Delhi District Court
2 vs . on 13 July, 2018
1
IN THE COURT OF SH. FAHAD UDDIN: CIVIL JUDGE-04:
CENTRAL DISTRICT: TIS HAZARI COURT: NEW DELHI
CS No. 93639/16
1.) Sh. Junaid Ali
S/o Sh. Karimullah
R/o 3244, Kucha Tara Chand,
Daryaganj, New Delhi,
2.) Mst. Farzana Begum
W/o Sh. Raisuddin
R/o 556, Baoli Gate,
Nizamuddin West, New Delhi
3.) Mst. Nargis
W/o Sh. Shafiqueddin
R/o 1667, Kucha Dakhani Rai,
Daryaganj, New Delhi-110002.
..............Plaintif
Vs.
1.) Mohd. Noor
1050, Phatak Mufti Walan
Darya Ganj, New Delhi.
2.) Mohd. Abid
1050, Phatak Mufti Walan
Darya Ganj, Delhi.
............Defendant
Date of filing : 04.12.2015
Date of Institution : 05.12.2015
Date of pronouncing judgment : 13.07.2018
Suit for Possession with consequential relief of
injunction.
CS No. 93639/16
Junaid Ali & Ors. Vs. Mohd. Noor
Date of Judgment 13.07.2018 Page No 1 of 39
2
JUDGMENT
Vide this judgment, I shall dispose of the present suit for possession with consequential relief of injunction filed by the plaintiffs against the defendants. The brief case of the plaintiffs as set out in the plaint may be described as under:-
Plaintiff's case as per the plaint:-
1. It is the case of the Plaintiffs that the plaintiffs are the owners of property bearing no.1050, Phatak Muftiwalan, Tiraha Behram Khan, Darya Ganj, New Delhi, built on free hold plot measuring 301 sq. yards . The plaintiffs purchased the said plot from Sh. Rattan Lal Saini, S/o Sh. Nanak Chand and Sh. Parminder Singh and Sh. Harminder Singh vide three regd. Sale deeds duly regd. On 15.03.2010, 20.07.2010 and 20.07.2010 in the ratio of ½, ¼ and ¼ respectively. The plaintiffs submitted in the plaint that on 19.09.2015, one Smt. Khurshida had filed a suit against defendant no.1 and plaintiff no.1 titled as 'Khurshida Begum Vs. Mohd. Noor & Anr'. In the said suit, the plaintiff no.1 filed his written statement and submitted that he was the lawful owner and he never gave the premises to anyone other than defendant no.1 Mohd. Noor. The plaintiff no.1 herein did not enter into any CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 2 of 39 3 contract with anyone else including defendant no.2. In the month of February 2014, Mohd. Noor I.e defendant no.1 had approached plaintiff no.1 herein and took a four bedroom flat on 3rd floor of the suit property from him @ Rs.20,000/- p.m. and subsequently took the remaining two flats at the monthly charge of Rs. 15000/- p.m each on the same floor. Later on, Mohd.
Noor/defendant no.1 in connivance with defendant no.2 handed over the possession of a three bed room flat to Smt. Khurshida and the remaining two flats to defendant no.2 in order to cheat the plaintiffs.
Thereafter, a sale deed was executed by the plaintiffs in favour of Smt. Nilofer, W/o Sh. Mohd. Taqi whereby the plaintiffs sold the portion measuring 62 sq. m on the third floor upto ceiling level without roof rights being part of the suit property. In this way Smt. Nilofer became the owner of the said flat/portion. The plaintiffs submitted that they are the owners of the property in occupation of defendant no.2 and defendant no.2 is in illegal and unauthorized possession and use of the same. The defendants are neither the owners of the premises nor tenants therein and for this reasons, the defendants have no legal rights to retain the possession of four bedroom flat and three bedroom flat on third floor of the property as shown in red color in the site CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 3 of 39 4 plan.
2. The plaintiffs submitted that after filing of the written statement, in the aforementioned suit titled as 'Khurshida Begum Vs. Mohd. Noor & Anr.' , the plaintiffs approached the defendants and required them to vacate and handover the possession of the said flats to the plaintiffs. However, the defendants paid no heed and the plaintiffs once again approached the defendants on 16.10.2015 and requested them to vacate and handover the possession of the flat at 3rd floor in property no. 1050, Phatak Muftiwalan, Darya Ganj, New Delhi (suit property) as shown in red in the site plan. However, the defendants refused to handover the possession of the said flat to the plaintiffs. Thereafter, the plaintiffs got served a legal notice dt. 19.10.2015 to the defendant but despite receipt of the said notice, the defendants did not vacate the said two flats as shown in red in the site plan attached. The plaintiffs have submitted that the defendants are trespassers and are in illegal and unauthorized occupation of the flats in question. The defendants have no right to remain in possession of the premises/flats in question. It is the case of the Plaintiffs that the defendants threatened the plaintiffs to handover the possession of the flats CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 4 of 39 5 in question to any third party and to create third party interest therein. The said threats of the defendants are illegal, improper , unauthorized and malafide and the defendants are liable to vacate and handover the possession of the said flats to the plaintiffs. The plaintiffs reiterated that they are the owners and the defendants are in illegal and unauthorized possession of the suit property. Thus, in this background the present suit has been filed by the Plaintiffs against the defendants for recovery of possession and consequential relief of inunction. In the prayer clause the Plaintiffs have prayed for award of the following reliefs:-
(a) a decree of possession be passed in favour of the plaintiffs and against the defendants with respect to one flat i.e. three bed room flat on third floor of property no.1050, Phatak Muftiwalan, Darya Ganj, Delhi (as shown red in the site plan attached) and its vacant physical possession be got delivered to the plaintiffs.
