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Delhi District Court

Shri Mahabir Singh vs Dharam Das Gupta on 28 April, 2014

                                       -:1:-

             IN  THE COURT OF SH. LAL SINGH, ADJ­03 (SW),
                  DWARKA COURT COMPLEX, NEW DELHI 


RCA­ 03/13
In the matter of :­


Shri Mahabir Singh
S/o. Sh. Dalip Singh
R/o. Village Rampur Kundal,
District Sonipat(Haryana)
Through his general power of attorney holder
Sh. Jai Kishan S/o. Shri Harbans Lal,
R/o. WZ­168, Sant Nagar,
Tilak Nagar, New Delhi­110018                ................Appellant


                           Versus


    1. Dharam Das Gupta
       S/o. Shri Sita Ram Gupta
       R/o. 653/B, Mansarovar Colony, 
       Mahavir Chowk, Muzzafar Nagar, UP.


    2. Shri Narain Singh
       Son of Shri Neki Ram,
       R/o. Village Nangli Sakrawati, Delhi


    3. Shri Kartare
    4. Sh. Som Dutt
    5. Sh. Om Dutt

RCA­03/13
Mahabir Singh Vs. Dharamdass & Ors. 
                                             -:2:-

    6. Sh. Sansar Singh
    7. Sh. Ram Kishan
    8. Sh. Mehtab Singh
    9. Sh. Sripal
    10.Sh. Sunil Kumar
       (Respondent No.3 to 10 through their attorney
       Sh. Narain Singh S/o. Sh. Neki Ram, 
       R/o.Village Nangli, Sakrawati, Delhi).            .........Respondents. 



                            Date of Institution of Appeal:   03/01/2013
                            Date on which reserved for judgment: 17/04/2014
                            Date  on which judgment was  passed : 28/04/2014


JUDGMENT

1 The present appeal is directed against the impugned judgment and decree dt. 16/11/2012 passed by the court of Ld. Civil Judge­02(North), Tis Hazari Court, Delhi in suit No.489/06 titled as ''Sh. Mahabir Singh Vs. Sh. Dharam Das Gupta and others'', whereby Ld. Civil Judge­02 (North), Tis Hazari Court, Delhi, has dismissed the suit of the appellant/plaintiff for recovery of possession and permanent injunction. Aggrieved by the judgment dt. 16/11/2012 of Ld. Trial court, appellant/plaintiff preferred the present appeal. 2 The relevant brief facts for the purpose of disposal of the appeal are that appellant/plaintiff had filed a suit for recovery of RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

possession and permanent injunction against the respondents/defendants, stating therein that the appellant/plaintiff is the resident of village Rampur Kundal, District Sonipur (Haryana) and for the purpose of prosecuting the suit appellant/plaintiff had appointed Sh. Jai Kishan, son of Sh. Harbans Lal R/o. WZ­168, Sant Nagar, Tilak Nagar, New Delhi­110018 as his G.P.A, through whom the suit was filed. The respondents / defendants No.2 to 10 were the owner of the plot bearing No.60, ad­measuring 200 sq. yards comprising in Khasra No.17/11 situated at Village Nangli Sakrawati, Delhi known as Nangli Vihar (colony), Delhi, which is referred as suit property. It has been averred that appellant/plaintiff had purchased the suit property from the respondents No.2 to 10 by way of registered sale deed dt. 19/4/1984 for the total sale consideration of Rs.4000/­ . It is also stated that respondent No.2 Sh. Narain Singh was the general power attorney holder of respondents No.3 to 10, vide a registered general power attorney bearing registration No.447, dated 9/12/1983, whereby respondents No. 3 to 10 appointed and constituted respondent No.2 as their attorney holder for the purpose of selling the suit property and registration of the sale deed. It has been averred in the plaint that in pursuance of the aforesaid sale deed, the respondents/defendants no. 3 to 10 handed over actual and physical possession of the suit property to the appellant/plaintiff. It is also stated RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

that after taking possession of the suit property, the appellant/plaintiff dug the foundation and built up a boundary wall upto the plinth level and respondents/defendants had raised the boundary wall over and above the already built up plinth level of the plaintiff and the respondents/defendants had spent Rs.80,000/­. It has been alleged by the appellant/plaintiff that the respondents/defendants no.3 to 10 in collusion with the respondent/ defendant no.1 wanted to take possession of the suit property.

