Delhi District Court
Suit No. 815/06 vs Sh. Jawahar Lal on 17 March, 2015
IN THE COURT OF JITENDRA PRATAP SINGH
CIVIL JUDGE09: TIS HAZARI COURTS: DELHI
Suit No. 815/06
Sh. Puran Chand
S/o Sh. Mool Chand,
R/o T295, Bagh Kare Khan,
Sarai Rohilla, Kishan Ganj,
Delhi - 110007. .............Plaintiff.
Vs
Sh. Jawahar Lal
S/o Sh. Mool Chand,
R/o T289, Bagh Kare Khan,
Sarai Rohilla, Kishan Ganj,
Delhi - 110007. ..........Defendant.
SUIT FOR POSSESSION OF DHABA UNDER SECTION 6 OF SPECIFIC
RELIEF ACT AND FOR RECOVERY OF DAMAGES AND MESNE
PROFITS @ Rs. 3000/ PER MONTH SINCE 18/08/1999 FOR THREE
MONTHS i.e. RECOVERY OF Rs. 9000/ AS MESNE PROFITS.
AND
COUNTER CLAIM OF DEFENDANT FOR INJUNCTION AND
PARTITION
Date of Institution : 21/12/1999
Date of reserving judgment : 23/02/2015
Date of pronouncement : 17/03/2015
Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 1 of 26
JUDGMENT
This Judgment shall decide the suit for possession of the suit property i.e. a dhaba forming a portion of the property bearing no. 295 measuring 90 sq. yds, Bagh Kare Khan, Sarai Rohilla, Kishan Ganj, Delhi which is shown in red colour in the site plan annexed with the plaint. A recovery of Rs.9,000/ along with interest @ 18% per annum pendente lite and future has also been prayed in addition to a decree of future damages and mesne profits. The counter claim of the defendant seeking restraining of the plaintiff from dispossessing the defendant from the said dhaba measuring 10"x10" feet and tin shed of equal measurement in the property no.295 and seeking further restraining him from raising any construction over the said property shall also be decided. The claim of partition of the property as made by the defendant in the counter claim shall also be adjudicated in the instant judgment.
2. Briefly stated the facts of the case of the plaintiff are as follows: The plaintiff is in physical possession of the aforesaid property Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 2 of 26 bearing no. 295 having receiving the possession on 09/10/1978 from one Sh. Ram Lubhaya by way of GPA of the same date executed by him after receiving Rs.13,500/ from the plaintiff. Sh. Ram Lubhaya handed over the physical possession of the property to the plaintiff on 09/10/1978 itself. In the case titled as "Sh. Ram Lubhaya Vs. DDA" through its Estate Officer, the then Ld. District Judge vide order dated 07/05/1963 had fixed the installments of property bearing no. 295 as Rs. 15/ per month as assessment for damages of possession of the said land. The property measures 90 sq. yds and the plaintiff had constructed two shops and a room on the ground floor in front of the shop and over half of the room, there was a tin shed. He also constructed first floor including two rooms, kitchen, open space in front of kitchen and an open roof on the dhaba / shop for his residence (sic.). The plaintiff had received the notice dated 07/05/1979 under Section 4 of the Public Premises Act from the DDA and vide order dated 04/02/1980, he was directed to pay Rs.3,834/ as damages for unauthorized occupation of the property bearing no. 295. A similar demand of Rs. 18,865.26/ was made vide notice dated 26/02/1986. The DDA regularized and authorized the plaintiff's possession of the suit Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 3 of 26 property and he has been in exclusive and uninterrupted possession of the same. He raised construction on the aforesaid property with his own funds.