(b) a decree of permanent injunction be passed in favour of the plaintiffs and against the defendants thereby restraining the defendants from handing over the physical possession of the said flat to any other person than the plaintiffs and from creating third party interest therein in any manner.CS No. 93639/16
Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 5 of 39 6 Defendants' case as per the written statement:-
3. Written statement to the suit of the plaintiff had been filed on behalf of defendant no.2 only on 01.02.2016. No written statement was filed on behalf of defendant no.1. Vide order dt. 05.05.2016, defence of the defendant no.1 was stuck off and vide order dated 02.09.2016, defendant no.1 was proceeded ex-parte.
In the written statement, the defendant no.2 raised certain preliminary objections which are as under:
(a) that the suit of the plaintiff is not maintainable in the eyes of law and the same is liable to be dismissed on the ground of non joinder of the parties.
(b) that the suit is not maintainable and is liable to be dismissed on the ground that requisite court fees has not been affixed on the plaint.
(c) The suit of the plaintiff is not maintainable being without cause of action and the same is liable to be dismissed.
(d) that the plaintiff has concealed the material fact from the court and the plaintiff have not come with clean hands before the court.
(e) the suit premises measuring as 301 sq. yards as stated by the plaintiffs is not demarcated partitioned, distributed between the CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 6 of 39 7 alleged owners and no documents has been filed by the plaintiff to this effect.
4. In the preliminary objections, the defendant no.2 submitted that the plaintiffs and defendant no.1 have colluded with each other. The defendant no.2 submitted that Rs.20 lacs had been paid by defendant no.2 to defendant no.1, these facts have not been disclosed by the plaintiff in the suit and this amount of Rs.20 lacs was paid on account of the sale deed of H.No.1050, Phatak Muftiwalan, Tiraha Behram Khan , Darya Ganj, New Delhi-
02. This amount was paid by defendant no.2 to defendant no.1 in the presence of Sh. Junaid Ali, (plaintiff no.1 herein ) and the remaining balance of Rs.4 lacs was to be paid by defendant no.2 after the execution of sale deed in favour of defendant no.2 and his wife. The amount of Rs.20 lacs was paid by defendant no.2 on 18.03.2013 and the possession was delivered comprising of three room set at the third floor of the suit property. Further, a case u/s 420 IPC was registered vide FIR no.3/2015 at PS Chandni Mahal, Delhi, against defendant no.1 on the complaints made by various victims. The said fact is in the knowledge of the Plaintiffs. The defendant submitted that defendant no.2 is the owner in his own capacity, although the sale deed is not CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 7 of 39 8 executed in his favour by anyone. But the defendant no.2 is paying house tax, got installation of electricity meter in his name and had made several applications to the police and other officials against defendant no.1 and others.
5. In the written statement, the defendant no.2 again reiterated that the defendant no.2 is owner in his own capacity of the suit premises since 18.03.2013 when he had paid Rs.20 lacs on account of the sale deed to be executed in favour of defendant no.2 for Rs.24 lacs out of which 4 lacs are yet to be paid by defendant no.2. The possession of defendant no. 2 is not illegal or unauthorized possession as alleged by the plaintiff. The defendant no.2 is in possession of three room set at the third floor of house no.1050, Phatak Muftiwalan, Tiraha Behram Khan, Darya Ganj, New Delhi. He is assessed by MCD for house tax as well. The defendant no.2 submitted in the written statement that a notice dt. 03.10.2015 was received by defendant no.2 and the same was replied by him vide reply dt. 18.11.2015 through his counsel. The defendant never received notice dt. 19.10.2015. The defendant no.2 is not a trespasser or in illegal, unauthorized occupation of the flats in question. The defendant no.2 is enjoying and residing in the flat CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 8 of 39 9 of 3 room set at the third floor of House no. 1050, Phatak Muftiwalan, Tiraha Behram Khan, Daryaganj, New Delhi, since 18.03.2013 in the capacity of owner. The defendant no.2 is not a trespasser but is the owner in his own capacity as he has paid Rs.20 lacs on account of the sale deed to be executed for Rs.24 lacs and Rs.4 lacs are yet to be paid by defendant no.2 for the purpose of execution of sale deed. The defendant no.2 does not intend to create third party interest in the suit premises as the same are being used for accommodation of his family members. The defendant submitted that there is no question of handing over the flat in question to the plaintiffs as defendant no.2 is enjoying and residing in the said flat as an owner in his own capacity. There is no question to transfer the possession of the suit property to any other person also. Thus, the defendant no.2 for these reasons , has prayed for dismissal of the suit of the plaintiff and awarding of cost in favour of defendant no.2. Replication:
6. Replication to the written statement filed by defendant no.2 was also filed by the plaintiffs wherein they denied the case of the defendants and reiterated their own case as set out in the Plaint. The Plaintiffs denied that the suit is not maintainable on CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 9 of 39 10 the ground of non-joinder of the parties concerned. The plaintiffs submitted that the suit has been properly valued and stamped.
The plaintiffs denied that the plaintiff and defendant no.1 had colluded with each other and concealed the material facts as alleged by the defendant. The plaintiffs further denied that the alleged amount of Rs.20 lacs was paid by the defendant n.2 to defendant no.1 in the presence of Junaid Ali (plaintiff no.1 herein). The plaintiff submitted that the plaintiffs are not concerned with any transaction between defendant no.1 and defendant no.2. The plaintiffs also denied that defendant no.2 is the owner in his own capacity although no sale deed has been executed in his favour by anyone. The plaintiff submitted that the defendant is a trespasser in the property in question and the defence raised by the defendant no.2 is false and frivolous. Thus Plaintiffs again prayed for decree of the suit in terms of the prayer clause of the Palint.
