Delhi District Court
Sh. Kedar Nath Kohli vs Sh. Sardul Singh on 7 December, 2011
1
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 12,
TIS HAZARI COURTS, DELHI.
RCA No. 29/11
Unique ID no. 02401C0569242011
Sh. Kedar Nath Kohli
S/o Late Sh. Mehar Chand Kohli
R/o B3/429, Paschim Vihar,
New Delhi. ...Appellant
Versus
1. Sh. Sardul Singh
Shop No. 1878, Gurudwara road,
Kotla Mubarakpur,
New Delhi.
2. Sh. Baldev Singh
S/o Sh. Kartar Singh
R/o 15, Hemkunth Colony,
New Delhi110048. ...Respondents
Date of institution of appeal: 10.11.2006
Date of reserving judgment: 25.11.2011
Date of pronouncement of judgment: 07.12.2011
JUDGMENT:
1. This is an appeal U/s 96 read with order 41 of CPC, against the Judgment/Decree dated 21.09.06, passed by the Ld. Kedar Nath Vs. Sardul Singh RCA. No. 29/11 1 of 43 2 Civil Judge, whereby the suit of the appellant ('plaintiff' before the ld. Trial Court) for recovery of possession was dismissed.
2. The instant appeal has been filed with an application under Order 41 Rule 3A and section 151 of the Code of Civil Procedure read with section 5 of the Limitation Act for condonation of delay in filing the appeal which was allowed by my ld. predecessor vide order 20.12.2008.
3. My ld. predecessor vide order 11.05.2010 was pleased to allow the parties to lead additional evidence. The matter was sent to the ld. trial court for recording of the additional evidence and as such APW1 Bir Singh, AZI, of MCD, Central Zone; APW2 Sunil Kumar , UDC from the office of Sub Registrar, Kashmere Gate; AW3 Shri Naveen, Record Keeper from Delhi Archives were examined by the appellant. The respondent examined RW1 Shri Radhey Shyam, Record Keeper, O/O SubRegistrarV, Mehrauli, New Delhi and RW2 Shri Ram Prasad were examined.
4. Briefly stated the necessary facts are as under: Previous Suit Kedar Nath Vs. Sardul Singh RCA. No. 29/11 2 of 43 3
5. The father of the appellant namely Late Sh. Mehar Chand Kohli, had earlier filed a civil suit no. 303/1969 against M/S Narang Overseas Pvt. Ltd. as well as the present defendants claiming possession of the plot no. 27 bearing municipal no. 1443 situated in Wazir Nagar, Gali No. 7, Kotal Mubarakpur, New Delhi alongwith the land adjoining the said piece of land. The said suit was filed by the late father of the appellant, on the ground that he was the absolute owner of the said property and that the defendants were in illegal and wrongful possession of the said property. The said suit was decreed by the Court of Shri V. S. Aggarwal, Ld. SubJudge Ist Class, Delhi (as his Lordship then was) against M/S Narang Overseas Pvt. Ltd. but dismissed against the other defendants vide judgment/decree dated 04.09.1971. On a challenge by M/S Narang Overseas Pvt. Ltd. the said decree was declared to be a nullity by the Court of Shri V. K. Jain (as his Lordship then was) vide judgment and decree dated 15.08.1980 holding the judgment null and void on the ground that the former court lacked the inherent jurisdiction for want of permission as required under section 19 of the Slum Kedar Nath Vs. Sardul Singh RCA. No. 29/11 3 of 43 4 Areas Act.
The instant Suit
6. The suit in which the present appeal has been filed was instituted by the father of the appellant in the year 1975 claiming possession of the plot no. 27 bearing municipal no. 1443 situated in Wazir Nagar, Gali No. 7, Kotla Mubarakpur, New Delhi along with the land adjoining the said piece of land. (hereinafter referred to as the 'suit property'). It was also mentioned in the plaint that he also paid land tax for the aforesaid property bearing no. 1443 situated at Gali No. 7, Wazi Nagar Kotla Mubarakpur, New Delhi.
7. Sh. Mehar Chand Kohli died during the pendency of the suit. An application was preferred u/o 22 Rule 3 of the Code of Civil Procedure by the present appellant, Sh. Kedar Nath Kohli, for impledment, being the son of and claiming substitution in place of Late Sh. Mehar Chand Kohli in view of registered Will dated 31.12.79, executed by Late Sh. Mehar Chand Kohli. The said application was contested by the respondents and thus issue was framed and evidence was led. Kedar Nath Vs. Sardul Singh RCA. No. 29/11 4 of 43 5 The said application was allowed vide order dated 02.02.1982. The present appellant was substituted as plaintiff being Legal Representative of Late Sh. Mehar Chand Kohli. An amended plaint, consequent upon such substitution, was filed. The appellant thus stepped into the shoes of his father, the original plaintiff.
8. Both the defendants filed their separate written statements in the aforesaid suit.
9. Amongst others, primarily, the defendant no. 1 stated that he is in physical possession of the property constructed on a part of plot no. 1443 in his own right and the plaintiff has got no connection whatsoever over the property owned and possessed by the defendant no. 2. He had also challenged the valuation of the suit and also alleged that the suit was barred by the principles of resjudicata in view of the dismissal of earlier suit no. 303/1969. On merits he alleged that he is the owner of plot no. 1443 having purchased the same from Shri Dharam Pal S/o Sh. Haweli Ram vide sale deed dated 15.08.1966.