It is stated by the plaintiff that he started running a Kerosene Oil Depot in one of the two shops and a sweet shop under the name and style of Sanjay Sweet Shop from the other. Subsequently, the sweet shop was converted into a dhaba which was being run with the help of Sh. Sanjay Kumar, the son of the plaintiff. Due to his indisposed health, the plaintiff kept his real brother i.e. the defendant in the said dhaba for seeking his help in running the same. In the month of July 1999, the relationship with the defendant became strained and the plaintiff and his son were thrown out of the said dhaba by the defendant on 18/08/1999. Upon opposition, the defendant threatened that he will not allow any member of the plaintiff family to run the said dhaba. Since 18/08/1999, the defendant has been retaining the possession of the said dhaba as its unauthorized occupant and has not handed over its possession to the plaintiff despite several requests of the plaintiff including the legal notice dated 06/10/1999 served upon him. It is then the present suit was filed. Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 4 of 26
3. In his written statement cum counterclaim, the defendant has raised the following preliminary objections :
1. The suit is not maintainable under Specific Relief Act as the defendant has been in actual possession of the suit property since 1978 along with the plaintiff and the property has never been partitioned till that date.
2. The suit is bad for want of proper and necessary parties i.e. the DDA, Union of India and Director (Slum).
3. The suit is barred by limitation.
4. The defendant has been in adverse possession of the property openly and against the plaintiff and hence, it has become its owner qua the plaintiff.
5. The plaintiff has not specified the property correctly and is disturbing unlawfully the possession of the defendant by attempting to Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 5 of 26 encroach over the first floor premises as the defendant is in possession of the entire front portion consisting of a dhaba measuring 10ft by 10ft and the shed measuring 18ft by 10ft. It is to restrain the plaintiff from encroaching the said portion of the property that the counter claim was filed.
4. On merits, it is stated that the defendant has been in implied possession of the property throughout being the brother of the plaintiff and a member of the joint family and the property has never been partitioned. He also stated to have become an owner in possession by way of adverse possession for the last more than 12 years to the exclusion and knowledge of the plaintiff. It is stated that the parties are real brothers and being the head of the family, it is possible that the plaintiff might have received the notices earlier. Subsequently, the defendant has also been served with the notices. It is stated that the suit is barred by limitation. It is stated that the plaintiff and the defendant are in occupation of the suit property jointly and Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 6 of 26 the defendant's possession is hostile to the plaintiff since 1978 and the entire property is liable to be partitioned in equal portions as the damages has been paid to the DDA by the plaintiff and the defendant from the joint funds of the family. It is stated that the parties jointly constructed the building over the plot with their joint funds. The fact of the plaintiff ever running a sweet shop in the property was denied and it is stated that the defendant alone is running the dhaba in question and Sh. Sanjay Kumar has no right, title or interest in the property which belongs to the DDA / Union of India / Slum Department. It is stated that the defendant is running the said dhaba independently and neither the plaintiff and his son has any concern with the same. Rest of the averments of the plaint were denied and it is prayed in the counterclaim that the plaintiff be restrained from dispossessing the defendant from the dhaba situated on the land 10"x10" and tin shed measuring equally which are in possession of the defendant. It is further prayed that the plaintiff be also directed to pay the Court fees for partition of the property by metes and bounds and to hand over the remaining possession of the suit property to the defendant. Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 7 of 26
5. In the written statement to the counterclaim, the averments of the said counterclaim have been refuted and its dismissal has been prayed.
6. In the replication, the contents of the written statement has once again been denied while those of the plaint were reaffirmed. It is denied that the defendant is living jointly with the plaintiff and it has been stated that he has been living separately and independently with his family at premises bearing no. 289, Bagh Kare Khan, Kishan Ganj, Delhi. It is further denied that the defendant had made any contribution in any manner to the purchase or construction of the property.
7. On completion of the pleadings, the then Ld. Predecessor of this Court framed the following issues on 08/07/2002 :
1. Whether the suit is bad for nonjoinder of necessary and proper parties ? OPD.
2. Whether the suit is barred by limitation ?
OPD.
3. Whether the defendant is in adverse Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 8 of 26 possession of the suit property of the plaintiff ? OPD.
4. Whether the valuation of suit and counter claim is proper for the purpose of Court fees & jurisdiction respectively ? Onus on both parties.