3 It is also alleged by the appellant/plaintiff that on 1/7/1988 the respondents/ defendants with their malafide intention to encroached over the suit property, stored some building materials near the suit property and they wanted to take possession of the suit property forcibly and also wanted to raise building/further construction over and above already built up plinth area of the appellant/plaintiff.The appellant / plaintiff apprehending the threats from the respondents / defendants for taking forcible possession of the suit property, filed a suit bearing suit No.228/1988 titled as ''Jai Kishan Vs. J.S. Sobti'' for permanent injunction, in the court of ld. Sr. Civil Judge, Delhi. In that suit, the appellant/plaintiff has also filed an application under order 39 Rule 1 and 2 CPC for getting an ex­parte ad interim injunction. It is alleged that however, on the same day, the respondents/defendants RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

forcibly took possession of the suit property from the appellant/plaintiff and hence, the said application of the appellant/plaintiff before the concerned court was dismissed. It has been also averred that the appellant/plaintiff before the purchasing of suit property from the respondents/defendants no.2 to 10, verified the title of the respondents / defendants no.2 to 10 and as per revenue records, respondents / defendants no.2 to 10 were recorded as owners / bhumidars of the the suit property.

4 Appellant/plaintiff also averred that the respondents / defendants no.2 to 10 and appellant / plaintiff moved a joint application before the competent authority, for obtaining no objection certificate for transferring the suit property by the respondents / defendants no.2 to 10 in favour of the appellant /plaintiff. Thereafter, after obtaining no objection certificate, sale deed was registered in the office of Sub­ registrar on 19/4/1988 in favour of the appellant/plaintiff. The appellant / plaintiff alleged that the sale deed being relied upon by the attorney of the respondent / defendant no.1 were either bogus or never been acted upon and mutation was never effected and sale would have no effect after expiry of three years from the registration of the sale deed, in case the respondent / defendant no.1 had not obtained possession in pursuance to the sale deed. It has also been averred that appellant/plaintiff took actual RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

physical possession of the suit property after registration of the sale deed of the suit property on 19/4/1984 and since then the appellant/plaintiff has been in possession over the suit property till 1/7/1988, the date, when the respondents / defendants forcibly took the possession of the suit property from the appellant/ plaintiff. Appellant / plaintiff averred that after the registration of the sale deed in favour of the appellant / plaintiff, the respondents / defendants have no right, title or interest over the suit property and their possession over the suit property is illegal and unlawful. In these circumstances, the appellant/plaintiff filed the suit for recovery of possession and permanent injunction against the respondents /defendants.

5 Respondents /defendants were duly served and the respondents had also filed WS. The respondent /defendant no.1 in the WS, denied the allegations of appellant/plaintiff and contended that alleged plot no.60 is fictitious number and sale deed dt. 19/4/1984 was a bogus one. As per respondent/defendant no.1 he has purchased the suit property which forms part of plot bearing no.80,81,89 and 90 measuring about 800 square yards out of khasra no.17/11, from its original owner through a colonizer Sh. Jai Lal of village Hassanpur, in the year 1974 and the area of aforesaid plot was given the name of Jai Park. In WS, the respondent/defendant no.1 contended that respondents /defendants no.2 RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

to10 had become dishonest and in collusion with the appellant/plaintiff wanted to grab the suit property from respondent/defendant no.1. Respondent / defendant no.1 had bought the suit property vide registered sale deed dt. 11/9/1974 and there was no question of respondents / defendants no. 2 to 10 being shown as Bhumidars.

6 The respondents/defendants no. 2 to 10 had also filed written statement and contended that the suit against them is not maintainable as they had handed over the possession of the plots in dispute to the appellant/plaintiff at the time of sale of the plot in question. Appellant/plaintiff also filed replication to the WS filed by the respondents/defendants, whereby he reiterated the averments of the plaint.