10. The defendant no. 2 in his separate statement made Kedar Nath Vs. Sardul Singh RCA. No. 29/11 5 of 43 6 similar averments on the line of defendant no. 1.
11. By way of amendment to the written statement the respondents brought on record a plea that the Municipal Corporation of Delhi due to inadvertence gave plot no. 1443 to two properties. On realization of the mistake the property of respondents was given municipal no. as 1443A. The property of respondent is measuring 295 sq. yards.
Issues before the Ld. Trial Court
12. On the pleadings of the parties, vide minutes of proceedings dated 22.09.1976, following issues were framed by the Ld. Trial Court:
i) Whether the plaintiff is absolute owner of plot no. 27, now bearing municipal no. 1443, Wazir Nagar, Gali No. 7, Kotla Mubarkarpur, New Delhi? OPP
ii) Whether the defendants have illegally tresspassed on land in question? If so, its effect? OPP
iii) Whether the suit is properly valued Kedar Nath Vs. Sardul Singh RCA. No. 29/11 6 of 43 7 for the purpose of court fees and jurisdiction? OPP
iv) Whether the suit is barred by the principle of resjudicata as alleged in para 5 of written statement? OPD
v) Whether the plaintiff is estopped from filling the suit as alleged in para 3 of written statement? OPD
vi) Relief.
13. The issue nos. 3 is regarding the valuation of the suit which was decided by the Court of Sh. G.D. Dhanuka, Sub Judge 1st Class, Delhi vide order dated 16.11.77. The valuation of the suit property was assessed at Rs. 13,000/ and the appropriate Court fee has been paid up. The finding has remained unchallnaged.
14. Another suit bearing no. 303/1969 wherein the respondents were also impleaded as parties besides M/s Narang Overseas Pvt. Ltd. vide judgment dated 04.09.71 was decreed by Sh. V. S. Aggarwal, the then Sub Judge 1st Class, Delhi (as Kedar Nath Vs. Sardul Singh RCA. No. 29/11 7 of 43 8 his Lordship then was) against the defendant no. 1 i.e. M/s Narang Overseas Pvt. Ltd. The suit was dismissed against the other defendant out of which two are the respondents in the present suit. The said judgment dated 04.09.1971 was impugned by M/s Narang Overseas Pvt. Ltd. vide suit no. 274/77 and the challenge was upheld vide the judgment dated 19.07.1980 by the Court of Sh. V.K. Jain, the then SubJudge, Delhi (as his Lordship then was) on the ground that the judgment dated 04.09.1971 was null and void as the former court lacked the inherent jurisdiction for want of permission as required under section 19 of the Slum Areas Act.
15. The issue no. 4 was framed in the above background of matter. It was treated as a preliminary issue and was adjudicated upon by the Court of Sh. Jaswant Singh, the then SubJudge, 1st class who vide order dated 02.11.1985 held that the judgment dated 04.09.97 in suit no. 303/1969 operates as resjudicata and thus is hit by section 11 CPC therefore the suit was dismissed. Vide the said judgment dated 02.11.1985 it was held that since suit no. 303/69, of plaintiff against M/s Narang Kedar Nath Vs. Sardul Singh RCA. No. 29/11 8 of 43 9 Overseas Pvt. Ltd. and defendants was only partly decreed against M/s Narang Overseas Pvt. Ltd. and it was dismissed against defendants, hence order of dismissal of suit no. 303/69 against defendants had attained finality. Consequently suit was dismissed vide said order dated 02.11.1985. Aggrieved by the said order dated 02.11.85 the appellant filed RFA No. 147/1987 in the Hon'ble High Court of Delhi. Said appeal was allowed by the Hon'ble High Court of Delhi, vide order dated 22.10.03 thereby setting aside the judgment dated 02.11.85 and the matter was remanded back for trial.
Grounds of Appeal
16. The Ld. Trial Court, for the reasons stated in the impugned judgment and in view of the above discussion has held the issue nos. (iii), (iv) and (v) in favour of the appellant. The respondents have neither filed any appeal against the impugned judgment nor filed any crossobjections in the instant appeal of the appellant. Thus the findings on these issues are not challenged. Therefore, as far as the present appeal is concerned the findings of the ld. trial Court visàvis the issue Kedar Nath Vs. Sardul Singh RCA. No. 29/11 9 of 43 10 nos. (iii), (iv) and (v) have attained finality.
17. In view of the above, the matter in issue in the present appeal is whether the appellant is the owner of the suit property and if so whether the defendants have trespassed into the same, thus entitling the appellant to seek recovery of possession. Thus the challenge byway of appeal is to the findings of the ld. trial court on issue nos. (i) and (ii).
18. Primarily the challenge to the impugned judgment is on the following contentions raised by the appellant:
(i). The order dated 18.03.2004 permitting amendment to the written statement of respondents is illegal and arbitrary.
(ii). No additional issue was framed subsequent to the amendment of the written statement.
(iii). The ld. trial court has wrongly discredited the appellant on the ground that he has not explained how the gali mentioned in the sale deed of the suit property has been merged by his deceased father.
Kedar Nath Vs. Sardul Singh RCA. No. 29/11 10 of 43 11
(iv). The ld. trial court did not appreciate the additional evidence DW1/4, regarding the property of Shri Shukla in correct perspective.
