Delhi District Court
Sh. Madan Lal Duggal vs Smt. Sharda Devi Aggarwal on 26 October, 2009
IN THE COURT OF Dr. KAMINI LAU
ADDL. DISTRICT JUDGE13: CENTRAL : DELHI
RCA No. 53/2009
Sh. Madan Lal Duggal
S/o Sh. Kedar Nath Duggal
R/o 3, Chanan Singh Park,
First Floor, Delhi Cantt.10.
..........Appellants
VERSUS
1. Smt. Sharda Devi Aggarwal
W/o Sh. Krishan Kumar Aggarwal
R/o RZ85, Dashrathpuri, New Delhi.
2. Sh. Ramesh Dayal Yadav,
S/o Sh. Chander Bhan
R/o RZ85, Dashrathpuri, New Delhi.
3. Sh. Anil Bakshi,
S/o not known
R/o RZ17, Dashrathpuri, New Delhi,.
4. Municipal Corporation of Delhi,
through its Commissioner, Delhi
Service through City Zone, Najafgarh, Delhi.
5. SHO, PS Dabri,
New Delhi45.
..........Respondent
1
Date of Institution : 20.01.2003
Arguments heard on : 23.09.2009
Date of Decision : 26.10.2009
: J U D G M E N T :
This appeal is directed against the judgment / decree of the Ld. Civil Judge dated 16.12.2002 in the suit filed by the appellant Madan Lal Duggal for permanent injunction seeking to restrain the respondent no. 1 to 4 i.e. Sharda Devi Aggarwal, Rameshwar Dayal, Anil Bakshi and Municipal Corporation of Delhi, their agents, associates and employees from taking illegal and forcible possession in any way of plot No. 85, Khasra NO. 10, measuring 300 Sq. Yds. situated in colony known as Dashrathpuri, New Delhi, and further to restrain the Municipal Corporation from making any road on the said plot and also for restraining defendant no. 5 i.e. SHO, PS Dabri, New Delhi from interfering in peaceful possession of plaintiff till the disposal of the present case.
The case of the appellant is that he was in possession of the Plot No. 85 vide sale deed daed 2.3.1974 executed by Sh. Risal 2 Singh son of Budha of village Dabri and got muted the said plot in his name in the revenue record on 29.4.1977. According to the appellant he has sold half portion of the said plot on 19.11.1985 to Sh. Rameshwar Dayal Yadav and Smt. Sharda Devi Aggarwal i.e. respondent no. 1 & 2, and as per the allegations, the said respondents have intended to grab the remaining portion of the appellant by opening the doors of their houses and shops in connivance with the bad elements and with the help of respondent no. 3. According to the pleadings of the appellant, the respondent no. 1 first removed all the bricks from the boundary wall and one temporary room belonging to the appellant which room was earlier situated in the corner of the plot.
It is admitted by the respondents that the colony where the land is situated is unapproved but according to the appellant the Municipal Corporation is constructing road on the remaining portion of the plot and the respondent no. 3 is supporting them in this regard. These allegations have been denied by the respondents 3 who have pleaded that the appellant is not in possession of even an inch of the land as the said land has been sold to them. It is pleaded that the land which the appellant is now claiming is actually 30 ' wide road which is being used by other respondents of the other persons of the locality for egress and ingress purposes. The various other allegations regarding removal of the bricks etc. have also been denied by the respondents.
The Ld. Trial Court had dismissed the suit of the appellant on the ground that the appellant / plaintiff before trial court i.e. Madan Lal Duggal has personally not appeared before the trial court to prove his case. It was further observed that the plaintiff / appellant failed to established the identity of the suit land. Now before this court, various grounds have been raised by the appellant who has challenged the judgment / decree of the Ld. Trial Court. It is pleaded that the Ld. Trial Court had failed to appreciate that the Municipal Corporation has not led any evidence with regard to any of the objections taken by them in the written 4 statement and the entire relief claimed by the appellant / plaintiff before trial court had gone unrebuttal and in so far as the relief against the municipal corporation regarding encroachment or construction of road was concerned. It is further pleaded that the Ld. Trial Court had failed to appreciate that even the respondent nos. 1, 2 & 3 did not lead any evidence and it is the appellant who sold half portion of the land to respondent no. 1 and 2. It is stated that the Ld. trial court has travelled beyond the scope and the findings are against the facts and circumstances on record. It is also stated that Ld. trial court had failed to appreciate that the witness of the appellant i.e. PW1 has proved the layout plan of the colonizer, which has not been challenged.