7 Thereafter, on the basis of pleading, the following issues were framed as under:­

1. Whether the plaintiff is entitled to recover the possession from the defendant?..........OPP.

2. Whether the plaintiff is entitled to the relief of injunction against the defendant?.........OPP.

3. Whether the plaintiff is the owner of the suit property?.......OPP.

4. Whether the plaintiff has filed the present suit in connivance with defendants Nos. 2 to 10 in order to grab the suit property RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

from defendant No.1?, if so, its effect?.........OPD­1.

5. Whether there is no cause of action in favour of the plaintiff and against the defendant No.1?........OPD­1.

6. Whether this court has no jurisdiction to try and entertain the present suit?..........OPD­1.

7. Relief to which the parties are entitled to?

8 Parties led the evidence before the trial court and after hearing the parties, Ld. Trial court dismissed the suit of the appellant/plaintiff vide judgment and decree dt. 16/11/2012. 9 Aggrieved by the impugned judgment and decree dt. 16/11/2012, the appellant/plaintiff preferred the present appeal, challenging the impugned judgment and decree on the ground that the impugned judgment passed by ld. Trial court is contrary to the facts of the case and against the law. The impugned judgment is also assailed on the ground that ld. Trial court has committed error of law and facts in not appreciating the fact that the sale deed, which the respondent no.1 relied upon is pertaining to the different plots than the suit plot. The impugned judgment has been also assailed contending that ld. Trial court has also committed the serious error in not appreciating the fact that Narain Singh, respondent No.2, who is also the attorney of respondent No.3 to 10, in the WS admitted the fact that he had sold the suit plot to the RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

appellant and also admitted the execution of the sale deed and declaration executed by him. The appellant also challenged the impugned judgment contending that ld. Trial court has committed serious error of law and fact in not appreciating the fact that the respondent No.1 has failed to prove that the two properties i.e. property mentioned in the sale deed relied upon by the respondent No.1 and suit property involved in both the suits i.e. plot no.60,61 and 62 were one and the same. On the other hand the appellant has clearly proved that the suit property involved in both the suits i.e. in present suit and suit No.454/06 are the plot Nos. 60,61 and 62 and the property mentioned in the sale deed relied upon by the respondent No.1 is distinct property from the suit property. 10 Appellant has also assailed the impugned judgment contending that ld. Trial court has also committed an error of law and facts in holding that the report of the Local commissioner is based on hearsay and the report of the Local Commissioner and her testimony can not be relied upon and does not advance the case of the appellant. It has been also contended that ld. trial court has committed the serious error in not appreciating the fact that the onus to prove the fact that the suit plot is having the numbers 80,81,89 and 90 and are situated in the colony Jai Park was solely lying upon the respondent No.1 and he has failed to prove the same. Among other ground, the impugned judgment is also assailed RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

by the appellant contending that ld. Trial court has committed the error in not appreciating the fact that in the revenue record, there is no record of plot wise but same is only Khasra number wise. Appellant contended that the appellant has clearly proved that the suit plots involved in the both the connected suits are plot No.60,61, and 62 and same are different from plot Nos. 80,81,89 and 90 and the area was never known as Jai Park. As per the appellant, Ld. Trial court has committed error in not appreciating the fact that the appellant has clearly proved his title over the suit property and also proved the fact that the respondent No.1 illegally and unauthorizedly trespassed over the suit property. 11 Respondent No.1 was duly served and he has filed the reply to the appeal. However, despite service by way of publication, respondents No.2 to 10 have failed to appear and contest the appeal, hence, respondents No.2 to 10 were proceeded as ex­parte on 02/12/2013. 12 During the pendency of the instant appeal, the appellant/plaintiff also filed an application under Order 41 Rule 27 read with section 151 CPC seeking permission to file additional documents and to lead additional evidence, stating therein that in the present case the real controversy is regarding identification of the plot numbers in question and the name of the colony where the suit property is situated. The appellant by way of the present application wants to produce on RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

record the Khatauni of the land holding and particularly of land bearing Khasra No.17/11of village Nangli, Sakrawati, which was in two parts i.e. 17/11 (2­8) min and 17/11(4­5) and the certified copies of relinquishment deed dt. 24/10/1983. It is stated that the said documents are public document and authenticity of the said document are beyond reasonable doubt. It is also contended in the application that at the time of trial of the present suit, the relinquishment deed dt. 24/10/1983 and khatauni of the land belonging to respondents no.2 to 10 was not in the knowledge, power and possession of the appellant and hence, the appellant could not produce the same on record before the ld. Trial court. It is also contended in the application that during the pendency of the appeal, the appellant has been able to get the certified copy of the relinquishment deed dt. 24/10/1983 and khatauni of the land of the respondents no. 2 to 10. Appellant in the application prayed that the application for producing the aforesaid additional documents may be allowed and appellant may be permitted to call the concerned officials in order to prove the aforesaid documents.