5. Whether the plaintiff was in possession of the suit property on 18/08/1999 and was dispossessed by the defendant ? OPP.
6. Whether the plaintiff is entitled for a decree of possession as prayed for ? OPP.
7. Whether the plaintiff is entitled for a decree of damages for Rs. 9000/ as claimed along with interest ? OPP.
8. Whether the plaintiff is entitled for future damages ? If so, at what rate and for which period ? OPP.
9. Whether the defendant is entitled for a decree of injunction and partition as claimed in the counterclaim ? OPD.
10.Relief.
8. Thereafter, upon demise of the plaintiff, his legal Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 9 of 26 representatives were permitted to bring on record on 09/09/2014.
9. Sh. Sanjay Kumar, the son of the plaintiff was examined as PW1. In his evidence by way of affidavit, he reiterated the averments of the plaint and he relied upon the following documents :
1. Photocopy of the certified copy of the Judgment dated 07/05/1963 as Ex. PW1/1.
2. Photocopy of GPA dated 09/10/1978 as Ex.
PW1/2 (OSR).
3. Photocopy of the Will dated 09/10/1978 as Ex.
PW1/3 (OSR).
4. Photocopy of the receipt dated 09/10/1978 as Ex. PW1/4 (OSR).
5. Site plan of the suit property as Ex. PW1/5.
6. Photocopy of three notices of the DDA as Ex.
PW1/6 to Ex. PW1/8 (all OSR).
7. Photocopy of various receipts of DDA as Ex.
PW1/9 to Ex. PW1/25 (OSR).
8. Carbon copy of legal notice dated 06/10/1989 along with its postal receipts, UPC receipts and AD card as Ex. PW1/27 to Ex. PW1/30.
9. Photocopy of the license of M/s Sanjay Sweet Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 10 of 26 Shop as Ex. Y.
10.Photocopy of medical handicapped certificate of the said witness as Ex. PW1/26 (OSR).
11.Photocopy of medical prescription and death certificate as Ex. PW1/31 and Ex. PW1/32 respectively.
12.Various photographs as Mark A to D.
10. Smt. Chinta Devi, the widow of the plaintiff was examined as PW2. In her evidence by way of affidavit, she had reproduced the averments of the plaint and had relied upon the documents already exhibited as Ex. PW1/5 to Ex. PW1/27.
11. The defendant produced himself as DW1 and stated in his evidence by way of affidavit the facts already averred in the written statementcumcounterclaim. He relied upon the photocopy of license for running the dhaba issued by the Deputy Commissioner of Police as Mark A and the receipts for payment of renewable fees as Mark B. He also relied upon the record of the said establishment in his name as Mark C and the MCD receipt for Rs. 1400/ dated 20/11/1998 as Mark D. Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 11 of 26
12. Sh. Satish Kumar, the common acquaintance of the parties was examined as DW2 who stated in his evidence by way of affidavit that he knew the parties since childhood and both the brothers were running their shops separately at House No. 289. That the defendant is running his dhaba independently without any interference from Sh. Puran Chand whose sons after his death were holding their shops in their premises. He further deposed that there had been no quarrel between the said two brothers on the site of the shop and the defendant was still holding the shop undisputedly carrying out his work therefrom even after the death of the plaintiff. The LRs of the late plaintiff are stated to be residing in the premises no. T259 while the defendant has been stated to be residing in the premises no. 289.
13. Another acquaintance of the parties namely Sh. Sunder Lal was examined as DW3 who stated in his evidence by way of affidavit that the parties are real brothers and they had been holding their separate shops in premises no. 295. He deposed that the defendant is having a Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 12 of 26 valid municipal license and police license which was seen by the witness hanging in the shop of the defendant which it visits very often. He stated that the brothers have never disputed and quarreled regarding running of the shop by the plaintiff or by the defendant separately. It was stated that prior to this dispute which came to the knowledge of the witness recently, the parties were holding their said shops and he was under an impression that they are a joint family from the beginning till date. All the witnesses were crossexamined by the respective opponent counsels.
