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[Cites 7, Cited by 0]

Delhi District Court

Sh. Vidya Bhushan vs Sh. Sagar Chand on 29 August, 2011

           IN THE COURT OF MS. NEHA PALIWAL,   CIVIL JUDGE­06
                                                              
               CENTRAL DISTRICT,  TIS HAZARI COURTS, DELHI
                                                          
                              SUIT NO. 81/11/90
Unique Case ID no. : 02401C0072832001
In the matter of :

Sh. Vidya Bhushan,
s/o Sh. Ram Lotan, 
previously resident of B­1677 , Shastri Nagar, 
Delhi­110052.                                                                .... Plaintiff.
             Versus
1.    Sh. Sagar Chand, 
      s/o Sh. Sunder Lal,
      r/o B­1677, Shastri Nagar,
      Delhi­110052.
2.    Sh. Birbal, 
      s/o Sh. Sunder Lal,
      r/o B­1677, Shastri Nagar,
      Delhi­110052.       (Deleted from the array of parties vide order dated 01.07.1999) 
3.    Sh. Mohinder,
      s/o Sh. Sunder Lal,
      r/o B­1677, Shastri Nagar,
      Delhi­110052.      (Deleted from the array of parties vide order dated 13.01.1992). 

4.        Sh. Raghubir,
          s/o (unknown)

Suit no. 81/11/90
Vidya Bhushan v. Sagar Chand                                                        Page 1 of 24
           r/o A­512, Shastri Nagar,
          Delhi­110052.      (Deleted from the array of parties vide order dated 13.01.1992). 
                                                                          .... Defendants.

Date of institution of the suit                  :      20.08.1990.
Date of receipt of this case in this court       :      11.01.2011.
Date of reserving Judgment/Order                 :      27.08.2011.
Date of pronouncement                            :      29.08.2011.


JUDGMENT

1. The present suit was initially filed by the Plaintiff by way of an application u/o 33 rule 2 CPC as an indigent person for recovery of possession of tenanted premises u/s 6 of the Specific Relief Act and for recovery of the goods removed from the said premises or in the alternative for recovery of Rs. 30,000/­ as value of those goods. The Plaintiff was examined by the court in order to ascertain prima facie that the application is filed by an indigent person on the first date of hearing i.e. 21.08.1990. Vide order dated 06.11.1990 as Defendant no. 1 was deemed served he was proceeded ex­parte as he failed to appear, however the said ex parte order against Defendant no. 1 was set aside vide order dated 03.05.1991. Thereafter vide order dated 13.01.1992 Defendant no. 3 and 4 were deleted from the array of parties in view of the separate statement of the counsel Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 2 of 24 for the Plaintiff/Applicant. In this matter vide order dated 09.09.1992 the plaint was returned to the Plaintiff under the provisions of order 7 rule 10 to be presented before the court of proper pecuniary jurisdiction. Thereafter the matter was received by way of assignment by the court of proper pecuniary jurisdiction on 24.09.1992.

2. In this matter vide order dated 04.06.1997 the application of the Plaintiff to file the present suit as an indigent person was allowed and the Plaintiff was permitted to file court fees at the time of the disposal of the present matter if the matter is decreed in his favour. Vide that order the Plaintiff was declared as an indigent person in the present case and the case was directed to be registered as a plaint and the Defendant was directed to file written statement in the matter. Pursuant to that order written statement was filed by Defendant no. 1 on 04.08.1997.

3. In this matter vide order dated 11.08.1998 the suit of the Plaintiff was dismissed in default however vide order dated 27.05.1999 the suit of the Plaintiff was restored back subject to cost.

4. Further in the present matter vide order dated 01.07.1999 on the basis of submissions of the Ld. Counsel for the Plaintiff that the Plaintiff does not want to claim any relief against Defendant no. 2, the name of Defendant no. 2 was also deleted from the title of the plaint.

Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 3 of 24

5. Briefly as per the application­cum­plaint the case of the Plaintiff is as under:­ Plaintiff was a tenant on the ground floor of premises no. B­1677, Shastri Nagar, Delhi­110052 (herein after known as the suit property) since 1985 at a monthly rental of Rs. 150/­ per month under the landlordship of Defendant no. 1. The Plaintiff was using the tenanted premises as a shop and as he was unmarried for the purpose of his residence as well and therein the Plaintiff was carrying on work of electric fitting and repairing of electric and electricity goods.

6. It is the case of the Plaintiff that in the intervening night between 22 nd and 23rd April, 1990 the Plaintiff was fitting electricity in the house of one Sh. Vishnu Dutt Gaur and was working there day and night and so was not present on the suit premises. However, when he visited the suit premises on 23.04.1990 at about 10:00 AM he saw that the lock of the suit premises was broken and the goods of the Plaintiff and those goods which he has received from the various customers along with his household goods were removed and the Defendants were sitting in the suit premises. On asking, the Defendants said that they have taken possession of the tenanted premises back from the Plaintiff. It is further averred by Plaintiff that thereafter he called the police and the police inspector namely Sh. Ashok Kumar came along with certain constables however despite seeing that the goods were kept in the portion of Defendant no. 1 he allowed the Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 4 of 24 goods to remain with the Defendants and refused to write any FIR though asked the Defendants to hand back the possession of the shop to the Plaintiff.

7. It is the case of the Plaintiff that the police connived with the Defendants and at the same time gave him false hopes and assurances that he will get back the possession of the premises and the goods stolen from the premises. It is averred by the Plaintiff that he has a ration card, electricity connection and valuable fixtures in the suit premises and as the whole articles as per list attached have been removed by the Defendants the Plaintiff is now left with no money or goods in order to pay the court fees. It is further averred that his name board is also removed from the suit premises and the fixtures are also removed and the structure of the suit premises has been changed by the Defendants. In order to show that he was a tenant in the suit premises the Plaintiff is relying upon the receipt of Rs. 1,800/­ which allegedly was executed by Defendant no. 1 on 02.01.1990 in lieu of the rent for the whole of the year 1990. The Plaintiff is also relying upon the copies of the complaint filed before the police authorities, his copy of ration card and the receipt of electricity connection. It is further averred that a notice dated 16.05.1990 was sent by the Plaintiff to the Defendants. Thus, it is prayed by the Plaintiff that the Defendants be ordered to deliver the possession of the suit premises along with the goods as mentioned in the list annexed with the plaint or in the alternative they be Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 5 of 24 directed to pay the value of the goods valued as Rs. 30,000/­.

8. Written statement was filed by Defendant no. 1 wherein preliminary objections were taken by the Defendant that the present suit is not maintainable in the present form and is filed by the Plaintiff without having any cause of action against the Defendant. It is the case of the Defendant that the suit of the Plaintiff is not valued properly for the purpose of court fees and jurisdiction and further the case of the Plaintiff is bad for mis joinder and non joinder of necessary parties as Smt. Chalti Devi, wife of Defendant no. 1 is the owner of the suit premises and she has not been impleaded as a party in the present suit. The Defendant further disputes that the Plaintiff is an indigent person. It is further his case that the present suit is time barred as the Plaintiff has failed to file the present suit within time from the date of alleged dispossession.

9. In its reply on merits besides denying the contentions of the Plaintiff as stated in the plaint categorically it is the case of the Defendant that the Plaintiff was never a tenant of the Defendant in the property bearing no. B­1677, Shastri Nagar, Delhi that is the suit property and the Plaintiff was never having any possession of the suit property. It is further averred by the Defendant that in fact there is no shop in existence in the suit property and the entire property is constructed on an area of approximately 19.83 sq. yds and is in possession of Defendant no. 1 and his family members. Defendant no. 1 Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 6 of 24 thus denies the status of the Plaintiff as his tenant and further denies that the Plaintiff was a tenant with respect to the ground floor of the suit property and further denies that the Plaintiff has paid a rent @ Rs. 150/­ per month to him. The Defendant further denies the alleged incident of the intervening night of 22nd and 23rd April, 1990 or of 23.04.1990 at about 10:00 AM. It is in turn averred by the Defendant that the suit premises are in his exclusive possession where he is residing along with his family members and there was never any shop of any type existing in the suit property. It is his case that he has never given the premises on rent to the Plaintiff as alleged and Defendant no. 2,3 and 4 (now deleted) are his relatives and their visit to the suit premises was natural. He denies the allegation of the Plaintiff of having removed any goods, utensils or clothes from the suit premises and further denies the tenancy of the Plaintiff. It is further averred by the Defendant that the Plaintiff in April, 1990 was in fact residing in A­308 Shastri Nagar, Delhi and never resided in the premises of Defendant no. 1 during the said period. It is further his case that the true facts are that the Plaintiff was visiting the house of Defendant no. 1 for the purpose of giving the training to his son Sh. Rakesh Kumar for repairing TV etc and accordingly 2 TVs were brought by the Plaintiff for imparting training to the son of Defendant no. 1. However, as the Plaintiff malafidely wanted to keep those TVs in the house of Defendant no. 1, Defendant no. 1 objected to the same Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 7 of 24 and lodged a police report consequent to which police officials came and they were handed over the said two TVs which they took to the police station.