13 The respondent no.1 filed reply to the said application under Order 41 rule 27 read with section 151 CPC, contending therein that the application is not maintainable and it does not satisfy any of the ingredients of provisions of Order 41 rule 27 CPC. It is also contended in RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

the reply that the application moved by appellant is not maintainable as it has been moved only to protracted the adjudication of the appeal. In reply to the aforesaid application, the respondent no.1 contended that though the document alleged to be brought on record are public document but there is no relevancy of these documents for the just and proper decision of the case. It is contended by the respondent no.1 in the reply that moreover, it is sordid attempt on the part of the appellant to bring these documents on record to patch up his weak case as the ld. Trial court in para 30 of the judgment has discussed in details and examined the relevancy of these documents. Respondent no.1 in his reply denied the averments made in the application of the appellant and prayed for dismissal of the application.

14 I have heard the arguments on behalf of ld. Counsel for the appellant as well as ld. Counsel for the respondent no.1. Apart from oral argument, the ld. Counsels for parties i.e. Appellant and respondent no.1 have also filed the written argument/submission. 15 Ld. counsel for appellant argued that instant appeal pertains to the plot bearing 60 ad­measuring 200 sq. yards comprising in Khasra No.17/11 situated at Village Nangli Sakrawati, Delhi known as Nangli Vihar(Colony) presently known as Arjun Park B Block, Delhi and in connected appeal arising out of suit No.454/2006 titled as Smt. Sunita RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

Vs. Dharam Dass & ors., pertains to adjacent plot no. 61 and 62 ad­ measuring 586 sq. yards and all three plot makes a compact block as all are situated adjacent to each other. Counsel for appellant also submitted that appellant has placed on record the layout plan of the locality wherein the suit plots in both the suits are shown as plot no.60,61 and 62 but, on the other hand, respondent/ defendant no.1 has been alleging that the numbers of the suit property as plot nos. 80,81,89 and 90 falls in colony Jai Park. Counsel for appellant also submitted that Local commissioner was appointed by ld. Trial court for the purpose of identification of the plots and local commissioner has filed the report. He further argued that the Local commissioner after making survey of the suit property on the spot, gave the report that site plan supplied by the appellant /plaintiff to the local commissioner is correct as per site. Counsel for the appellant submitted that the sale deed upon which the respondent no.1 has relied is pertaining to the different plot than the suit land/plots. He further submitted that respondent no.1 has miserly failed to prove that how and which manner the sale deed relied upon by the respondent no.1 is pertaining to the suit plot involved in the both suits and the area is known as Jai Park. Counsel for appellant also submitted that appellant has clearly proved the suit plot involved in the both the suits are plot no.60,61 and 62 being part of colony known as Nangli Vihar and also known as B­ RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

block, Arjun Park, New Delhi and local commissioner has also proved the said fact. Counsel for the appellant submitted that the application under Order 41 rule 27 CPC may also be allowed and impugned judgment passed by ld. Trial court may be set aside. 16 On the other hand, ld. counsel for the respondent no.1 submitted that appellant in collusion and conspiracy with respondent no.2 to 10 with an attempt to grab the property of the respondent no.1, has filed the instant suit. Counsel for respondent no.1 also submitted that respondent no.1 has purchased the property from the registered owners vide registered sale deed. He further argued that appellant did not produce any single document or evidence of any nature to show that appellant has raised boundary wall over the suit property. However, respondent no.1 through his attorney has raised the boundary wall over the suit property. He further submitted that the respondents no.2 to 10 do not have any right, title or interest to the suit property and the same belongs to the respondent no.1. Counsel for the respondent no.1 also submitted that ld. Trial court has discussed in detail about the report of local commissioner and has rightly negated the same. He further argued that appellant has no right to prove the alleged documents which have been manufactured solely to take illegal possession of the respondent's property. It has been argued that the alleged sale deed does not mention RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

