examined further Sh. Charan Dass, Meter Inspector, ZRO, Water Mehrauli Zone, DJB, New Delhi as PW7, who has filed on record the water meter diary belonging to water connection bearing no. 24219 installed on 25.11.1989 and connection bearing no. 24077 installed on 16.02.1972 in the premises in question as Ex. PW 7/B and PW 7/C. He has also filed the other details as per office record as Ex. PW 7/A. This witness has stated that the aforesaid connections are in the name of Mohd. Ramzan, plaintiff herein.
Sh. D.K. Kaushik, Asstt. Accountant working in South West Delhi Electric Co. Ltd was examined by the plaintiff as PW 8, who has proved the letters bill for the month of May 2002 as Ex. 8/1 and the original agreement signed by the plaintiff with the department as Mark A and the statement of accounts pertaining to electricity connection as Ex. PW 8/2A to PW 8/2X.
The plaintiff has examined further Sh. Puran Chand, Bailiff, Tis Hazari Courts Delhi as PW 9 who has stated in his examination in chief that he Contd...
Page No. 17 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
never seen the address mentioned in the summon Ex. PW 9/A before the date where he went to serve that summon. He further stated that he cannot tell the exact location where the said address was located as the seventeen years had already passed. He has stated further that he does not know the Urdu language and he cannot tell what had been written in Urdu at point A on Ex. PW 9/A and that he cannot tell that whether the person who received the summon was Mohd. Rehman or not as he delivered the summons to the person who was found present on the spot. He has denied the suggestion that he delivered the summons to some wrong person at the instance of plaintiff.
Sh. Rati Ram, Tehsildar has been examined by the plaintiff as PW 10, who has stated that he has seen the document Ex.PW 5/1 and the same is the certified copy of demarcation report dated 04.04.1988.
The plaintiff has examined further Sh. Dinesh Sharma, Halqa Patwari as PW 11, who has stated that he has seen the suit land and the same in actual possession of the plaintiff and his family members.
The next witness examined by the plaintiff is PW 12 Sh. Amar Singh Sharma who has stated in his examination in chief that the house tax of the suit property is assessed in the name of the plaintiff.
Plaintiff has examined himself as PW 13 and has filed his evidence by way of affidavit reiterating and reaffirming the stand taken by him in the plaint and has filed on record various documents such as site plan as Ex. PW 13/1, original receipt for payment of house tax bearing no. 366024 as Ex. PW 13/2, notice for assessment as Ex. PW 13/3, property tax bill as Ex. PW 13/4, Contd...
Page No. 18 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
true copy of receipt dated 08.09.1982 as Mark C, certified copy of summons for dated 27.07.1984 issued in case no. 651/1982 as Ex. PW 13/6, certified copy of vakalatnama as Ex. PW 13/7, certified copy of Written Statement dated 31.08.1984 as Ex. PW 13/8, certified copy of application u/O 23 Rule 3 CPC as Ex. PW 13/9, original bills of electricity as Ex. PW 13/10 (colly), original water bills as Ex. PW 13/11 A to PW 13/11 E, true photocopies of complaints dated 23.04.1988 and 19.05.1988 as Ex. Mark D and E respectively.
The last witness examined by the plaintiff is PW 14 Sh. Kamal Kant Khandelwal, who is the handwriting expert and has stated in his examination in chief that he has examined the disputed signatures marked 1 to 6 alleged to be of Sh. Mohd. Ramzan and compared them with the specimen signatures of Mohd. Ramzan and that specimen signatures are on the specimen sheet. He has also filed his report as Ex. PW 14/2. He has stated further that after examination, he found that disputed signatures are not written by the writer of the specimen signatures of Mohd. Rehman.
Now coming to the evidence of defendants, the defendants have examined defendant no. 2 as DW 1 who has filed his evidence by way of affidavit reiterating and reaffirming the stand taken by the defendants in the was and has filed on record various documents such as photocopy of judicial proceedings of suit bearing no. 351/1983 as Ex. DW 1/1 to DW 1/6, original agreement to sell dated 25.05.1982 as Ex. DW 1/7, receipts dated 25.05.1982 and 20.03.1974 as Ex. DW 1/8 (colly), site plan as Ex. DW 1/9 and complaint dated 03.05.1988 as ex. DW 1/10.
Contd...