7. It may be noted that vide order dt. 02.07.2016, the application of the plaintiff u/o 39 rule 1&2 CPC was allowed and the defendants were restrained from creating third party interest or parting with the possession of the suit property till the final disposal of the suit. Vide the said order dt. 02.07.2016, on the CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 10 of 39 11 basis of the pleadings of the parties, the following issues had been framed for adjudication by the court:-
Issues:-
(1) Whether the plaintiffs have valued the suit properly, if not, its effect? OPP (2) Whether the suit is bad for mis-joinder or non-joinder of necessary parties? OPP (3) Whether the plaintiffs are entitled to the decree of possession as prayed for? OPP (4) Whether the plaintiffs are entitled for decree as prayed for? OPP (5) Relief.
Plaintiff's evidence:-
8. In order to prove their case, plaintiff no.1 Sh. Junaid Ali got himself examined as PW1. He tendered his evidence by way of affidavit which is Ex.PW1/A and he relied upon the documents Ex.PW1/1, Ex.PW1/2, Ex.PW1/3, Ex.PW1/7, Ex.PW1/8, Ex.PW1/8A and Ex.PW1/9. Ex. PW-1/4, Ex. PW-1/5 and Ex. PW-1/7 were not on record and hence were de-exhibited. The details of the documents relied upon by PW-1 are as under:-
(i)Photocopy of Sale deed in favour of plaintiff no.1 as Ex.PW1
(ii) Photocopy of Sale deed in favour of plaintiff no.3 as Ex.PW1/2
(iii) Photocopy of Sale deed in favour of plaintiff no.2 as Ex.PW1/3
(iv)Ex.PW1/7 is the site plan of the property in question CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 11 of 39 12
(v) Photocopy of the legal notice dt 30.10.2015 is Ex. PW-1/8.
(vi)Ex.PW1/8A is the photocopy of reply to the notice and the same is dt.18.11.2015.
(vii) Ex.PW1/9 are the Photocopy of postal receipts.
Thereafter on conclusion of cross examination of PW-1 , vide order dated 05.11.2016 PE was closed .
Defendant's Evidence:-
9. To disprove the case of the plaintiff, the defendant no.2 got examined himself as D2W1 . He tendered his evidence by way of affidavit as Ex.D2W1. No document as mentioned in the said affidavit was relied upon by defendant no.2 as they were not taken on record and de-exhibited. Since the defence of defendant no.1 had already been struck off by the court vide order dt. 05.05.2016, and defendant no.1 was proceeded ex-parte vide order dated 02.09.2016, no evidence to disprove the case of the plaintiff was led by the defendant no.1. Hence, on 21.01.2017, DE was closed.
Findings:-
10. I have heard the submissions made by the Counsel for Plaintiff as well as Attorney of defendant no.2 and have also perused the case record in detail. After hearing the submissions CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 12 of 39 13 of the parties as well as perusal of the evidence/material available on record, the issue wise findings of this court are as under:-
Issue no.1:-
Whether the plaintifs have valued the suit properly, if not, its efect? OPP
11. The onus to prove this issue is on the Plaintiff. In preliminary objection no. 2, in the written statement ,the defendant submitted that the present suit filed by the Plaintiff is not maintainable and is liable to be dismissed on the ground that the requisite court fees is not affixed on the Plaint. Further in para no.17 of the reply on merits in the written statement, the defendant submitted that the value of the flat in question was Rs 24,00,000/- on 18.03.2013 and now the cost might have been increased and for this reason the value of the suit can be assessed at Rs 30, Lacs. On the other hand, in the replication the Plaintiff denied that the requisite court fee is not affixed on the plaint. The Plaintiff submitted that the suit is properly valued and properly stamped. The objection raised by the defendant regarding court fee is false and frivolous.
12. It may be noted that by way of the present suit the Plaintiff CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 13 of 39 14 is seeking the relief of possession as well as the relief of injunction against the defendants. In the Plaint, the Plaintiffs submitted that they are the owners of property no. 1050, Phatak Muftiwalan, Tiraha Behram khan, Daryaganj, New Delhi built on free hold plot measuring 301 sq yds, having purchased the same by way of three regd. sale deeds dated 15.03.2010, 20.07.2010 and 20.07.2010. The Plaintiffs submitted that in the month of February 2014, defendant no.1 had approached Plaintiff no.1 and took 4 bed room flat on third floor of the said property from him @ Rs 20,000/- per month and subsequently took the remaining 2 flats @ monthly charge of Rs 15,000/-each on the same floor.
Later on defendant no.1 in connivance with defendant no.2 handed over the possession of a 3 bed room flat to Smt. Khursheeda and the remaining 2 flats to defendant no.2 in order to cheat the Plaintiffs. The Plaintiffs are the owners of the property in occupation of defendant no.2 and he is in illegal and unauthorized possession and use thereof. For this reason, the Plaintiffs have valued the present suit for relief of possession @ Rs.1,80,000/- i.e. equivalent to yearly charges for use and occupation and requisite court fee was paid and for the relief of injunction at fixed rate of Rs 130/- for which the requisite court fee was also paid. In the written statement in para no.17 of reply CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 14 of 39 15 on merits, the defendant no. 2 has not disputed the court fee paid by the Plaintiff so far as the relief of injunction is concerned.