10. It is further averred by the Defendant that the Plaintiff in collusion with the police officer is harassing the Defendants and has filed false criminal complaint against Defendant no. 1 which is pending trial in the court of Ld. Metropolitan Magistrate, Delhi. It is further averred by the Defendant that the ration card or the electricity connection receipt filed by the Plaintiff are fabricated and procured documents and that the Plaintiff was never in possession of the suit premises at any point of time. Defendant no. 1 further denies that the Plaintiff is an indigent person and it is his case that no belongings of the Plaintiff were removed by Defendant no. 1 at any point of time. Defendant no. 1 further disputes the pecuniary jurisdiction of this court to try the present matter. He further denies the allegation that the sign board of the Plaintiff was removed by him and it is his case that there was never any board in the name of the Plaintiff in the suit premises. He further denies the execution of any receipt dated 02.01.1990 of Rs. 1,800/­ as rent for the year 1990 in favour of the Plaintiff and has further averred that the Plaintiff has never paid any rent to him and was never a tenant in the suit premises and therefore the question of payment of rent does not arise. Defendant no. 1 admits the receipt of the notice dated 16.05.1991 and it is his case that he has also Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 8 of 24 replied to the same vide reply dated 29.05.1990. Thus, the Defendant has prayed that the suit of the Plaintiff be dismissed with special costs.

11. Replication was filed by the Plaintiff to the written statement of Defendant no. 1 wherein the Plaintiff specifically denied the preliminary objections taken by the Defendant and the averments of the Defendant as stated in the written statement and has reaffirmed the contentions as stated in the plaint categorically and further submitted that Smt. Chalti Devi is not the owner of the suit property and as such is not a necessary party. Thus he has prayed that his suit be decreed.

12. Issues were framed in this matter vide order dated 17.09.1999 and they are as under:­

1. Whether the suit is maintainable as presented? OPD.

2. Whether the suit is correctly valued for the purpose of court fees and jurisdiction? OPP.

3. To what relief the Plaintiff is entitled for, in view of submission made in para 14 of the plaint and also the prayer of the Plaintiff? OPP.

4. Relief.

13. Plaintiff in support of his case has examined himself as PW­1 and has examined Sh. Ali Mohammad as PW­2.

Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 9 of 24

14. Defendant in support of his case has examined three witnesses, Defendant no. 1 as DW­1, Sh. Bunti Gupta as DW­2 and Sh. Deepak Jain, Hand writing and Finger Prints Expert as DW­3.