14. I have heard the Ld. Counsels and have perused the case file. My issue wise findings are as follows : Findings on Issue No. 1 Whether the suit is bad for nonjoinder of necessary and proper parties ? OPD.
The onus to prove this issue was placed upon the defendant. The defendant in his written statementcumcounter claim has contended that the DDA, Union of India and the Director (Slum) are necessary parties to the suit as the defendant has been served with the Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 13 of 26 notices of damages and eviction by the DDA. He stated that in absence of the said parties, the suit is bad as they are proper and necessary parties to the suit.
A necessary party is one without whom no decree can be passed effectively while a proper party is one whose presence would enable the court to completely, effectively and adequately adjudicate the matter although it is not a necessary party.
In the present case, it is the claim of the plaintiff that he was in physical possession of the suit property where from he was forcibly dispossessed by the defendant. The instant suit is filed under Section 6 of the Specific Relief Act and as such, the question of title of the property is not material before this Court. In these circumstances, the DDA, Union of India and Directors (Slum) of the Govt. of NCT of Delhi are neither necessary nor proper parties to the suit. The presence of these parties is not required for the court to pass an effective order deciding the dispute involved in the suit.
For the aforesaid reasons, the issue stands decided against the defendant.
Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 14 of 26 15. Findings on Issue No. 2
Whether the suit is barred by limitation ? OPD.
Onus to prove this issue was placed upon the defendant. It is stated by the defendant in his written statementcum counter claim that the suit is barred by the Limitation Act as a suit under Section 6 of the Specific Relief Act can be filed only before the expiry of six months from the date of dispossession which is not so in the present case as the defendant has been in possession of the suit property for the last several years and he had even got the municipal licence and Certificate of Registration of the Eatry House Right from 11.11.1998 and even prior to that i.e. from 15.02.1998. It has next been contended that he has been in adverse possession of the property qua the plaintiff since the year 1978.
The defendant has not produced even a single document either in original or as a certified copy where from it can be inferred that he was in possession of the suit property as alleged since the year 1978 or from 15.02.1998. As an explanation for not filing any such document he has stated that the documents from 1987 till 1995 have been stolen Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 15 of 26 simultaneously stating that no complaint for theft of such documents was ever lodged. Apart from himself, he has produced two local residents who have stated in their affidavits that the defendant has been running his dhaba independently without any interference from the plaintiff. The DW3 Sh. Sunder Lal had stated in his crossexamination that he had been seeing the defendant running the dhaba for the last 35 years.
On the other hand, the only documentary evidence which the plaintiff has produced in support of his possession of the suit property is the registration of card of Bulk Consumer Demand of Sugar in the name of M/s Sanjay Sweets Shop. This document records three dates i.e. 27.09.1980, 26.10.1980 and 03.11.1980 when purportedly the bulk quantity of sugar was purchased. However no witness has been produced who could have proved this document and once the plaintiff is not the author of the said document, the same remains unproved. Even otherwise, this document pertains to the year 1980 and on the basis of the same it cannot be said that on the date of his alleged dispossession the plaintiff was running the dhaba in question from the suit property.
In is crossexamination dated 31.08.2010 the PW1 Sh. Sanjay Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 16 of 26 has admitted that he had no proof that his father i.e. the deceased plaintiff was running the said hotel. In the crossexamination dated 04.02.2008 he admitted that the challans issued by the Police and the Corporation against the dhaba had been paid by the defendant. He also admitted categorically that the defendant was running the dhaba himself since very beginning, however, immediately he stated again that his father was running the dhaba for which the witness was not having any proof. He further stated the he did not know as to how much portion of the property is in the occupation of the defendant or whether there was any tin shed over the portion in possession of the defendant. He admitted that the DDA had sent notice of damages to all the occupants including the defendant and as such the reliance of the plaintiff upon certain notices of the DDA loses significance. The plaintiff has not been able to produce before the court any complaint made to the Police of any other institution of the State against his forcible and unlawful dispossession by the defendant from the suit property. No explanation has been given as to why no such complaint was ever made.