13. It is worthy to mention that section 7 of the court fees Act deals with Computation of fees payable in certain suits. The said section provides that the amount of fee payable under this Act in the suit next hereinafter mentioned shall be computed as follows:-
Section 7 (xi) Between landlord and Tenant- In the following suits between landlord and tenant:-
(CC) for the recovery of immoveable property from a tenant including a tenant holding over after the determination of tenancy, According to the amount of the rent of the [immoveable property] to which the suit refers, payable for the year next before the date of presenting the Plaint.
This clause of section 7 of the court fees Act governs cases between landlords and tenants. Sub clauses (a), (b) and (cc) relate to cases by landlords against the tenants, while the rest of the sub clauses i.e. sub-cll (c) to (f) deal with suits by tenants against the landlords. The words 'landlord' and 'tanants' include 'ex-landlord' and 'ex-tenant'. But it must be remembered that the clause is not comprehensive to include all kinds of cases between landlords and tenants. In determining the question whether a suit is between landlord and the tenant and therefore within the four corners of the clause , the allegations in the plaint are to be CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 15 of 39 16 taken into account and not the averments in the written statement. If, however, the defendant succeeds in establishing on the record that the relationship of landlord and tenant does not subsist between the parties , the Plaintiff will be unsuited and he will not be allowed to fall back upon the alternative plea that the defendant is a trespasser liable to damages for use and occupation . If the defendant fails to establish his contention, the landlord will be entitled to his remedy. A suit against a tenant and other persons, or suit by an alleged tenant against the landlord and a third person, or a suit by an alleged tenant against an alleged trespasser at the instigation of the landlord or a suit requiring adjudication of title , does not come within the purview of this clause. Sub clause (cc) was inserted by Court fees Amendment Act of 1908. The effect of this amendment is to take the suits mentioned therein out of clause (v) of section 7 and place them under a new category. If a landlord sues a tenant for possession of the immoveable property , the court fee has to be paid under this sub-clause even if the defendant pleads that he is an occupancy tenant. The valuation for the purposes of jurisdiction and court fees, put for ejecting the tenant from the let accommodation as well as the encroached accommodation, according to the annual rental value of the let accommodation in accordance with section 7 (xi) (cc) of the Act is proper. A suit for ejectment of a tenant falls under this sub-clause and the court- fee has to be paid on one year's rent and not on the market value. A suit under this sub-clause evidently means a suit for possession as between a landlord and a tenant. Suits between two parties for possession without the two being related as landlord and tenant are not within its scope. Where the Plaintiff CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 16 of 39 17 does not recognize the defendant as his tenant and sues him as a trespasser on the basis of his title , this sub-clause will have no application.1 Further section 7 (v) of the Court-fees Act deals with suits for possession of land, houses and gardens. The said section provides that:- in suits for possession of land, houses and gardens-according to the value of the subject matter; Clause (e ) of the said section provides that :- for house and gardens: where the subject matter is a house or garden-according to the market value of the house or garden. Thus under clause (v) of section 7 , the court fee has to be paid on the value of the subject matter and that value does not rest with the Plaintiff but the clause itself provides a statutory basis for the valuation of the subject matter. It is a settled law that the clause applies to suits for mere possession. The test to determine whether or not a suit is one for possession simply is whether the relief as to possession of land is the sole or the main relief in the case. Where possession is claimed not as a sole or main relief but as an additional relief, the suit is to be valued so far as relief regarding possession is concerned under this clause. Suits for possession of land etc. whatever may be the nature of the possession, proprietary, under proprietary, lessees's possession , tenants possession or mortgagees possession should be treated as suits for possession within the meaning of this clause.2 In the case of 'Lajwanti & Ors. v. Bahadur Singh & 1V.K Diwan, "Sanjiva Row's Law on Court Fees and Suits Valuation" , 563-575, (Butterworths, New Delhi 9th edition, 2002). 2 V.K Diwan, "Sanjiva Row's Law on Court Fees and Suits Valuation" , 452-459, (Butterworths, New Delhi 9th edition, 2002).
CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 17 of 39 18 Ors.' 1 , the Hon'ble Delhi High Court observed that:- "The suits
which are contemplated by Section 7(v)(e) are suits based on title where a total stranger and usurper has got into the possession of the house initially by an overt act or claims an independent title."
14. Thus, on the basis of the position of law discussed above , this court is of the opinion that the Plaintiff has not properly valued the present suit for the purposes of court-fees and jurisdiction. The Plaintiff has valued the present suit under section 7 xi (cc) according to the amount of the rent of the [immoveable property] to which the suit refers, payable for the year next before the date of presenting the Plaint. However, as observed above, a suit under this sub-clause evidently means a suit for possession as between a landlord and a tenant. Suits between two parties for possession without the two being related as landlord and tenant are not within its scope. Where the Plaintiff does not recognize the defendant as his tenant and sues him as a trespasser on the basis of his title , this sub-clause will have no application. A suit against a tenant and other persons, or suit by an alleged tenant against the landlord and a third person, or a suit by an alleged tenant against an alleged trespasser at the instigation of the landlord or a suit requiring adjudication of 1 AIR 1982 Delhi 67, 18 (1980) DLT 449, 1981 RLR 30., decided on 29.08.1980.
CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 18 of 39 19 title , does not come within the purview of this clause. Since, as per the case of the Plaintiff, the defendant no.1 had taken a 4 bed room flat on third floor of the property in question @ Rs 20,000/- per month and subsequently took 2 other flats at monthly charge of Rs 15,000/- each and the defendant no.1 in connivance with defendant no.2 handed over the possession of a 3 bed room flat to Smt. Khurshida and remaining 2 flats to defendant no.2 in order to cheat the Plaintiff's and as the defendants have been termed as illegal and unauthorized occupants as well as trespassers in the suit property, the Plaintiff should have valued the present suit as per the market value in terms of section 7 clause V ( e) of the Court Fees Act. Further, it may be noted that the main relief sought by the Plaintiff in the present case is of possession against the defendant no.2 who has been ranked as trespasser in the suit property. There is no relationship of landlord and tenant between the Plaintiff and defendant no.2 as per the averments of the Plaint and defendant no.2 is a complete stranger to the Plaintiff. Hence in the considered opinion of this Court , the present case falls under section 7 clause v (e) of the Court fees Act and should have been valued according to the market value of the property in question. Hence, as the Plaintiff has failed to discharge the onus of this CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 19 of 39 20 issue and to prove that he has properly valued the present suit for the purpose of court fees and jurisdiction, for the reasons mentioned above, the present issue is decided against the Plaintiff to the extent of court fees and valuation. Since no evidence has been led on behalf of the parties to assess the market value of the flat in question, the later part of the issue cannot be decided due to lack of evidence and thus same remains unanswered due to this reason.
Issue no. 2:-
Whether the suit is bad for mis-joinder or non- joinder of necessary parties? OPP
15. The onus to prove this issue is on the Plaintiff. In preliminary objection no.1 in the written statement, the defendant has raised an objection that the present suit as filed by the Plaintiff is liable to be dismissed on the ground of non-joinder of the parties concerned. In the replication the Plaintiff has denied these averments made by the defendant. The Plaintiff submitted that the objection as raised by the defendant is vague and ambiguous. The defendant has not submitted as to who are the necessary parties which have not been so impleaded by the Plaintiff.
16. It is worthy to mention that order 1 CPC deals with the CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 20 of 39 21 parties to a suit. It also contains provisions for addition, deletion and substitution of parties, joinder, misjoinder and non-joinder of parties and objection as to misjoinder and non-joinder. Order 1 rule 3 provides for joinder of defendants. It states that all persons may be joined in one suit as defendants if the following two conditions are satisfied:-
(i) The right to relief alleged to exist against them arises out of the same act or transaction; and
(ii) The case is of such a character that if separate suits were brought against such persons, any common question of law or fact would arise.
17. The word 'and' makes it clear that both the conditions are cumulative and not alternative. The underlying object of rule 3 is to avoid multiplicity of suits and needless expenses. There is an essential distinction between a necessary party and a proper party to a suit. A necessary party is one who presence is indispensable to the constitution of the suit, against whom the relief is sought and without whom no effective relief can be passed. A proper party is one in whose absence an effective order can be passed, but whose presence is necessary for a complete and final decision on the question involved in the proceeding. In other words in the absence of a necessary party CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 21 of 39 22 no decree can be passed, while in absence of a proper party a decree can be passed so far as it relates to the parties before the court. His presence, however enables the court to adjudicate more effectually and completely. Two tests have been laid down for determining the question whether a particular party is a necessary party to a proceeding:-
(i) There must be a right to some relief against such party in respect of the matter involved in the proceeding in question; and
(ii) It should not be possible to pass an effective decree in absence of such a party.
Where a person, who is a necessary or proper party to a suit has not been joined as a party to the suit, it is a case of non- joinder. Conversely, if two or more persons are joined as plaintiffs or defendants in one suit in contravention of order 1 rule 1 and 3 respectively and they are neither necessary nor proper parties, it is a case of misjoinder of parties. The general rule is that a suit cannot be dismissed only on the ground of non-joinder or misjoinder of parties. Nor a decree passed by a competent court on merits will be set aside on the ground of mis-description of the defendant. However, this rule does not apply in case of non- joinder of a necessary party.
CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 22 of 39 23
18. The Plaint shows that the present suit has been filed by the Plaintiff no.1, 2 and 3 against defendant no.1 and 2 for recovery of possession as well as for permanent injunction in respect of the suit property. Though in the written statement the defendant has raised an objection that the present suit is bad for non- joinder of the parties concerned. However, no material averment has been made in regard to this objection as to who are the necessary or proper party in the present suit which have not been so joined by the Plaintiffs in the present suit. In the present suit, the Plaintiffs have submitted that they are the owners of property no. 1050, Phatak Muftiwalan, Tiraha Behram Khan, Daryaganj, New Delhi having purchased the same vide three sale deeds. Defendant no.1 had approached Plaintiff no.1 and took the flat in question at a monthly charge of Rs 15,000/- per month and later on defendant no.1 in connivance with defendant no.2 , handed over the possession of the suit property to defendant no.2 in order to cheat the Plaintiffs. Vide legal notice dated 19.10.2015, the Plaintiffs required the defendants to vacate the flat in question. The defendants are trespassers and are in illegal and unauthorized occupation of the flat in question and thus the defendants are liable to vacate and handover the possession of the flat in question to the Plaintiffs.
CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 23 of 39 24 Moreover, the defendant has not led any evidence to show that the present suit is bad for non-joinder of parties concerned as alleged by the defendant in the written statement. Nor any suggestion has been put in the cross examination of the Plaintiffs witnesses to prove this stand of the defendant. Thus, from the averments made in the Plaint as well as evidence led on behalf of the Plaintiff , this court is of the view that all the necessary parties for the proper adjudication of the present suit are before the court and hence, the objection raised by the defendant regarding non-joinder of parties concerned is without any merit and is liable to be dismissed. Consequently, the present issue is decided in favour of the Plaintiff and against the defendants. Issue no. 3:-
Whether the plaintifs are entitled to the decree of possession as prayed for? OPP And Issue no.4 :-
Whether the plaintifs are entitled for decree as prayed for? OPP
19. For the sake of convenience both issues no. 3 and 4 are being taken up together as they are inter- connected and the onus to prove these issues is on the Plaintiff. In brief , it is the CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 24 of 39 25 case of the Plaintiffs that the Plaintiffs are the owners of property no. 1050, Phatak, Muftiwalan, Tiraha Behram Khan, Daryaganj, New Delhi, built on free hold plot measuring 301 sq yds, having purchased the same from Sh. Rattan Lal Saini, Sh. Parminder Singh and Sh. Harminder Singh by way of 3 registered sale deeds dated 15.03.2010, 20.07.2010 and 20.07.2010 in the ratio of ½, ¼ and ¼ respectively. In the month of February defendant no.1 had approached Plaintiff no.1 and took a four bed room flat on third floor of the said property at Rs 20,000/- per month and subsequently 2 other flats on third floor of the said property at monthly charge of Rs 15,000/- each. Later on defendant no.1 in connivance with defendant no.2 handed over the possession of a 3 bed room flat to Smt. Khursheeda and remaining 2 flats to defendant no.2 in order to cheat the Plaintiffs. The Plaintiffs are the owners of the property in possession of defendant no.2 and defendant no.2 is in illegal and unauthorized possession and use thereof. The defendants are neither the owners nor tenants in respect of the property in question. On 16.10.2015, the plaintiffs requested the defendants to vacate and handover the possession of the flat at third floor in property no. 1050, Phatak Muftiwalan, Daryaganj, New Delhi (suit property) but the defendants refused the same. The Plaintiffs then got served a legal notice dated CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 25 of 39 26 19.10.2015 upon the defendants but despite the said notice the defendants have not vacated the flat in question. The Plaintiffs submitted that the defendants are trespassers and in illegal and unauthorized occupation of the flat in question. Thus, the defendants are liable to vacate and handover the possession of the flat in question to the Plaintiffs. Hence the present suit for recovery of possession and permanent injunction in respect of a flat i.e. 3 bed room flat as shown in the site plan (Ex. PW-1/7) on third floor of the aforesaid property.
20. On the other hand, it is the case of defendant no.2 that the plaintiffs and defendant no.1 have colluded with each other and the defendant no.2 had paid Rs 20 Lacs to defendant no.1. This amount was paid in lieu of sale deed for house no. 1050, Phatak Muftiwalan, Tiraha Behram Khan, Daryaganj, New Delhi-02. The said amount was paid by defendant no.2 to defendant no.1 in presence of Plaintiff no.1 and the remaining amount of Rs 4 lacs was to be paid by defendant no.2 after the execution of sale deed in favour of defendant no.2 and his wife. The said amount of Rs
20 lacs was paid by defendant no.2 on 18.03.2013 and the possession was delivered of the suit property to defendant no.2. A case under section 420 IPC has been registered vide FIR no.
CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 26 of 39 27 03/2015 against defendant no.1 on the complaints of various victims of the fraud of defendant no.1. Defendant no.2 submitted that he is the owner in his own capacity although the sale deed is not executed in his favour by anyone but the defendant no,.2 is paying house tax, got installed electricity connection in his name. The possession of defendant no.2 is not illegal or unauthorized as alleged by the Plaintiffs. The defendant no.2 is enjoying the flat in question in the capacity of owner. The defendant no.2 does not intend to transfer the suit property to any other person as alleged by the Plaintiffs.
21. In order to prove their case against the defendants, the Plaintiffs have got examined only one witness i.e. PW-1 (Plaintiff no.1 himself) who relied upon Ex. PW-1/1, Ex.PW-1/2, Ex. PW-1/3, Ex. PW-1/7, Ex.PW-1/8, Ex. PW-1/8A and Ex. PW-1/9. Ex. PW-1/1 is the photocopy of the sale deed in favour of Sh. Junaid Ali (Plaintiff no.1 ) in respect of ½ undivided share in the freehold property bearing municipal no. 1050, Phatak Muftiwalan, Tiraha Behram Khan, Daryaganj, New Delh-02 for a consideration of Rs 28,96,000/-, executed by Sh Rattan Lal Saini in favour of Plaintiff no.1. Ex. PW-1/2 is the photocopy of the sale deed dated 14.07.2010 in favour of Smt. Nargis (Plaintiff no.3) in respect of ¼ CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 27 of 39 28 undivided share in the freehold property bearing municipal no. 1050, Phatak Muftiwalan, Tiraha Behram Khan, Daryaganj, New Delh-02 for a consideration of Rs 14,50,000/-, executed by Sh.Parminder Singh and Sh. Harminder Singh in favour of Plaintiff no.3. Similarly Ex.PW-1/3 is the photocopy of the sale deed dated 14.07.2010 in favour of Smt. Farzana Begum (Plaintiff no.2) in respect of ¼ undivided share in the freehold property bearing municipal no. 1050, Phatak Muftiwalan, Tiraha Behram Khan, Daryaganj, New Delh-02 for a consideration of Rs 14,50,000/-, executed by Sh.Parminder Singh and Sh. Harminder Singh in favour of Plaintiff no.3. Ex. PW-1/7 is the site plan of the flat in question. Ex. PW-1/8 is the photocopy of the legal notice dated 30.10.2015 issued to Smt. Khurshida on behalf of Smt. Nilofar w/o Sh. Mohd. Taqi. Ex. PW-1/8A is the photocopy of the reply dated 18.11.2015 sent to the advocate of Plaintiffs on behalf of defendant no.2. Photocopy of the postal receipt is Ex. PW-1/9.