15. PW­1 in his examination in chief has exhibited the following documents:­

1. Ex. PW1/1­ Rent receipt dated 02.01.1990 for Rs. 1,800/­.

2. Mark A - Copy of the ration card.

3. Ex. PW1/2 - Original DVB receipt dated 21.11.1989.

4. Ex. PW1/3 and Ex. PW1/4 - Criminal complaints filed by the Plaintiff against the Defendants.

5. Ex. PW1/5 - Legal notice dated 16.05.1990.

6. Ex. PW1/6 - Registered AD.

7. Ex. PW1/7 - List of goods filed along with the application.

8. Ex. PW1/8 - Site Plan.

16. At the stage of cross examination a note book was tendered by the Plaintiff.

17. DW­1 in turn in his affidavit has relied upon the following documents:­

1. Ex. DW­1/1 - General Power of Attorney dated 22.03.1980.

2. Ex. DW­1/2 - Will dated 22.03.1980.

3. Ex. DW­1/3 - Receipt dated 22.03.1980.

Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 10 of 24

4. Ex. DW­1/4 - Agreement to sell dated 22.03.1980.

5. Mark 'A' ­ Copy of the plaint in civil suit no. 107/91.

6. Mark 'B' ­ Copy of application u/o 23 rule 3 read with section 151 CPC moved on behalf of the Plaintiff in civil suit no. 107/91.

7. Mark 'C'­ Copy of receipt executed by the Plaintiff in civil suit no. 107/91.

8. Mark 'D' ­ Copy of reply dated 29.05.1990 to the legal notice dated 16.05.1990.

9. Ex. DW1/5 - Postal receipt.

10.Ex. DW1/6 - AD card.

18. DW­3 was a hand writing and finger print expert and he has tendered his report as Ex. DW3/A and has exhibited as Ex. DW3/B the enlarged photographs and has exhibited as Ex. DW3/C (Colly) their negatives.

19. Issue wise findings in the present matter as as follows:­ Issue no. 1:­Whether the suit is maintainable as presented? OPD.

20. The onus to prove this issue was put on the Defendant however it seems to be a typographical error as the onus to prove the maintainability of the suit should be on the Plaintiff.

21. The present suit is filed under the provisions of order 33 rule 2 CPC by the Plaintiff in the capacity of an indigent person. Preliminary objections were taken by the Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 11 of 24 Defendant in their reply to the application filed under the provisions of order 33 rule 2 that the applicant/ Plaintiff is not an indigent person and has sufficient means to pay the court fees in the present matter. However, vide detailed order dated 04.06.1997 the application of the Plaintiff to file the present suit as an indigent person was allowed and it was held that the Plaintiff has no sufficient means to pay the court fees and therefore he was declared as an indigent person in the present case and was permitted to pay the court fees at the time if any decree is passed in his favour. The case was further ordered to be registered as a plaint. As there is a detailed order dated 04.06.1997 which allows the application of the Plaintiff to institute the present suit as an indigent person in view of the same the suit of the Plaintiff filed initially by way of an application u/o 33 rule 2 and later on registered as a plaint vide order of the court, is very much maintainable as presented.

22. In view of the same this issue is decided in favour of the Plaintiff and against the Defendant.

Issue no. 2:­ Whether the suit is correctly valued for the purpose of court fees and jurisdiction? OPP.

23. The onus to prove this issue was on the Plaintiff.

24. Plaintiff has prayed for the decree of recovery of possession of the suit premises Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 12 of 24 on the ground that he was a tenant in the suit property and for recovery of Rs. 30,000/­.

25. It is argued by the counsel for the Defendant that as the present suit is a suit for possession and therefore the Plaintiff was required to pay the advaloreum court fees on the market value of the suit property. It is in turn argued by the Ld. Counsel for the Plaintiff that as the present suit is instituted under the provisions of section 6 of the Specific Relief Act he does not need to pay the advaloreum court fees his capacity being that of the tenant.

26. As per the Court Fees Act a tenant has to pay the court fees on the 12 months rent of the suit property and for a decree of recovery has to pay advaloreum court fees on the amount sought to be recovered.

27. It is further a settled law that the Plaintiff is the master of his own case and can value the relief sought according to his own wish. In the present case in hand as the Plaintiff is stating that as he was a tenant @ Rs. 150/­ p.m. and was dispossessed and has brought this suit under the provisions of section 6 of the Specific Relief Act and has valued the suit for the purpose of recovery of possession and of Rs. 30,000/­ therefore the present suit in view of the relief claimed by the Plaintiff is properly valued for the purpose of court fees and jurisdiction. Further more the Plaintiff has filed this suit as an indigent person and the matter was returned to be presented before the court of a proper Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 13 of 24 pecuniary jurisdiction and it was presented as such.