Page No. 19 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
The next witness examined by the defendants is DW 2 Sh. V.C. Sharma, Advocate, Chamber No. 305, Civil Side, Tis Hazari Courts, Delhi and he has categorically stated that he was the counsel for Mohd. Ramzan in suit titled as Madhu Kishan Gupta vs. Mohd. Ramzan & Others bearing suit no. 341/83 He has stated further that he has seen the certified copy of application Ex. PW 13/9 and the same bears his signatures at point B. He has stated further that Sh. Mohd. Ramzan had also put his signatures in his presence. He has stated further that however he cannot identify his signatures as the same are in Urdu but the same were put in his presence. He has also identified the signatures of Mohd. Ramzan on his vakalatnama Ex. PW 13/7 at point C. He has stated further that Mohd. Ramzan had also put his signatures in Urdu in his presence on the Vakalatnama. He has further stated that he has also seen the Written Statement Ex. PW 13/8 which also bears his signatures and signatures of Mohd. Ramzan. He has stated further that his statement was also recorded on 03.05.1982 which bears his signatures at point D and certified copy of his statement is Ex. DW 2/1.
The last witness examined by the defendants is DW 3 Sh. Satya Pal, Record Attendant, Sub Registrar Office, Department of Archives, who has stated that the document i.e. the receipt dated 20.03.1974 in original was duly registered with the office of Sub Registrar as document no. 1345, Book no. 4, Volume 508 page no. 1 registered on 21.03.1974. The aforesaid receipt in original is Ex. DW3/1.
Contd...
Page No. 20 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
In the light of the aforesaid factual position and the evidence led by the parties, the material question is as to whether the plaintiff has been able to prove the fraud and collusion as alleged by him.
First of all, I would like to deal with the testimony of PW 14, whose testimony has been heavily relied upon by the Ld. Counsel for the plaintiff. It is the settled law that testimony of expert evidence has to be accepted by the court with great caution and the testimony of handwriting expert has to be accepted with great care and caution. In the case in hand Sh. Kamal Kant Khandelwal has compared the disputed signatures of Mohd. Ramzan with the specimen signatures of Mohd. Ramzan and the specimen signatures were taken on specimen sheet.
Ld. Counsel for the defendants has argued that the testimony of handwriting expert i.e. PW 14 cannot be accepted at all because the handwriting expert had not compared the admitted signatures of Mohd. Ramzan plaintiff herein, with the disputed signatures of Mohd. Ramzan. Ld. Counsel for the defendants has argued further that even no qualification of the handwriting expert has been proved on record and that the signatures were taken without the permission of the court and that no enlargment of photos of admitted signatures was done and as such the report of handwriting expert cannot be accepted.
I am of the opinion that there is weight in the submissions of Ld. Counsel for the defendants because the signatures of Mohd. Ramzan have not been compared with the admitted signatures which were already there on the plaint, on the verification, on the vakalatnama and various documents. As such, I Contd...
Page No. 21 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
am of the opinion that the testimony of PW 14 Kamal Kant Khandelwal cannot be accepted.
So far as the testimony of rest of the witnesses examined by the plaintiff is concerned, it is true that the aforesaid witnesses have not been cross examined by the defendants but the question is as to what is the weight of the testimonies of the aforesaid witnesses and what they have deposed in their evidence. PW 1, PW 2 and PW 3 have stated that the plaintiff is in possession of the suit premises as on date, and the rest of the witnesses are the official witnesses i.e. Halqa Patwari, Tehsildar, official from Delhi Jal Board and from the other revenue authorities and all these witnesses have emphasized only on the fact that the plaintiff is in possession of the suit property. None of the witness except PW 14, who has deposed about the signatures of Mohd. Ramzan, have anywhere stated that the proceedings of the previous suit bearing no. 651/1982 were collusive and fraudulent. None of the witnesses have spoken about the signatures of Mohd. Ramzan in the previous suit bearing no. 651/1982, except the PW 14. It has to be seen further that the court has got the powers to compare the signatures u/S 73 of the Indian Evidence Act, 1872 in order to ascertain whether as signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose and the Court may direct any person present in Court to write any words or Contd...
Page No. 22 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
A careful perusal of the signatures of the plaintiff in the plaint of the present suit as well as on the verification and the other documents as well, reveals that the signatures of plaintiff vary and that the signatures of plaintiff even in the present proceedings are not exactly similar, in my opinion.