the alleged numbers when the same has been allegedly executed on the same day. Counsel for respondent no.1 argued that it was the primary duty of the appellant to prove that the respondents/defendants are in possession of his land, however, the appellant has been unable to prove either his possession or title or any interest or any other right in the suit property. He submitted that infact it is appellant who wanted to grab the property of respondent no.1. Counsel for respondent no.1 also submitted that appellant has filed the application under Order 41 Rule 27 CPC, so as to fill up the lacunae or to patch up the weak points of the case. The counsel for respondent no.1 submitted that there is no infirmity in the judgment passed by the ld. Trial court and the instant appeal as well as the application under Order 41 Rule 27 deserves to be dismissed. 17 I have considered the rival submissions and gone through the record as well as carefully perused the file. 18 Before coming to the appeal, firstly, I shall deal the application under Order 41 Rule 27 CPC read with Section 151 CPC. By the application under Order 41 Rule 27 read with Section 151 CPC, the appellant is seeking permission to file the additional documents and to lead additional evidence. As per the appellant, the appellant wants to produce on record Khatauni of land holding of the persons as mentioned in para 5 of the application and particularly of the land bearing Khasra RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

No.17/11 of village Nangli Sakrawati, which are in two part i.e.17/11 (2­8)min and 17/11(4­5)min and certified copy of relinquishment deed dt. 24/10/1983. Appellant contended that these documents are public document and authenticity of the said documents are beyond reasonable doubt. It is the contention of the appellant that at the time of trial of the present suit, the relinquishment deed dt. 24/10/1983 and khatauni of the land belonging to respondent no.2 to 10 was not in the knowledge, power and possession of the appellant and hence, appellant could not produce the same before the trial court. It is also contention of the appellant that so as to prove the aforesaid documents, appellant wants to summon concerned official of the office of concerned Sub­Registrar. As per appellant, additional evidence which the appellant wants to lead is necessary and material in order to resolve the real controversy involved in the present case. However, respondent no.1 contended that the appellant wants to fill up the lacuna so as to patch up the weak points in the case by moving the present application. The only ground of the appellant is that during the trial the relinquishment deed dt. 24/10/1983 and khatauni of the land belonging to respondent no.2 to 10 was not in the knowledge, power and possession of the appellant and hence, appellant could not produced the same before the trial court. The respondent contended that the ld. Trial court had discussed about the relevancy of the aforesaid RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

documents sought to be taken on record by the appellant. Perusal of the judgment passed by ld. Trial court, it is apparent that ld. Trial court has discussed the relevancy of the aforesaid documents. Hence, it was incumbent upon appellant/plaintiff to produce the aforesaid documents before the trial court and proved the same in accordance with law, which he wanted to produce and prove by way of the present application. Contention of the appellant at this stage that he was not having knowledge, power and possession of the relinquishment deed dt. 24/10/1983 and Khatauni of the land belonging to respondent no.2 to 10, during the trial of the suit is not tenable and on the said ground the application can not be allowed.

19 In the judgment titled as Malayalam Plantation Limited Vs. State of Kerala and anr. (2010)13 SCC 487, wherein Hon'ble Apex court observed as under:

16. If any petition is filed under Order 41 rule 27 in an appeal, it is incumbent on the part of the appellate court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevancy/bearing on the issues involved. It is trite to observe that under Order 41 Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the trial court has illegally RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary in order to enable the appellate court to pronounce the judgment or any other substantial cause of similar nature.

17. It is equally well settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case. Adducing additional evidence is in the interest of justice. Evidence relating subsequent happenings or events which are relevant for disposal of the appeal, however, it is not open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirements of Order 41 Rule 27 CPC. Additional evidence cannot be permitted at the appellate stage in order to enable other party to remove certain lacunae present in that case. 20 As discussed above, the documents sought to be filed and the additional evidence sought to prove the said documents by the appellant can not be allowed at this stage as same appears to have been filed so as to fill up the lacunae of the case of appellant. Hence, the RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

application under Order 41 rule 27 read with section 151 CPC is dismissed.