PW2 Smt. Chinta Devi in her crossexamination dated Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 17 of 26 29.05.2013 had admitted that since 22.07.1994 an electricity connection is there in the name of the defendant at the address of the suit property. She stated that when the plaintiff had gone to attend a marriage, the defendant had illegally possessed the suit property in the night by putting his shutter thereon. Although she did not remember the year of the said incident, however, it was stated to be about 15 days after the marriage of the defendant which was in the year 1979. The above stated testimony of PW1 and PW2 demolishes the case of the plaintiff that it was in the month of August 1999 that the plaintiff was dispossessed unlawfully from the suit property. When considered in light of the testimony of DW2 and DW3 there remains no doubt that the defendant was in possession of the suit property much prior to August 1999 as alleged in the plaint. A perusal of the electricity bill dated 24.01.2012 Ex.PW2/D1 which pertains to the suit property and is issued in the name of the defendant reveals that the electricity connection was energized on 22.07.1994 and this further leads this Court to hold that the defendant was in possession of the suit property at least since 1994. Accordingly, the present suit filed under Section 6 of the Specific Relief Act is clearly barred by law of limitation as the suit has Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 18 of 26 not been filed within six months of dispossession of the plaintiff.
Issue stands decided in favour of the plaintiff. 16. Findings on Issue No. 3 Whether the defendant is in adverse possession of the suit property of the plaintiff ? OPD.
The onus to prove this issue was placed upon the defendant. The defendant has stated in his written statementcumcounter claim that he had been in adverse possession of the suit property openly and adversely to the plaintiff since 1978 and he has become its owner.
On the other hand, subsequently in the written statement he stated that the property is a joint family property which has never been partitioned and it is on the basis of the same that he had prayed for partition in the counterclaim. The plaintiff had stated himself to be the owner of the suit property.
The Hon'ble Supreme Court of India in case of "Thakur Kishan Singh Vs. Arvind Kumar" (1996) 6 SCC 591 has held that a possession of a coowner or of a licensee or of a agent or a permissive possession to Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 19 of 26 become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner. Mere possession for a long time does not result in converting permissive possession into adverse possession.
In the present case, the defendant has stated that since 1978 he has been in possession of the suit property which is hostile, open and adverse to the plaintiff. The plaintiff has failed to refute or rebut the factum of the possession of the defendant, however, the defendant has also failed to establish before the court the acts which have been committed by him qua the suit property from which this court could infer that the possession of the defendant was adverse or hostile to the plaintiff. Moreover, on the basis of plea raised by the defendant it has not been established strictly before the court that his possession over the property was hostile to the plaintiff. In absence of any such proof, it cannot be said that the defendant's possession over the suit property is in the nature of adverse possession.
Issue stands decided against the defendant.
Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 20 of 26 17. Findings on Issue No. 4 Whether the valuation of suit and counterclaim is proper for the purpose of Court fees & jurisdiction respectively ? Onus on both parties.
Onus to prove this issue was placed upon both the parties. The plaintiff has valued the suit for the relief of possession at Rs.1 lac i.e. half of the market value of the dhaba in question and ad valorem for the relief of damages. The defendant has stated that the suit has not been valued properly for the purposes of court fees and jurisdiction. No evidence has been led by the defendant to show that the valuation as made by the plaintiff does not conform to the market value of the suit property. Hence, it cannot be said that the plaint has not been valued properly for the purposes of court fees and jurisdiction.
On the other hand, no valuation clause has been stated by the defendant in his counterclaimcumwritten statement with respect to the counterclaim. Accordingly prima facie the counterclaim has not been valued properly.
Issue stands decided in favour of the plaintiff and against the Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 21 of 26 defendant.
18. Findings on Issue No. 5
Whether the plaintiff was in possession of the suit property on 18/08/1999 and was dispossessed by the defendant ? OPP.