So far as the evidence of defendants is concerned, the defendants have examined defendant no. 2 as DW 1 who has filed on record the photocopy of judicial proceedings of suit bearing no. 651/1982 as Ex. DW 1/1 to DW 1/6, original agreement to sell dated 25.05.1982 as Ex. DW 1/7, receipts dated 25.05.1982 and 20.03.1974 as Ex. DW 1/8 (colly), site plan as Ex. DW 1/9 and complaint dated 03.05.1988 as ex. DW 1/10. In the cross examination of this witness, nothing material has come out from the mouth to discredit the testimony of this witness. During the entire cross examination of this witness not even a single suggestion has been given to the effect that Sh. V.C. Sharma, advocate was not the counsel for Mohd. Ramzan in that previous suit bearing no. 651/1982. This witness has stated further in his cross examination that the total area of the land in question was 4000 square yards at the time of agreement to sell and at the time of compromise 220 square yards were given to Mohd. Ramzan and rest of the area i.e. 3780 square yards was handed over to him. It has been stated further that physical possession of the property in question had been handed over to me by the plaintiff in presence of Surender Kishan Gupta, Madhu Kishan Gupta, Virender Kishan Gupta, Harish Gupta and D.D. Saini.
Contd...
Page No. 23 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
The defendants have further examined Sh. V.C. Sharma, advocate as DW 2 and he has stuck to the point that vakalatnama, Written Statement and compromise application filed in the previous suit bear his signatures as well as the signatures of Mohd. Ramzan and that his statement was recorded on 03.05.1985 on behalf of Mohd. Ramzan. This witness has not been given the suggestion that compromise application does not bear the signatures of Mohd. Ramzan.
The third witness examined by the defendants i.e. DW 3 Sh. Satya Pal has proved the receipt dated 20.03.1974 as DW 3/1.
Ld. Counsel for the defendants has pointed out that the premises in question were sealed by the SDM concerned even prior to the filing of the present suit and it is true and admitted by the plaintiff. It is also true that in the entire plaint filed on record by the plaintiff, this fact has not been disclosed by the plaintiff. Ld. Counsel for the defendants has argued that an adverse inference has to be drawn against the plaintiff for non disclosure of the aforesaid fact. I am of the opinion that non mentioning of the aforesaid fact does not mean that an adverse inference has to be drawn against the plaintiff and as such I proceed to decide the present suit on merits without drawing an adverse inference.
A careful perusal of the proceedings of the previous suit bearing no. 651/1982 reveals that the said suit continued for a period of three years and ultimately on 03.05.1985 on the basis of the statements of parties recorded therein, the said suit was dismissed as withdrawn. A careful perusal of the Contd...
Page No. 24 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
process issued to Mohd. Ramzan in that suit reveals that for the first time the summons were issued on 05.11.1982 and the Process Server had reported that the Mohd. Ramzan was out of station and thereafter the process was again issued for 27.07.1984, almost after two years and the same was served on 12.06.1984. A careful perusal of the aforesaid proceedings has been referred to by me to show that proceedings in the said suit kept pending for a considerable period of time. I am of the opinion that it cannot be said that the parties to that suit were in hurry and that they concluded the proceedings of that suit in the least possible time and in hurry because the parties were in collusion with each other. It has also to be seen that the Process Server who served the summons to Mohd. Ramzan in the previous suit, has been examined by none other but by the plaintiff himself, as PW 9 and the said Process Server has denied the suggestion that he delivered the summons to some wrong person at the instance of plaintiff.
In the light of the aforesaid discussion, I am of the considered opinion that the plaintiff has utterly failed to prove on record that the proceedings in the earlier suit bearing no. 651/1982, subsequently registered as no. 341/1983 were collusive and fraudulent and as such I am of the opinion that the plaintiff is not entitled for any relief in the present suit.
Accordingly, issue nos. 3 and 4 are decided against the plaintiff and in favour of the defendants.
Contd...
Page No. 25 Suit No. 1634/2008.
Mohmad Ramzan vs.
Madhu Kishan Gupta etc.
Relief :
In view of my findings on issue nos. 3 & 4, the suit of the plaintiff is hereby dismissed. Decree Sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open Court today on 05th Day of April, 2010.
(RAJ KUMAR) ADMINISTRATIVE CIVIL JUDGE cumADDITIONAL RENT CONTROLLER (NORTH) TIS HAZARI COURT: DELHI.
Contd...