21 Now, coming to the present appeal, the appellant has mainly challenge the impugned judgment passed by ld. Trial court, against the findings of ld. Trial court qua issue no.1 ,2 and 3. Ld. Trial court has dealt the issue no.1, 2 and 3 together being interconnected and decided the issue no.1,2 and 3 against the appellant/plaintiff and in favour of the respondent/defendant no.1. Issue no. 4 has been decided against the respondent /defendant no.1 and in favouar of the appellant/plaintiff. The issue no.5 and 6 have been decided by ld. Trial court in favour of the appellant/plaintiff and against the respondent/defendant no.1. 22 The appellant/plaintiff, so as to prove his case has examined as many as seven witnesses. The respondent/defendant no.1 has examined two witnesses. The respondent no.1 is admittedly in possession of the suit property, however, the appellant's contention is that the respondent no.1 is in wrongful possession of the suit property. As per appellant, the respondent no.1 has failed to prove as to how and which manner the sale deed relied upon by the respondent no.1 is pertaining to the suit property. The case of the appellant is that the instant appeal pertains to the plot no.60 ad­measuring 200 square yards and in connected appeal arising out of suit no. 454/2006 titled as Smt. Sunita RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

Vs. Dharamdass & ors., pertains to the adjacent plot no. 61 and 62 ad­ measuring 586 square yards, comprising in Khasra No. 17/11, situated at village Nangli Sakrawati, Delhi known as Nangli Vihar (Colony) presently known as Arjun Park, B­Block, Delhi. The main contention of the appellant is that the suit property involved in both connected matters are plot nos. 60,61 and 62 and same are different from plots no.80,81,89 and 90 and area was never known as Jai Park. It is settled proposition that it is the duty of the person who asserts a particular fact to prove and not upon the person who denied the same. The appellant before the trial court relied upon the sale deed Ex.PW1/3, but, on the other hand, the respondent no.1 also relied upon the sale deed Ex.DW1/1 which is prior in time to the sale deed relied upon by the appellant. The contention of the appellant is that the sale deed relied upon by the respondent no.1 is pertaining to different plots than the plots as claimed by the appellant. 23 The trial court has appointed the Local Commissioner for the purpose of identification of the plots. Local commissioner has given her report which is Ex.PW3/1. I have perused the report of the Local Commissioner. In the report of Local Commissioner vide Ex.PW3/1, it is mentioned that at the time of visit, the local residents were present at the suit premises and local commissioner had recorded the statement of Sh. Joginder Singh, Sh. Lubar Ram and Sh. Vijender RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

Singh on the proceeding sheets and took their signatures. It is further mentioned in the report Ex.PW3/1 that according to the residents of the area the suit premises which is a big opened vacant area divided into three plots bearing no. 60,61 and 62 and as per the local residents about 10 years back this colony was known as Nangli Vihar, Delhi, but now, it is named as Arjun Park, B­block, Delhi. The local commissioner had further stated in report Ex.PW3/1 that the site plan supplied to her by the counsel for the plaintiff is correct as per the site and she had taken the signatures of local residents namely Joginder Singh, Vijender Singh and Lubar Ram on the site plan and they had admitted the correctness of the site plan. However, the respondent no.1 contended that the report of the local commissioner can not be relied upon as she had only gone by the statement of some of the local residents/persons who gathered at the spot. The local commissioner Ratna Saini has been examined as PW3. In her cross examination LC, PW3 deposed that she did not ask the master plan of the area and also did not asked the parties to show their documents with respect to the suit property. PW3 further deposed in her cross examination that the area was a big plot but the residents told her that they are three plots in number and in her presence parties of the suit has identified the said plots as plot No.60 and the said fact has been confirmed by the local residents. In cross examination, PW3 also deposed RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

that no body including plaintiff and defendants, shown her any document with regard to the plot or with regard to the area and she took the version of local residents as gospel truth and concluded her report. 24 The LC has only recorded the statement of three witnesses who were stated to be the local residents and further the LC has taken the statement/version of the local residents as gospel truth, this itself shows that the report of local commissioner is not reliable. The report of the local commissioner is based upon hearsay, rather then any concrete evidence gathered at the spot. The LC has not gone through any document and also admittedly did not ask the parties to the suit or the witnesses at the spot, to produce or show any document with respect to the suit property. Even, the admission of the LC that she took the version of the local residents as gospel truth,is itself sufficient to show that LC has given her report in a very casual manner and hence, same can not be said to be a genuine report. Therefore, the report of local commissioner has no help for appellant/plaintiff.