22. It may be noted that to prove their ownership of the flat in question , the Plaintiffs have relied upon photocopies of 3 sale deeds i.e. Ex. PW-1/1 which is the photocopy of the sale deed in favour of Sh. Junaid Ali (Plaintiff no.1 ) in respect of ½ undivided share in the freehold property bearing municipal no. 1050, CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 28 of 39 29 Phatak Muftiwalan, Tiraha Behram Khan, Daryaganj, New Delh-02 for a consideration of Rs 28,96,000/-, executed by Sh Rattan Lal Saini in favour of Plaintiff no.1. Ex. PW-1/2 is the photocopy of the sale deed dated 14.07.2010 in favour of Smt. Nargis (Plaintiff no.3) in respect of ¼ undivided share in the freehold property bearing municipal no. 1050, Phatak Muftiwalan, Tiraha Behram Khan, Daryaganj, New Delh-02 for a consideration of Rs. 14,50,000/-, executed by Sh.Parminder Singh and Sh. Harminder Singh in favour of Plaintiff no.3. Similarly Ex.PW-1/3 is the photocopy of the sale deed dated 14.07.2010 in favour of Smt. Farzana Begum (Plaintiff no.2) in respect of ¼ undivided share in the freehold property bearing municipal no. 1050, Phatak Muftiwalan, Tiraha Behram Khan, Daryaganj, New Delh-02 for a consideration of Rs 14,50,000/-, executed by Sh.Parminder Singh and Sh. Harminder Singh in favour of Plaintiff no.3.
Section 61 of the Indian Evidence Act 1872 provides that the contents of documents may be proved either by primary or by secondary evidence. Section 62 of the Evidence Act says that "Primary Evidence means the document itself produced for the inspection of the Court."
Explanation 1 -where a document is executed in several parts, each part is primary evidence of the document.
Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 29 of 39 30 each counterpart is primary evidence as against the parties executing it.
Explanation 2- where a number of documents are all made by one uniform process as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original, thy are not primary evidence of the contents of the original.
Section 63 of the Evidence Act provides for secondary evidence. As per section 63 of the evidence Act-secondary evidence means and includes-
(1)Certified copies given under the provisions hereinafter contained;
(2)Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies, (3)Copies made from or compared with the original (4)Counterparts of documents as against the parties who did not execute them, (5)Oral accounts of the contents of a document given by some peson who has himself seen it.
Section 64 of the Evidence Act says that documents must be proved by primary evidence except in the case hereinafter mentioned. Section 65 provides for the situations wherein secondary evidence may be given of the existence, condition, or contents of a documents , if the case falls in clauses (a) to (g) of the said section.
23. In the case of 'Surinder Kaur v. Mehal Singh & Ors.' 1 , 1 CR No.4696 of 2013.decided on 04.12.2013. CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 30 of 39 31 the Hon'ble Punjab and Haryana High Court observed that:-
admissibility of document is crucial in any trial for it can change the course of entire trial and consequently fate of parties. The Act entails elaborate provisions relating to admissibility of documents. 'Best Evidence Rule' is a golden thread which runs through the provisions relating to admissibility of evidence, and when seen in context of documentary evidence such rule is enshrined in section 64 of the Act which provides that documents must be proved by primary evidence. The best evidence rule requires that if the contents of a writing are to be proved, the document must be proved. Some documents are self- authenticated such as ancient documents, recorded deeds and other documents over 30 years old. However other documents are required to be proved in accordance with the provisions of the Act. Needless to say that in cases where the document cannot be proved by primary evidence secondary evidence to prove the same is permissible under the Act. While the Photostat copy of a document which is accurate reflection of original document is accepted as secondary evidence but it has to be shown that the Photostat copy is authentic and accurate reproduction of the original. This is so because a Photostat copy may be result of manipulation as it is susceptible to purposeful or accidental alteration or incorrect processing. The potential of fraud exists with all Photostat copies as they can be altered through redacting information performing cut and paste job, transparency tape lift-of method, electronic editing etc.
24. Photostat copy of a document is generally sought to be CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 31 of 39 32 admitted as secondary evidence by virtue of Section 63 (2) of the Act which provides that copies of original made from mechanical process ensuring in itself the accuracy of such copies are admissible as secondary evidence. While the Photostat copies can be used for court purposes as evidential documentation but it is desirable that original be examined in all possible cases but when original is not available for reasons beyond one's control, Photostat copy of a document may be examined to reach definite conclusions. However, before that the party seeking to produce the same must show that any of the circumstances mentioned in Section 65 of the Act exists warranting leading of secondary evidence. The Hon'ble Punjab & Haryana High Court referred to the case of 'Smt. J. Yashoda v. Smt. K. Shobha Rani' 1 , wherein the Hon'ble Supreme Court of India observed that:- "The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is 1 2007 (2) RCR (Civil) 840.
CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 32 of 39 33 necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non- production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section." In the case referred above, the Hon'ble Supreme Court while dealing with Section 65 of the Act opined that though the said provision permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. Thus it may be said that before being admitted as CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 33 of 39 34 secondary evidence prepared by mechanical process, the authenticity of the Photostat document has to be established where Photostat copy of a document is produced and there is no proof of its accuracy or of its having been compared with or its being true reproduction of the original, it cannot be considered as secondary evidence. In other words, Photostat copy of a document is not admissible as secondary evidence unless proved to be genuine or is admitted by opposite party. Allowing production of Photostat copy in evidence does not amount to its proof. Its probative value has to be proved and assessed independently. It has to be shown that it was made from original at particular place and time.