(v). Ld. trial court has blown the minor discrepancies out of proportion to defeat the claim of the appellant.
(vi). Ld. trial court ignored the agreement ex. DW1/8 between his deceased father and M/S Narang Overseas which showed that the plots of his father were on the two sides of the property of Shuklas. The court also lost sight of the fact that the said document was more than 30 years old and carried a presumption in its favour.
(vii). Ld. trial court did not appreciate that it was the admitted case of the respondants that they were in possession of the suit property for long 29 years. The allotment of new house no. as 1443A was only with oblique objective by the respondents.
(viii). Evidence of PW1 regarding the properties Kedar Nath Vs. Sardul Singh RCA. No. 29/11 11 of 43 12 nos. 1443 and 1443A being distinct was not correctly appreciated visàvis the contemporary circumstances. The respondent did not suggest any case as propounded by them to PW1, thus inviting deemed admissions.
(ix). The finding of the ld. trial based on non filing of any complaint etc. to police is also not in the correct perspective. The court also did not give due weightage to the fact of appellant stepping into the shoes of his father only after his death.
(x). The plea of the respondents being the owners of red portion in Ex. DW1/3 is not established. DW1/1 is a forged document. The respondents have not proved the sale deed executed by Shri Udai Chand in favour of Shri Dharma Pal. The said sale deed has not been considered by the Court. The said sale deed throws away the case of the respondents. The respondents never disclosed the plot no. in their possession. Kedar Nath Vs. Sardul Singh RCA. No. 29/11 12 of 43 13 Dharam Pal could not have passed the title which he himself did not possess. There are inherent contradictions in the Sale Deed of Shri Udai Chand in favour of Shri Dharma Pal and the sale deed of Dharam Pal in favour of the respondents. Even the site plan of respondents, vide Ex. DW1/3 does not support their own plea and is contradictory. The stand of the appellant is corroborated by the lease agreement Ex. DW1/8.
(xi). The ld. trial court did not consider that it was proved on record that the father of the appellant had purchased two plots bearing nos. 22 and 27 vide two separate sale deeds and this fact was uncontroverted by respondents. On the other hand the case as propounded by the respondents was only a bald statement. The documents on record as well as the evidence clearly establishes the case of the appellant and the impugned judgment is contrary to the facts established on record and de Kedar Nath Vs. Sardul Singh RCA. No. 29/11 13 of 43 14 hors the law.
Reasons & Findings in Appeal
19. I have heard the parties, their counsels and also considered the written submissions filed by the parties.
20. The first contention of the appellant that the order dated 18.03.2004 permitting amendment to the written statement of respondents is illegal and arbitrary cannot be considered in this appeal. If the appellant was aggrieved from the same he could have taken recourse in accordance with law. It cannot be agitated by him for the first time in regular appeal. Similarly, the submission that no additional issue was framed subsequent to the amendment of the written statement is not sustainable when it has not been shown that any miscarriage of justice has resulted from the same. The ld. trial court while rendering its findings on issue nos. (i) and (ii) has shown that it has been conscious of the rival issues involved in the case and has narrated the same in para 3132 on pages 2224 of the impugned judgment. Thus it is a reflection that the ld. trial court had taken note of the rival contentions and the various Kedar Nath Vs. Sardul Singh RCA. No. 29/11 14 of 43 15 questions which it needed to answer in the case in hand and the same manifest on the face of the record. Thus this plea of the appellant is without any substance.
21. Coming to merits, it is the settled position of law that it is the duty of the plaintiff/propounder to establish the relevant facts, which constitute the genesis of his claim, by credible evidence. The rule of law is 'actori incumbit onus probandi' i.e. the burden of proof lies on the plaintiff or the prosecution. The plaintiff's case has to stand on its own legs and plaintiff cannot claim his claim to be established on account of the weakness of the defendant's case.
22. The appellant has examined two witnesses before the ld. trial court. PW1 is the Asstt. Assessor & Collector of the Municipal Corporation of Delhi. PW2 is the appellant himself. PW1 in her examination in chief has tendered the letter dated 08.03.2004 issued under her signatures as Ex. PW1/A (also as PW2/11). This letter reads that property no. plot no. 22 and 27 now no. 1443, Wazir Nagar, Kotla Mubarakpur stands in the name of Mehar Chand Kohli as per the records. PW1 has been Kedar Nath Vs. Sardul Singh RCA. No. 29/11 15 of 43 16 extensively crossexamined. She has stated that there has been no sale deed on record in favour of Shri Mehar Chand taken at the time of mutation; it was effected on the basis of indemnity bond and affidavit of Shri O. N. Kolhi son of Shri Mehar Chand Kohli. The evidence of PW1 is of no value to establish any interest as owner in favour of Shri Mehar Chand Kohli. The municipality has only carried out mutation in its record for the purpose of fixing incidence of taxes etc. It is the settled law that mutation does not create any interest in the property, rather it creates liabilities as held in case law State of U. P. vs. Amar Singh JT 1996(10) SC 43; Sawarni vs. Inder Kaur JT 1996(7) SC 580 and Misri Lal vs. Tota Ram 1984(1) RCR Delhi 319. The mutation has been done by the MCD only on oral statement/affidavit of Shri O. N. Kohli and on the basis of Indemnity Bond furnished by him. The same is ostensibly for the purpose of earmarking the person who shall be liable to pay municipal taxes. Fact of mutation in the records of MCD cannot be propounded independently for establishing any title to the suit property. It can be, at the most, of some corroborative Kedar Nath Vs. Sardul Singh RCA. No. 29/11 16 of 43 17 value coupled with other valid evidences. Nevertheless, on its own, the mutation in the records of MCD is no proof of title. In the present case the mutation has been carried out by the MCD only on the statement of son of the predecessorininterest of the appellant without seeking the title documents. Its genesis is not based on any material but only an oral statement. Thus it has no evidentiary value in the eyes of law.