The onus to prove this issue is placed upon the plaintiff. The evidence to be considered for the purpose of this issue has already been considered by this Court while deciding the issue no.2 herein above. It would be repetitive if the evidence is discussed again in the instant issue. As noted in issue no.2 herein above, the plaintiff has failed to show that he was in possession of the suit property on 18.08.1999 and consequently it cannot be said that he was dispossessed by the defendant.
Issue stands decided against the plaintiff.
19. Findings on Issue No. 6, 7 and 8 Whether the plaintiff is entitled for a decree of possession Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 22 of 26 as prayed for ? OPP.
Whether the plaintiff is entitled for a decree of damages for Rs. 9000/ as claimed along with interest ? OPP.
Whether the plaintiff is entitled for future damages ? If so, at what rate and for which period ? OPP.
The onus to prove these issues was placed upon the plaintiff and since issues are inextricably linked to each other, they are dealt with jointly.
In order to seek the relief of possession, damages and future damages the plaintiff was required to show that he was in possession of the suit property on the date of his alleged dispossession by the defendant there from. As noted in issues no. 2 and 5 herein above, the plaintiff has failed to show such possession and accordingly he cannot be held entitled either to the possession or damages or future damages, issues stand decided against the plaintiff.
20. Findings on Issue No. 9 Whether the defendant is entitled for a decree of Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 23 of 26 injunction and partition as claimed in the counterclaim ? OPD.
The onus to prove this issue was placed upon the defendant. The defendant has prayed that the plaintiff be restrained from dispossessing the defendant from the dhaba in question measuring 10 x 10 feet and a tin shed of similar dimension which is in possession of the defendant in property no.295, Bagh Kare Khan, Kishanganj, Delhi in any manner and further from raising any construction over the property of the defendant.
The defendant has not filed any site plan describing the said property with respect to which the relief has been claimed. As per the case of the plaintiff the defendant is admittedly in possession of the aforesaid dhaba measuring 10"x10" feet as shown in red colour in the site plan Ex.PW1/5. Since the defendant has failed to show any title to the said dhaba the plaintiff cannot be restrained indefinitely or infinitely from dispossessing the defendant from the said dhaba. Moreover, the defendant has not stated in the written statement that the plaintiff has made any attempt of unlawful dispossession of the defendant from the said dhaba. The plaintiff has already availed off the legal remedy by way Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 24 of 26 of present suit claiming the possession of the said dhaba and accordingly in absence of any specific allegation of unlawful and forcible dispossession the claim of injunction qua the said dhaba appears to be without any cause of action. In absence of the defendant proving on record his possession over the aforesaid tin shed, this Court cannot grant any relief qua the same.
As regards to the relief of partition of the property no.295, the defendant was required to establish that the same was a joint family property which has not been established by way of independent evidence or from crossexamination of the plaintiff's witnesses. In these circumstances, the relief of partition cannot also be granted in favour of the defendant.
Issue stands decided against the defendant.
21. Relief.
As a sequel to the aforesaid discussions and decisions of the issues, this court is of a conclusion that both the plaintiff and the defendant have failed to establish their respective cases before this court. As a result Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 25 of 26 thereof the plaint and the counter claim are dismissed. Parties to bear their own costs. Decree sheet is directed to be prepared accordingly. File be consigned to record room after necessary compliance.
Announced in the open court
on 17.03.2015 (Jitendra Pratap Singh)
Civil Judge, Central (09)
Tis Hazari Courts, Delhi
This judgment consists of 26 pages and all the pages are duly signed by me.
Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 26 of 26
Suit No : 815/06
17.03.2015
Present : None
Vide a separate Judgment of even date, both the plaint and the counter claim are dismissed. Parties to bear their own costs. Decree sheet is directed to be prepared accordingly. File be consigned to record room after necessary compliance.
(Jitendra Pratap Singh) Civil Judge, Central (09) Tis Hazari Courts, Delhi 17.03.2015 Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 27 of 26 Suit No : 815/06 Puran Chand Vs. Jawahar Lal Page 28 of 26