25. Consequently, in the light of the above discussion, it may be said that as the Plaintiffs have failed to provide a foundational or factual basis for the admissibility of the secondary evidence in the present case as well as to fulfill the conditions mentioned in section 65 of the Evidence Act, the photocopies of the sale deeds i.e. Ex. PW-1/1, Ex. PW-1/2 and Ex. PW-1/3 are inadmissible in evidence and cannot be regarded as proof of ownership of the Plaintiffs over the suit property. Further in terms of section 59 of the Evidence Act, the oral evidence to prove the contents of the CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 34 of 39 35 said documents is also inadmissible. As the said section provides that - All facts except the [contents of documents or electronic records], may be proved by oral evidence. Moreover, to prove their case against the defendants, the Plaintiffs have relied upon Ex. PW-1/8 which is the photocopy of a legal notice dated 30.10.2015 issued to Smt. Khurshida on behalf of Smt. Nilofar w/o Sh. Mohd. Taqi. The said notice is also not admissible in evidence in view of the position of law discussed above being a photocopy. Further the said notice has not been exchanged between the parties to the present suit. Thus, as the said legal notice has neither been issued on behalf of the Plaintiffs nor PW-1 is the author of the same, he cannot rely upon the said legal notice to prove his case against the defendants. The said document has been exchanged between the parties who are strangers to the present case and to prove the contents of the said document, the person on whose behalf the said legal notice was issued has not been examined in the present case on behalf of the Plaintiffs. Hence, in the considered opinion of this court, the said legal notice cannot be relied upon by the Plaintiffs to prove their case against the defendants. Ex. PW-1/8 A is the photocopy of reply dated 18.11.2015 sent by the counsel of defendant no.2 to the counsel of the Plaintiffs, wherein the CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 35 of 39 36 defendant no.2 has denied the case of the Plaintiffs and reiterated his own case as set out in the written statement.
26. In his cross examination PW-1 stated that they got constructed the property in question upto the level of third floor. He stated that it is correct that he had given the flats on third floor of the property in question to defendant no.1 for Rs 20,000/-, 15,000/- and 10,000/- on rent. However, no evidence has been placed on record on behalf of the Plaintiffs that the suit property was got constructed by them or the flats were given on rent to defendant no.1 as alleged by the Plaintiffs. No rent receipt, no rent agreement has been filed to corroborate the same. No other witness has been got examined on behalf of the Plaintiffs to prove these averments. In the Plaint, the Plaintiffs also submitted that they got a legal notice dated 19.10.2015 issued on the defendants but despite receipt of the said notice, the defendants have not vacated the flats in question. The said notice dated 19.10.2015 has also not been placed on record to prove the said averments made in the Plaint.
27. Though, it is the defence of the defendant in the present case that the Plaintiffs and defendant no.1 colluded with each CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 36 of 39 37 other. The defendant no.2 had paid Rs 20 lacs to defendant no.1 on account of the sale deed of house no. 1050, fatak, Muftiwalan, tiraha Behram Khan, Daryaganj, New Delhi-02. The said amount was paid in the presence of Plaintiff no.1 to defendant no.1 by defendant no.2 and the remaining 4 lacs was to be paid by defendant no.2 after the execution of the sale deed in his favour. The said amount was paid by defendant no.2 on 18.03.2013 and possession of the flat in question was also delivered to defendant no.2 . The defendant no.2 is the owner in his own capacity and is assessed by MCD for house tax as well. No documentary evidence has been placed on record by the defendant no.2 to prove the payment of Rs 20 Lacs to defendant no.1 as alleged by the defendant no.2 or that he is enjoying the flat in question as owner of the same. However, the initial burden of proof to prove their case is on the Plaintiffs in terms of the provisions of section 101 of the Indian Evidence Act. The said section provides that:-
101. Burden of Proof.- whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 37 of 39 38
28. Hence, in the considered opinion of this court, the Plaintiffs have failed to discharge the burden of poof as required under section 101 of the evidence Act. The Plaintiffs have failed to prove that they are the owners of property bearing no. 1050, Phatak Muftiwalan, Tiraha Behram Khan, Daryaganj, New Delhi- 02 by virtue of three sale deeds Ex.PW1/1, Ex.PW1/2 and Ex.PW1/3 as the originals of the said sale deeds have not been produced by the Plaintiffs for the inspection of the court. The photocopies of the said deeds are inadmissible in evidence as the Plaintiffs have not laid the foundations for their admissibility in terms of section 65 of the Indian Evidence Act as discussed in above paragraphs. The plaintiffs have failed to prove that defendant no.1 took the flat in question from Plaintiff no.1 at monthly charge of Rs 15,000/- and later on in connivance with defendant no. 2 handed over the possession of the said flat to defendant no.2 or that the Plaintiffs served a legal notice dated 19.10.2015 on the defendants to vacate the flat in question. Accordingly, for these reasons, the Plaintiffs do not seem to be entitled to the reliefs as prayed for in the Plaint. The defendant no.2 might be a trespasser in the flat in question but the plaintiffs have failed to prove their case against the defendants. Hence, issue no.3 and 4 are decided against the Plaintiffs.
CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 38 of 39 39 Issue no.5:- Relief.
29. Thus, in the considered opinion of this court, on the basis of the evidence/material available on record, the Plaintiffs have failed to prove their case against the defendants, the Plaintiff are not entitled to the reliefs claimed for and as such the present suit is liable to be dismissed for the reasons mentioned above.
The present suit is therefore dismissed. No order as to costs.
File be consigned to record room after due compliance. Announced in the open Court on this 13th day of July 2018. Digitally signed This judgment consists of 39 signed pages. FAHAD by FAHAD UDDIN UDDIN Date: 2018.07.17 16:57:31 +0530 (Fahad Uddin) CJ-04, Central, THC/Delhi 13.07.2018 CS No. 93639/16 Junaid Ali & Ors. Vs. Mohd. Noor Date of Judgment 13.07.2018 Page No 39 of 39