23. The appellant is the star witness of the case and has tendered himself in evidence as PW2. He tendered in his evidence, amongst other documents, sale deed in respect of plot nos. 22 and 27 as Ex. PW2/2 and Ex. PW2/3 respectively; the site plan of the colony as Ex. PW2/4; notice dated 08.03.1994 issued by MCD as Ex. PW2/11 and the site plan Ex. PW2/12. Thus the sale deed of suit property (which is plot no. 7 and municipal no. 1443) are relevant documents visàvis the controversy. Ex. PW2/4 is a photocopy and stated to be the site plan of the colony. PW2 has stated in his examination in chief that both the plot nos. 22 and 27 are adjoining and facing each other and there was a lane 16" wide and 60" long (it appears to Kedar Nath Vs. Sardul Singh RCA. No. 29/11 17 of 43 18 be 16' X 60' = 106.67 sq. yards) and that the said lane/gali was also purchased by his father and the common municipal number as 1443 was allotted to these properties. However this fact has been propounded by the appellant for the first time in his examination in chief and has not been the part of the original plaint. In his cross examination PW2 has stated both the plots have identical measurement. He has further stated in his cross examination that there is no sale deed with him showing possession of plot no. 27 as 260 sq. yards. Thus by this statement the plaintiff has himself admitted that he has no ownership documents at least in respect of 60 sq. yards of the suit property.
24. PW2 states in his crossexamination that "in fact my property no. 1443 was later on converted into 1443A in the year 198284. I am not concerned (regarding) the property no. 1443A nor I had enquired as to whether defendants are in its possession or not."
25. PW2 denied in his cross examination any knowledge about whether his father had let out the plot no. 2227 to M/S Kedar Nath Vs. Sardul Singh RCA. No. 29/11 18 of 43 19 Narang Overseas Pvt. Ltd. He in his cross examination thereafter denied the knowledge of subletting by M/S Narang Overseas Pvt. Ltd. or his father filing a suit against it and the respondents or that the said suit was decreed against M/S Narang Overseas Pvt. Ltd. but dismissed against the other defendants. He denied any knowledge about the suit for declaration filed by M/S Narang Overseas Pvt. Ltd. against the said judgment and what followed thereafter. PW2 stated in his cross examination that he could not identify the signatures of his father in Ex. P14 in the file of the old case, which is an agreement dated 14.08.1967. These kinds of replies put a question mark on the testimony of PW1, as all these facts are duly established on record in the form the record of previous case and the departure from the same impinges on the testimony of the appellant. It is the plaintiff himself who tendered in his evidence the judgment in the suit no. 303/1998 on record as Ex. PW2/1, then his denial about all the material points relating to that suit does not speak favourably against him and his testimony has become suspect.
Kedar Nath Vs. Sardul Singh RCA. No. 29/11 19 of 43 20
26. Before the Trial Court the respondents examined various witnesses. DW1 is Sh. Baldev Singh Sethi, the defendant no.2/respondent no.2. He has deposed in his examination in chief that he is in possession of property no. 1443A, Wazir Nagar Kotla Mubarakpur measuring 295 sq. yds through his tenants. He further deposed that the above said property was purchased into two plots, one from Dharam Pal vide registered sale deed dated 15.09.66, Ex. DW 1/1, and another from one Chet Singh vide registered sale deed dated 07.03.67, Ex. PW 1/2, and both these plots have consolidated municipal no. as 1443A Wazir Nagar, Kotla Mubarakpur. DW1 also deposed and proved the site plan Ex. DW 1/3 in which property no. 1443A has been shown in red colour; and property no. 1443 which was owned by Mehar Chand (the predecessorin interest of the appellant) has also been shown green in said site plan Ex. DW 1/3. DW 1 also deposed that in the west side of property no. 1443, there is property no. 1435 and to the east, there is property no. 1444 which is property of one Mr. Shukla and then to the eastern side of property no. 1444, property no. 1443A Kedar Nath Vs. Sardul Singh RCA. No. 29/11 20 of 43 21 comes. DW1 further deposed that property no. 1443 was let out by Late Mehar Chand Kohli to M/s Narang Overseas Pvt. Ltd and that after the death of appellant's father the said property no. 1443 was sold by his legal heirs to M/s Narang Overseas Pvt. Ltd and that M/s Narang Overseas Pvt. Ltd. have demolished the said building and started new construction over property bearing municipal no. 1443. DW 1 also deposed that suit property is situated in a slum area and is in unapproved locality, therefore due to inadvertence, officials of MCD gave municipal no. 1443 to two properties and that it was in year 198384 when the said mistake was realized. Thereafter, his property was given municipal no. 1443A. (This fact is also corroborated by PW1). The properties were purchased by them under sale deed Ex. DW1/1 and DW1/2 and the Municipal no. 1443A is in respect of both jointly. DW1 further deposed about suit no 303/69 against M/s Narang Overseas and defendants herein in which also they (defendants herein) have taken the similar plea of being owner. DW1 tendered the certified copy of plaint of suit no. 303/69 as Ex. DW 1/ 4, Kedar Nath Vs. Sardul Singh RCA. No. 29/11 21 of 43 22 written statements as Ex. DW 1/ 5 & 6, the judgment of sh. V. S. Aggarwal in the said suit no. 303/69 is already exhibited as Ex. PW 2/1. DW1 then deposed about passing of judgment of Sh. V. K. Jain, the then SubJudge dated 19.07.1980 exhibited as DW 1/ 7 whereby the judgment given suit no. 303/69 was declared to be nullity. DW1 also tendered copy of the agreement and certified copy of site plan as Ex. DW 1/ 8 to Ex. DW 1/ 9, photographs and negatives of property no. 1444 and 1443A as Ex. DW 1/10 to Ex. DW 1/ 13, demand notice to MCD as Ex. DW 1/ 14. DW1 was extensively cross examined by the appellant.