A detail reply has been filed to the said appeal by the respondent no.1, wherein she has denied the various grounds raised by the appellant. According to her the appeal nothing but abuse of the process of law and the appellant has no locus standi. According to the respondent no.1 the appellant is no longer in possession of 5 any piece of land nor he has any concern with the suit land. She has stated that only intention of the appellant is to harass the respondent and pressurize her accede to the illegal and unjustified demands. It is pleaded by the respondent no. 1 that she has constructed her house in a 50 sq. yds. plot which she had purchased from the appellant for a consideration which is consisting of a shop, boundary wall, and residential rooms, latrine and bath, since long and objection has been filed by the appellant when she was trying to renovate the existing structure and white wash the same. According to the respondent no.1 the colony where the suit land is situated is not an approved colony and the houses are constructed without any sanction plan and she has not violated the provisions of DMC Act or its building bye laws. It is stated that she had purchased only a portion of the plot bearing no. 85 measuring about 50 sq. yds. in which she has one shop, gate, rooms having doors and boundary wall etc. and the opening of the said shop, rooms and remaining plot is on western side where there is 30 ft. wide Gali, 6 which opening is from the beginning and is being used for egress and ingress purposes of the premises. She has stated that Gali is a road where cable lines, electricity cables, sewage, water are being laid. According to the respondent no. 1, the whole plot measuring about 600 sq. yds. was owned by the appellant, part of which he has sold to one J. P. Gupta, Ravi Kumar etc. and rest of the plot was left by him on western side. The respondent no.1 has also not filed any site plan showing the existing possession at the site.
I have considered the submissions made before me. I have also gone through the trial court record, testimony of Rajiv Duggal the only witness examined by the appellant and also the written synopsis of arguments placed before me. Firstly, it is evident from the record that Madan Lal Duggal has not appeared before this court rather it is his son Rajiv Duggal who has appeared on his behalf as is attorney. The law in this regard is very clear. The attorney cannot take place of principal and the testimony of the attorney only to the extent of his personal knowledge can be 7 accepted.
In this regard the Hon'ble Apex Court had in the case of Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. reported in AIR 2005 SC 439 observed in para 13 that:
"Order III Rules 1 & 2, CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts"
employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts"
would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal 8 is entitled to be crossexamined."
In para 15 of this judgment it has been held that :
"Apart from what has been stated, this Court in the case of Vidhyadhr Vs. Manikrao and another, (1999) 3 SCC 573 observed at page 583 SCC that "where a party to the suit does not appear in the witness box and states his own case on oath and does not, offer himself to be crossexamined by the other side, a presumption would arise that the case set up by him is not correct."
The Hon'ble court has further observed in Para 17 & 18 that :
"On the question of power of attorney the High Courts have divergent views. In the case of Shambu Dutt Shastri Vs. State of Rajsthan 1986 9 (2) WLL 713 it was held :
that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself 'To appear' in a witness box is altogether a different act. A general power of attorney holder can not be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff."
"The aforesaid judgment was quoted with the approval in the case of Ram Prasad Vs. Hari Narain & Ors. Air 1998 Raj. 185. It was held that the word "acts" used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appears a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case 10 he can state on oath but he cannot appears a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a Commissioner for recording his evidence may be issued under the relevant provisions of the CPC."
Also in para 21 of this judgment it was observed that :
"We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri (Supra) followed and reiterated in the case of Ram Prasad (Supra) is the correct view. The view taken in the case of Floriano Armando Lut's 2002(2) BombayCR 754 cannot be said to have laid down a correct law and is accordingly overruled."
Therefore applying the aforesaid settled principle of law to the facts of the present case, the testimony of Rajiv Duggal is admissible only to the extent of his personal knowledge and can be 11 read into evidence to this limited extent.
Secondly, it is evident from the record that PW1 Rajiv Duggal has not brought the complete fact before this court. He has shown his complete ignorance regarding the sale of the plot to the Rameshwar Dayal or anybody else. Thirdly, he has not been able to establish the identity of the area alleged to have been purchased vide sale deed dated 2.3.1974. Even in the sale deed the exact area of Khasra No. 10 of village Dashrathpuri has not been mentioned. Fourthly, the sale deed is not accompanied by any site plan. What has been produced before the court is only layout plan of the colony which even otherwise has not been proved. Therefore, no reliance can be placed on it. Lastly, in order to persue the discretionary relief of injunction, the plaintiff is required to prove his legal rights. In the present case PW1 has neither able to prove or establish the legal right of the plaintiff on the portion now legally occupied by the respondent no. 1 & 2 nor he has deposed anywhere about the attempts made by the respondents to grab his property as alleged. 12
In view of my above discussions, I find no infirmity in the judgment / decree of the Ld. Civil Judge dated 16.12.2002. The appeal is hereby dismissed. Decree sheet be prepared accordingly. Trial court record be sent back alongwith copy of this order. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 26.10.2009 Addl. District Judge: Delhi 13 RCA No. 53/2009 Madan Lal Duggal Vs. Sharda Devi Aggarwal 26.10.2009 Present: None.
Vide my separate detailed judgment dictated and announced in the open court, the appeal is hereby dismissed. Decree sheet be prepared accordingly. Trial court record be sent back alongwith copy of this order. File be consigned to Record Room.
(Dr. Kamini Lau) ADJ Delhi /26.10.2009 14