28. Thus in view of the above said observations the suit is properly valued for the purpose of court fees and jurisdiction.

29. Thus this issue is decided in favour of the Plaintiff and against the Defendant. Issue no. 3:­ To what relief the Plaintiff is entitled for, in view of submission made in para 14 of the plaint and also the prayer of the Plaintiff? OPP.

30. The onus to prove this issue was on the Plaintiff.

31. Plaintiff in support of his case has examined himself as PW­1 and Sh. Ali Mohammad as PW­2. The present suit has been filed under the provisions of section 6 of the Specific Relief Act. Section 6 of the Specific Relief Act reads as under:­ Suit by person dispossessed of immovable property ­

1. If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof notwithstanding any other title that may be set up in such suit.

2. No suit under this section shall be brought­

(a) after the expiry of six months from the date of dispossession; or Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 14 of 24

(b) against the Government.

3. 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.

4. Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

32. The procedure under section 6 of the Specific Relief Act is summary procedure and its object is to prevent self help and to discourage people to adopt any foul means to dispossess a person. Section 6 enables a person dispossessed of immovable property, otherwise, than in due course of law to recover the possession thereof.

33. If a suit is brought u/s 6 of the Specific Relief Act for recovery of possession no question of title can be raised or determined in that suit or in working out judgment. The object of the section is clearly to discourage forcible dispossession and to enable the person disposed to recover possession by merely proving previous possession and wrongful dispossession, without providing title.

34. In order that the suit can be filed under the provisions of section 6 of the Specific Relief Act the suit is to be presented within 6 months of the date of the alleged Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 15 of 24 dispossession of the Plaintiff. The present suit was filed by the Plaintiff on 20.08.1990 and the alleged date of dispossession of the Plaintiff from the suit property is 23.04.1990. Thus the suit of the Plaintiff is filed within 6 months of the date of the alleged dispossession. The Plaintiff in order to show that he is in entitled to the relief claimed has to show his previous possession over the suit property and has to show that he was wrongfully dispossessed from the suit property by the Defendants. The Plaintiff in support of the alleged fact that he was in possession of the property in dispute is relying upon the rent receipt Ex. PW1/1 which as per him was issued by Defendant no. 1 for Rs. 1,800/­ dated 02.01.1990. However, the Defendant in turn is disputing his signatures over the rent receipt Ex. PW1/1 and therefore the onus has shifted on the Plaintiff so as to prove that the signatures on this rent receipt were that of the Defendant. The Plaintiff has failed to substantiate his averment that the signatures on the rent receipt were that of the Defendant as the Plaintiff has failed to examine in the court other documents duly signed by the Defendant wherein the signatures were admitted or in the alternative has failed to get the signatures analyzed from an hand writing expert which can give an expert opinion. The Defendant in turn has examined one hand writing expert as DW­3 and he in his report has stated that the signatures on the rent receipt do not match with the signatures of the Defendant on the written statement. It is submitted Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 16 of 24 by DW­3 in his report that he has carefully examined and compared the signatures obtained from Ex. PW1/1 that is receipt dated 02.01.1990 and from the written statement of the Defendant and has reached to the conclusion that signatures in Ex. PW1/1 shows that its strokes are full of line quality defects amounting to forgery as these strokes contain faulty per lifts, faulty pen pauses, hesitant motion of hand at long or curved strokes, tremors of fraud, concealed retouching. It is further observed by him that the examination shows different development of handwriting and that the signatures are different in freedom, fluency and continuity in the motion of pen and hand. Both signatures are written with different carelessness and ease as the disputed signature is written with slow and drawn movement of hand whereas the admitted signatures are written fluently and harmonically. It is further observed that the disputed signature is written with heavy pen pressure in comparison to the admitted signatures. It is thus observed by the expert that the similarities found are superficial in nature which only suggests that the forger used genuine signature of the original writer as model signature for preparing the disputed signature. Thus the expert witness has concluded that there are fundamental differences in the two signatures and therefore disputed signature in Ex. PW1/1 is not written by the Defendant who had written on the written statement. The said witness was cross examined by the counsel for the Plaintiff however nothing has Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 17 of 24 come out in the cross examination which can assail the credibility of the witness.