27 DW2 is Sh. Virender Saini, draftsman who had prepared the site plan Ex. DW1/3. DW3 is Sh. Harbhajan Singh, a signatory of the sale deed dated 15.09.66 Ex. DW 1/1 as a witness thereof and DW4 is Sh. Mahesh Kumar who proved the sale deed dated 05.08.87 as Ex. DW 4/1.
28 The main thrust of the arguments of the appellant is that the respondents have not been able to prove their title deeds in respect of the property which they claim to have been allotted Kedar Nath Vs. Sardul Singh RCA. No. 29/11 22 of 43 23 the Municipal Number 1443A. The respondent had argued that it was for the appellant to prove his case in affirmative in which it has miserably failed. The appellant cannot derive any advantage from any lacuna in the case of respondents though in fact there is no lacuna. However, the respondents vehemently argued that the appellant has failed to prove his case and his attempt is only to usurp the property of the respondents.
29. I have already narrated hereinabove the additional evidence led by the parties as allowed by my ld. predecessor vide order dated 11.05.2010 in the present appeal.
30. Looking into the impugned judgment the ld. trial court has also focused the scope of its inquiry on the title and situs of the suit property in view of the rival stands taken by the parties. In the plaint the appellant has claimed himself to be the owner of the suit property bearing plot no. 27 bearing municipal no. 1443 and it has also been stated in the plaint that the 'area of the said land along with the adjoining area is 260 sq. yards'. However the evidence as led on record shows that municipal number 1443 refers to both the plot nos. 22 and 27 taken Kedar Nath Vs. Sardul Singh RCA. No. 29/11 23 of 43 24 together as well as the gali in between. Thus there is significant departure from the case that has been set up in the pleadings by the plaintiff.
31. APW2/1 is the site plan of plot no. 28 at Wazir Nagar, Village Mubarakpur, Delhi forming part of the sale deed dated 9/12/1947 has been produced by the witness APW2 Sunil Kumar, UDC from the office of SubRegistrar, Kashmere Gate, Delhi. AW3 Shri Naveen, Record Keeper from Delhi Archives has brought the record of Sale Deed dated 09.12.1947 which is Ex. AW3/1.
32. The respondent examined RW1 Shri Radhey Shyam, Record Keeper, O/O SubRegistrarV, Mehrauli, New Delhi who proved on record a sale deed dated 10.04.2002/25.09.2002 as Ex. ARW1 and another sale deed dated 08.02.2010/11.02.2010 as Ex. ARW2. RW2 Shri Ram Prasad was examined regarding Ex. ARW1 and Ex. ARW2. RW2 is the attesting witness in both the sale deeds Ex. ARW1 and Ex. ARW2.
33. The appellant has stepped into the shoes of the original Kedar Nath Vs. Sardul Singh RCA. No. 29/11 24 of 43 25 plaintiff Shri Mehar Chand Kohli on the basis of photocopy of a registered Will bearing date of registration as 31.12.1967 at Kanpur (on record on page nos. 11771184 of TCR) as Ex. PW1/1. However no attesting witness has been examined to prove the Will. In this Will it is stated that the father of the appellant bequeathed that the plot no. 22, Wazir Nagar, Kotla Mubarakpur, New Delhi measuring 335 sq. yards shall go to his son Shri Onkar Nath Kohli and the plot no. 27, Wazir Nagar, Kotla Mubarakpur, New Delhi measuring 260 sq. yards shall go to his son Shri Kedar Nath Kohli. Shri Onkar Nath Kohli vide sale deed Ex. ARW1 has sold the property the plot no. 22, Wazir Nagar, Kotla Mubarakpur, New Delhi measuring 335 sq. yards to M/S Narang Overseas Pvt. Ltd. which has further sold it to S/Shri Anil Narang and Sanjeev Narang vide sale deed Ex. ARW2.