25 Further, the sale deed Ex.PW1/3 relied upon by the appellant / plaintiff does not mention the plot numbers and there has been no cogent explanation for non­mentioning of the plot numbers in the sale deed. However, the number as 60 and 61 find mentioned in the declaration Ex.PW1/4 purportedly executed by Sh. Narain Singh, RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

respondent/defendant no.2, but, he has also not been examined as a witness. Perusal of the declaration Ex.PW1/4, it is apparent that it does not bear the signature of the appellant / plaintiff. Otherwise also, it has nowhere been pleaded by the appellant / plaintiff that he has seen the defendant signing of the said document. There is no satisfactory explanation forthcoming as to why the plot numbers does not find mentioned in the registered sale deed, whereas the same have been find mentioned in the declaration Ex.PW1/4. Hence, I am in agreement with the observation of ld. Trial court that the declaration Ex.PW1/4 has not been proved as per law. Further, the appellant / plaintiff has not examined himself and instead of examining himself, the appellant/ plaintiff has examined his G.P.A holder as PW1. The PW1 has relied upon the GPA dt. 29/07/1987 executed in his favour vide Ex.PW1/1. However, it is a settled proposition of law that GPA can only state / depose the facts which are in his personal knowledge. GPA can not deposed on the facts on behalf of the appellant / plaintiff which are not in his personal knowledge. Otherwise also, the GPA can not prove the declaration Ex.PW1/4 as the GPA holder became the attorney only in the year 1987. PW1 was appointed as GPA holder of appellant / plaintiff in the year 1987, however, the alleged sale deed Ex.PW1/3 was executed in the year 1984, therefore, there is also no cogent and trustworthy RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

explanation as to how the PW1 was handed over possession of the suit property prior to his becoming GPA holder.

26 Moreover, the appellant / plaintiff has failed to establish that the plots bearing no.60,61 and 62 in both the connected cases, are different from the plot no.80,81, 89 and 90 and also that area was never known as Jai Park and also failed to examine the revenue officials or did not produce the revenue records before the ld. Trial court so as to establish the appellant / plaintiff's case that plots in question are different and appellant / plaintiff has better title than the respondent / defendant no.1, who is admittedly in possession over the suit property. It was incumbent upon the appellant / plaintiff to prove that he was the owner of the suit properties in question and has better title of the suit property, then that of the respondent/defendant no.1, but, the appellant / plaintiff failed to prove the same. Hence, I am of the considered view that there is no infirmity in the findings of ld. Trial court in respect of the aforesaid issues no. 1,2 and 3 and same does not require any inference. 27 Therefore, keeping in view the above discussion, I am of the considered opinion that there is no merit in the present appeal. There is no infirmity in the judgment passed by the ld. Trial court. The present appeal deserves to be dismissed. Accordingly, the appeal is dismissed.

RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

28 Trial court record be sent back alongwith copy of this judgment.

29 Appeal file be consigned to record room.

ANNOUNCED IN THE OPEN COURT ON 28/04/2014 (LAL SINGH) ADDL. DISTRICT JUDGE­03(SW) DWARKA COURTS, NEW DELHI RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

RCA­03/13 Mahabir Singh Vs. Dharam Das & ors.

28/04/2014

Present:           None 

Vide my separate judgment of even date, the appeal as well as the application under order 41 Rule 27 read with section 151 CPC is dismissed.

Trial court record be sent back to ld. Trial court alongwith the copy of the judgment.

Appeal file be consigned to Record Room.

(LAL SINGH) ADJ­03/ DWARKA COURTS/N.D. 28/04/2014 RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.

RCA­03/13 Mahabir Singh Vs. Dharamdass & Ors.