35. Section 45 of the Indian Evidence Act deals with the relevancy of the opinion of experts. Evidence of an expert like any other witness has to be appreciated in accordance with law and is to be accepted only if found trustworthy. It has to be interpreted like any other evidence. Expert however should give clarity, truth and genuineness of a disputed document.

36. In the present case in hand nothing has come out in the cross examination which could assail credibility of the expert witness. Further more the Plaintiff has failed to avail the opportunity for leading evidence in rebuttal qua DW­3. Further more the onus to prove that the signatures on Ex. PW1/1 was on the Plaintiff and the onus was not on the Defendant to disprove his signatures. The Plaintiff has failed to prove that the signatures were those of the Defendant whereas the Defendant has produced an expert witness in his support in order to corroborate his stand that the signatures in Ex. PW1/1 are not his. In view of the same it is held that the Plaintiff is not able to prove Ex. PW1/1 on which he was relying heavily in order to show that he was a tenant of the Defendant at a monthly rental of Rs. 150/­ p.m. in the suit property.

37. In order to prove his possession over the suit property the Plaintiff is further relying upon the copy of his ration card Mark 'A' however, a bare perusal of that ration Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 18 of 24 card shows that it bears cutting and the address of the suit property is written after cutting the address bearing no. A­308, Shastri Nagar, Delhi. This copy of the ration card has been filed by the Plaintiff in order to prove his possession over the suit property however this is a photocopy of the ration card and the original was not produced as it is averred by the Plaintiff that the original ration card was taken by the concerned authorities at the time of the issuance of the new ration card. However, firstly the photocopy of this ration card is not proved as it is a secondary evidence and if it has to be proved the Plaintiff had to call the witness from the concerned department in order to prove the record and secondly this photocopy is bearing cuttings and the address is changed which is not endorsed by any rationing authority. Thus, it is hard to believe that this ration card pertained to the suit property as even if for the sake of arguments one accepts the contention that the address was changed it does not explain as to why was not a new ration card issued which is the practice as per the own averment of the Plaintiff as it is the case of the Plaintiff that the old ration card was taken when new ration card was prepared and therefore he is not in the position to file the original. Thus the Plaintiff has failed to prove even by way of secondary evidence the fact that the ration card Mark 'A' was for the suit property that is B­1677 Shastri Nagar, Delhi. The reliability of the ration card Mark 'A' is further questionable as the Defendant in their Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 19 of 24 evidence have relied upon the earlier litigation between the Plaintiff and one Sh. Balwant Rai Dogra and others. In that litigation mark A, B and C in the testimony of DW­1 the subject matter of the suit was property bearing no. A­308, Shastri Nagar which is striked off from the ration card Mark 'A'. The Plaintiff in his cross examination has admitted that he was a tenant in property no. A­308, Shastri Nagar in April 1990 under Sh. Balwant Rai Dogra he has also admitted the institution of the case titled Vidya Bhushan v. Balwant Rai Dogra in respect of premises bearing no. A­308 Shastri Nagar. Perusal of Mark A which is the copy of the plaint in that suit and against which no suggestion has been put in rebuttal by the Plaintiff during the cross examination of DW­1 shows that in that plaint the Plaintiff is stating that his ration card is bearing number 032538. This number is the same number of mark 'A' that is the photocopy of the ration card produced by the Plaintiff in his deposition. Thus it further gives a dent to the story of the Plaintiff that he was in possession of the suit property in April, 1990.

38. Another document which is relied upon by the Plaintiff in order to show his possession is the original receipt from Delhi Vidyut Board Ex. PW1/2. The said receipt is not bearing any address so as to show that it is pertaining to which property nor is the said receipt proved by the Plaintiff by calling any witness from the Delhi Vidyut Board to prove the relevant record. Though a suggestion is given by the Defendant to the Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 20 of 24 Plaintiff during the cross examination of the Plaintiff that the Plaintiff has procured the said receipt as he was the friend of the son of the Defendant and therefore due to friendly relations son of the Defendant has given the Plaintiff money to deposit the said amount in the Delhi Vidyut Board, however this receipt does not show categorically that there was an electricity meter of the Plaintiff over the suit premises. Though DW­1 in his cross examination has admitted that the Plaintiff has got new electricity connection in respect of the suit premises and a meter was installed in the end of the year 1985­86 however he has further deposed that the said meter was removed within 2­3 days. He has further admitted that the connection was installed on the wall of the disputed premises however, this admission of the Defendant does not prove that the Plaintiff was in possession of the suit premises at the relevant time. Balance of Probability lies in favour of the Defendant and not in favour of the Plaintiff with regard to the factum of possession of the Plaintiff over the suit property.