34. The documents Ex. ARW1 and Ex. ARW2 were tendered by the witness RW1 Shri Radhey Shyam, Record Keeper in additional evidence and in his crossexamination he stated that he has no personal knowledge of the Ex. ARW1 and Ex. ARW2 Kedar Nath Vs. Sardul Singh RCA. No. 29/11 25 of 43 26 and that at the time of their presentation he was not present in the office. This crossexamination has put a question mark on the evidentiary value of the documents. However, one of the attesting witness of documents Ex. ARW1 and Ex. ARW2 appeared in the witness box in additional evidence as RW2. He proved his signatures at point A and photograph at point B both in Ex. ARW1 and Ex. ARW2. In crossexamination no question was put to him or any suggestion was given to him to impugn the execution of the documents in question. Thus the documents stand proved in accordance with law.
35. The document Ex. AWP2/1 is the site plan produced by APW2 in additional evidence. In his crossexamination the said witness has stated that he has not dealt with this file and that he has personal knowledge about this document. The author of the document/site plan has not stepped into the witness box. Thus the document has not been proved in accordance with law as the witness has no personal knowledge as to the authenticity and veracity of the said plan as to whether it depicts the correct position on the spot. Testimony of AW3 also sails in the same Kedar Nath Vs. Sardul Singh RCA. No. 29/11 26 of 43 27 boat as above (i.e. the testimony of APW2) as regards the sale deed Ex. AW3/1.
36. The appellant has pressed into service the presumption of documents being more than 30 years old. The relevant section of the Evidence Act, 1872 reads as under: "90.Presumption as to documents thirty years old--Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be Kedar Nath Vs. Sardul Singh RCA. No. 29/11 27 of 43 28 executed and attested.
Explanation--Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable."
Kedar Nath Vs. Sardul Singh RCA. No. 29/11 28 of 43 29
37. Thus the above provision shows that the presumption is not of veracity of the contents of the documents which is more than 30 years old. The presumption is only as regards the signatures, handwriting, due execution and attestation. The presumption is not as to the veracity of the contents of the documents. Ostensibly, the presumption has been made by the Legislature as after a long period of 30 years the executants may not be available.
38. In view of the above the additional evidence also does not help the appellant.
39. PW1 in his cross examination has stated that both the properties bearing nos. 22 and 27 measure 200 sq. yards each. This gets refuted by the Will of late Shri Mehar Chand Kohli Ex. PW1/1 in which the measurements of the plots has been shown as 365 and 260 sq. yards respectively. Further Ex. ARW1 and ARW2 show the size of property sold by the Shri Kedar Nath Vs. Sardul Singh RCA. No. 29/11 29 of 43 30 Onkar Nath Kohli as 335 sq. yards. Thus the evidence of the appellant visàvis the size of the suit property has totally remained contradictory or without any explanation. Even if it is presumed that the lane in between plot no. 22 and 27 has been encroached upon by the appellant's predecessorininterest there is no explanation as to how the total area of the plot nos. 22 and 27 has becomes 595 sq. yards. It could at the most have been 506.67 (200+200+106.67) sq. yards). This shows by itself that there is something more than what meet the eyes.
40. PW1 in her crossexamination has stated that as per their records neither Mehar Chand (father and predecessorin interest of the appellant) nor Kedar Nath (appellant) are the owner of property no. 1443A. PW1 has been the witness of appellant. On 06.04.2004 when the witness' crossexamination was over the counsel for the appellant's prayer for the re examination of PW1 was allowed. In the reexamination by the appellant the witness stated that "the original number 1443 given to two properties was changed to 1443A in the name of Baldev Singh in April 1983 as per our records." On no other Kedar Nath Vs. Sardul Singh RCA. No. 29/11 30 of 43 31 point any reexamination of PW1 has been done by the appellant. That having not been done, it can be inferred that the appellant conceded to the testimony of the witness PW1 on the other points/aspects and cannot submit to the contrary to what his own witness has deposed.
41. In view of the above the net import of the testimony of PW1 is that the properties no. 1443 and 1443A are distinct and that the original number 1443 was given to two properties and it was changed to 1443A in the name of Baldev Singh in April 1983 as per MCD's records. Thus there is a tacit admission on the part of the appellant of the properties nos. 1443 and 1443A being separate and distinct and the same is crystallized record in view of the testimony of PW1.
42. The appellant has vehemently argued that the defendants' have failed to prove their case and that their documents are forged. In this regard it is to be appreciated that the Hon'ble High Court Delhi in UCO Bank vs. The Presiding Officer & Another 1999 LLR 1036 has held that 'burden of proving rests on the party who substantially asserts the affirmative of the Kedar Nath Vs. Sardul Singh RCA. No. 29/11 31 of 43 32 issue and not upon the party who denies it, for a negative is usually incapable of proof.' It is settled law that in the course of trial the burden remains fixed/constant and never shifts/changes. It always remains on the propounder. Nevertheless, the onus of proof is dynamic and it keeps on shifting during the course of trial. In the present case it is the appellant who set the civil law in motion by bringing the lis before the Court to render a judgment in his favour. Thus the burden of proof has been upon him to establish his case on the basis of preponderance of probabilities. There cannot be any question of reverseonus upon the respondents.
43. The appellant has argued that the ld. trial court did appreciate the additional evidence DW1/4, regarding the property of Shri Shukla in correct perspective. This is not correct. Even the site plan tendered on record in the additional evidence has not been proved in accordance with law, as discussed earlier.
44. The appellant has contended that the Ld. trial court has blown the minor discrepancies out of proportion to defeat Kedar Nath Vs. Sardul Singh RCA. No. 29/11 32 of 43 33 the claim of the appellant. The same is contrary to the records. The appellant has not been able to demonstrate his ownership visàvis the suit property by any credible evidence. The various inconstancies and discrepancies have been considered by the court only to doubly assure and recheck that it has reached a correct conclusion considering the case from all the possible angles. This zealousness of the ld. trial court is manifest on the face of the record and it cannot be termed as perversity by any standards. The ld. trial court has not rejected the entire evidence of the appellant only on the basis of their being no report to the police etc.
45. The appellant has contended that the Ld. trial court ignored the agreement ex. DW1/8 between his deceased father and M/S Narang Overseas which showed that the plots of his father were on the two sides of the property of Shuklas and that the court also lost sight of the fact that the said document was more than 30 years old and carried a presumption in its favour. The document Ex. DW1/8 infact defeats the very own case of the appellant. This document Ex. DW1/8 narrates that the plot Kedar Nath Vs. Sardul Singh RCA. No. 29/11 33 of 43 34 nos. 22 and 27 are three sides open having an area of 200 sq. yards each (30' x 60'). There is no explanation how in the Will Ex. PW1/1 or in the plaint the area of one of the plots becomes 260 sq. yards and that of other 335 sq. yards. I have already discussed the scope of presumption under section 90 of the Evidence Act, 1872 in the foregoing paras and it applies here also. Even otherwise, the documents relied upon by the appellant are contradict one another.
46. It has been argued by the appellant that the Ld. trial court did not appreciate that it was the admitted case of the respondents that they were in possession of the suit property for long 29 years and that the allotment of new house no. as 1443A was only with oblique objective by the respondents. From where the appellant has read the said admission is shrouded in mystery. The testimony of appellant's own witness namely PW1 defeats and shatters this stand of the appellant. There is no material on record to establish that municipal nos. 1443 and 1443A pertain to the one and the same property viz. the suit property. The appellant as the propounded of the theory of Kedar Nath Vs. Sardul Singh RCA. No. 29/11 34 of 43 35 fraud has failed to establish any fraud on the part of the respondents.
47. The appellant has contended that the evidence of PW1 regarding the properties nos. 1443 and 1443A being distinct was not correctly appreciated visàvis the contemporary circumstances as the respondent did not suggest any case as propounded by them to PW1, thus inviting deemed admissions. As discussed earlier there is no admission on the part of the respondent either express or implied. The evidence of PW1 goes against the appellant, as already discussed above. There is apparent contradiction in the title documents, Will Ex. PW1/1; Sale deeds Ex. AWP1 and Ex. AWP2; and the agreement Ex. DW1/8 which cannot be reconciled by any standards. These gross and material contradictions have proved to be the nemesis of the case of the appellant.
48. The appellant has challenged the finding of the ld. trial court based on non filing of any complaint etc. to police is also not in the correct perspective and that the court also did not give due weightage to the fact of appellant stepping into the Kedar Nath Vs. Sardul Singh RCA. No. 29/11 35 of 43 36 shoes of his father only after his death. The impugned judgment is selfspeaking of the matter contained therein on this aspect. The nonfiling of the compliant to police by the appellant's father or the appellant has been taken only as one of the circumstances while considering the conduct of a reasonable prudent person as to the course of action which he follows when his proprietary rights are at stake. Though the human conduct cannot be put into a straitjacket and different persons may react differently even when placed under the same set of circumstances. The approach adopted by the ld. trial court on this aspect is only one facet of its inquiry. The ld. trial court has considered the entire set of circumstances to crosscheck its findings and I do not see any perversity in this approach of the ld. trial court. This kind of reverse engineering is generally done as a scientific way of verifying if the conclusions drawn by one set of evidence are supported by other attendant circumstances/evidences. Thus the grouse of the appellant is not wellfounded as the ld. trial court has considered it only as one of the circumstances and not as the only circumstance to throw Kedar Nath Vs. Sardul Singh RCA. No. 29/11 36 of 43 37 away the case of the appellant.