39. The Plaintiff in order to support his case is further relying upon the police reports filed by him however no action taken by the police against the said reports has been filed by the Plaintiff and the Defendant in turn has filed the certified copy of the judgment of the court of Ld. Metropolitan Magistrate whereby the court has acquitted the Defendant from the complaint of the Plaintiff u/s 380 and 454 IPC. In that judgment the Defendant Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 21 of 24 herein was acquitted.

40. The Plaintiff is further relying upon the site plan of the suit property however it is deposed by the Plaintiff himself that the said site plan was prepared on his instructions by the draftsmen and the draftsmen never visited the site. In view of the same the said site plan cannot be relied upon as it is not a plan in accordance with site. The Plaintiff is further exhibiting the list of articles as Ex.PW1/7 and in order to substantiate that the said articles were lying with him the Plaintiff is relying upon a note book which is allegedly kept by him for keeping record of the transactions of his customers. However perusal of that note book shows that there is nothing in the said note book in order to substantiate that the said note book was maintained by the Plaintiff at the relevant point of time when the alleged cause of action arose or that the note book is not further substantiating that the Plaintiff was operating from the suit property.

41. The Plaintiff in his deposition has admitted that he was a tenant in the property bearing no. A­308, Shastri Nagar however it is his case that he was a tenant with respect to the small kitchen space and he never resided there or carried out any business from the said property. However, perusal of the application of the Plaintiff u/o 33 rule 2 shows that it is pleaded by the Plaintiff that he was left with no belongings after he was dispossessed so his contention that he was using the kitchen space as a store room Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 22 of 24 cannot be relied upon.

42. Plaintiff is support of his case has also examined as PW­2, Sh. Ali Mohammad in order to prove his alleged dispossession however there is a discrepancy in the deposition of PW­2 as he is giving two different versions of the alleged incident as as per his affidavit the incident took place in the intervening night of 22 and 23rd April, 1990 and in his cross he has stated that the incident occurred at about 09:45 AM. The said witness is claiming to be the eye witness however, his credibility with regard to the time of the incident is questionable in view of the discrepancies.

43. In the present case in hand the Plaintiff has to first prove his possession over the suit property and only then can one examine the factum of his alleged forcible dispossession.

44. In view of the above said observations the Plaintiff has miserably failed to prove that he was in possession of the suit property at the relevant point of time or at any point of time whatsoever. Thus as the first requirement of section 6 of the Specific Relief Act is not proved by the Plaintiff the suit of the Plaintiff does not survive. Balance of probabilities cannot be said to be tilted in favour of the Plaintiff.

45. Thus on the basis of the above said observations the Plaintiff is not entitled to the relief prayed for.

Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 23 of 24

46. This issue is decided in favour of the Defendants and against the Plaintiff. Issue no. 4: Relief

47. In view of the findings in issue no. 3 the Plaintiff is not entitled to any relief from the court as the Plaintiff is not able to prove his case.

48. The suit of the Plaintiff is accordingly dismissed.

49. In view of the peculiar facts and circumstances of the case the costs of the suit are awarded to the Defendant.

50. Decree Sheet be prepared accordingly.

51. File be consigned to record room.

Announced in open court on this 29th day of August, 2011.

(Neha Paliwal) Civil Judge­6 Delhi/29.08.2011 Certified that this judgment contains 24 (twenty four) pages and each page bears my signature.

(Neha Paliwal) Civil Judge­6 Delhi/29.08.2011 Suit no. 81/11/90 Vidya Bhushan v. Sagar Chand Page 24 of 24