49. Next it has been contended by the appellant that the plea of the respondents being the owners of red portion in Ex. DW1/3 is not established. At the cost of repetition, the scope of issues before the Court was whether the appellant has been the owner of the suit property and not that whether the defendants have not been the owners of the suit property or the property no. 1443A. When the appellant did not remain successful in discharging the initial onus on the aspect of his ownership vis avis the suit property, the onus did not shift to the respondents. The respondents were not supposed to prove the negative. Even if presumed for the sake of evidence that the respondents have no case of ownership visàvis the suit property or property no. 1443A does it mean that the stand of the appellant is vindicated? Appellant's case has necessarily to stand on its own legs and not on the crutches of the fallen case of the defendants. The appellant had to prove its independent title to the suit property to the exclusion of all others and not merely the exclusion of the respondents. The appellant has failed to prove Kedar Nath Vs. Sardul Singh RCA. No. 29/11 37 of 43 38 that the Ex. DW1/1 is a forged document. The arguments of the appellant is that the respondents have not proved the sale deed executed by Shri Udai Chand in favour of Shri Dharma Pal; the said sale deed has not been considered by the Court; the said sale deed throws away the case of the respondents; the respondents never disclosed the plot no. in their possession; Dharam Pal could not have passed the title which he himself did not possess and that there are inherent contradictions in the Sale Deed of Shri Udai Chand in favour of Shri Dharma Pal and the sale deed of Dharam Pal in favour of the respondents. It is also argued that even the site plan of respondents, vide Ex. DW1/3 does not support their own plea and is contradictory whereas the stand of the appellant is corroborated by the lease agreement Ex. DW1/8. I have already discussed various aspects above and that the inquiry has been into the title of the appellant and not in the title or otherwise of the respondents. The respondents never sought any declaration of their title to 1443A, the appellant has sought the possession of the suit property on the basis of his title. The appellant has to prove his Kedar Nath Vs. Sardul Singh RCA. No. 29/11 38 of 43 39 title independently. Without proving his own title he cannot base his claim on the failure of the respondents to prove their title. Thus the argument of appellant is misplaced. The title of respondents has never been in issue. The site plan Ex. DW1/3 is admitted by the appellant as held by the ld. trial court. The ld. trial court has discussed the locale of the suit property on the basis of Ex. DW1/3 and on the basis of other evidence also, which as discussed above, does not suffer from any perversity. The lease agreement Ex. DW1/8 does not corroborate the case of the appellant and I have already discussed the scope of the same hereinabove. The settled position of law is that two tainted or contradictory evidences do not corroborate each other. The documents relied upon by the appellant are diametrically opposite to each other.
50. The appellant has argued that the ld. trial court did not consider that it was proved on record that the father of the appellant had purchased two plots bearing nos. 22 and 27 vide two separate sale deeds and this fact was uncontroverted by respondents whereas on the other hand the case as propounded Kedar Nath Vs. Sardul Singh RCA. No. 29/11 39 of 43 40 by the respondents was only a bald statement. As discussed earlier, the fate of the appellant's case has been sealed by his own documents which are selfcontradictory and there is in fact no need to look into other documents or evidence as the very basic facts on which the appellant's cause of action is based have not been proved. There is apparent contradiction reflected by the Will Ex. PW1/1; Sale deeds Ex. AWP1 and Ex. AWP2; and the agreement Ex. DW1/8 which contradictions could not be resolved by any argument. How the area if two plots which was originally 400 (200+200) sq. yards has swelled to 595 sq. yards is anybody's guess. The brother of appellant has sold 335 sq. yards of plot in municipal no.1443. The evidence which the appellant has brought on record has defeated his own stand.
51. To sum up the Ld. Trial Court after formulating the questions which require consideration to dispose off issue nos.1 and 2 in para 31 of its judgment at page no.23 has taken care of all the relevant matters/aspects which required consideration. These questions focused on whether the suit property bearing Municipal no.1443A is infect 1443 itself i.e. the suit property; Kedar Nath Vs. Sardul Singh RCA. No. 29/11 40 of 43 41 whether the suit property comprised of plot no.22 or 27 or only plot no. 27 measuring 260 sq. yards; whether the dimensions and boundaries are similar as stated in sale deed in respect of property no. 1443; whether the properties 1443 and 1443A are same or distinct and whether owned by different people and whether the sale deed Ex. DW1/1 is forged. The ld. Trial Court discussed the various evidences on record to find out the area of the suit property and its position on the spot. To find out the situs or location of the suit property the ld. Trial Court evaluated in detail the matter from various angles considering the evidence on record which I have discussed above. Neither the dimensions of the suit property nor the location of it could be conclusively established by the appellant in evidence. Even the additional evidence led in the matter does not make any headway in establishing the case of the appellant. The ld. Trial Court discussed the evidence led by the respondents and even in that evidence there has been no material which could have established the case of the appellant. The oral as well as documentary evidence of the appellant is self contradictory and Kedar Nath Vs. Sardul Singh RCA. No. 29/11 41 of 43 42 there is no explanation as to why and how the area of plot no.22 and 27 each measuring 200 sq. yards with a gali measuring 16'X60' (106.67 sq. yards) in between could swell to 595 sq. yards. The appellant deposed orally that the said gali was later on purchased by his father but he could not show any such title document in this respect. Even if it was considered that the appellant covered or encroached upon the gali in between two plots the area could have been 506.67 sq. yards. There is no explanation as to the difference of more than 78 sq.yards which is in excess. In the additional evidence it has been proved on record that Sh. Onkar Nath Kohli, the brother of appellant had sold property comprised under Municipal no. 1443 to M/s Narang Overseas Pvt. Ltd. measuring 335 sq. yards. The appellant also failed to prove the title and location of the suit property by preponderance of probabilities. The case of the appellant is also vague on various other counts. There is no narration as to when and how the respondents trespassed into the suit property and the entire cause of action as propounded is vague. The appellant has failed to prove the very basic Kedar Nath Vs. Sardul Singh RCA. No. 29/11 42 of 43 43 ingredients of his case which were necessary to prove his claim.
52. I do not find any illegality or perversity in the impugned judgment and decree dated 26.09.2006 passed by the ld. Civil Judge, Delhi. The appeal has no merits and it is accordingly dismissed. Decree sheet be drawn accordingly.
53. Trial Court record be sent back with copy of this judgment. Appeal file be consigned to Record Room Announced in the Open Court On this 07th day of December 2011 (MAN MOHAN SHARMA) ADJ (Central)12, Delhi Kedar Nath Vs. Sardul Singh RCA. No. 29/11 43 of 43