Delhi High Court
Girdhari Lal vs Kailash Chander And Ors. on 1 December, 1997
Equivalent citations: 1998IAD(DELHI)996, 71(1998)DLT177
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
JUDGMENT K. Ramamoorthy, J.
(1) The plaintiff has filed the suit for possession of the plot measuring 200 sq. yds. bearing No. 165 (old) and 329 (New), part of Khasra No. 185/ 150, within the revenue estate of Village Garhi Jharia Maria, Lajpat Nagar, New Delhi, now known as Sant Nagar Colony against seven defendants. According to the plaintiff, the property was purchased from the first defendant by a sale deed dated 9.2.1959. The plot was lying vacant and Sant Nagar Colony was not an authorised one. In the year 1978 the plaintiff came to know that the Colony had been approved by the Dda and the owners of the plots were asked to pay development charges. Pursuant to the demand made by the Dda the plaintiff deposited a sun of Rs. 4,830.00 towards development charges on 30.12.1978. In or about 1981 the plaintiff requested the 7th defendant Mr. Kuldeep Mahajan to look after the plot In the month of March / April, 1982 the plaintiff entered into an agreement for the sal of the plot in favour of defendants-. 5 to 7. The agreement was entered into on 30.4.1982 for a sum of Rs. 1,60,000.00 After the execution of the agreement, the 5th defendant Mr. Raman Malhotra and the plaintiff went to the plot and found that defendants 1 to 4 had trespassed into the land. The matter was reported to the police at the Police Station, LajpatNagar. Police took action u/Section 107, Criminal Procedure Code Defendant No. I had filed a suit for injunction on 26.5.1982 in the lower Court. Defendants I to 4 are tress-passers. They have no right to be in possession of the property. The property is capable of fetching Rs. 500.00 per month. The plaintiff issued notice to defendants I to 4 calling upon them to vacate the plot and to pay mesne profits @ Rs. 500.00 per month. A reply was sent by defendants 1 to 4 containing false allegations. The plaintiff claims Rs. 6,500.00 being the mesne profits till30.4.1983. The plaint was presented on 25.5.1983. The plaintiff accordingly prays for decree of possession and insane profits.
(2) On 28.10.1983 defendants 1 to 4 filed the written statement. According to the defendants I to 4, the suit is time barred. The defendants I to 4 have been in possession of the property for more than 26 years. The suit has been filed to harass the first defendant. The suit is bad for misjoinder of parties. This Court has no jurisdiction. The suit is not maintainable because the plaintiff has not paid Court fee for both the reliefs of possession and mesne profits. The sale deed is a forged and fabricated document. First defendant had already filed a Suit No. 361/82 in the file of Mr. S.M. Chopra, Sub-Judge, Delhi, titled as Kailash Chand, Krishna Kumari v. Girdhari Lal. The attesting witnesses are fictitious persons and even if there are signatures by attesting witnesses they are forged and fabricated. The possession is always with these defendants. The payment of Rs. 4,830.00 to the Dda is false and the receipt, if any, is forged and fabricated. The other allegations in the written statement need not be recounted.
(3) The plaintiff filed the replication traversing the allegations in the written statement filed by defendants I to 4 and it is wholly unnecessary to refer to them.
(4) The plaintiff has marked documents Exs. P.I to P.14. Ex.P.1 is the sale deed dated 9.2.1959. Ex. P.2 is a receipt issued by the Dda dated 30.12.1978. Ex. P.3 is the agreement between the plaintiff and defendants 5 to 7. Ex. P. 4 is the copy of the order passed by the Sdm in the proceedings u/Section 145, Criminal Procedure Code on 15.4.1983. Ex.P.5 is the order dated 4.9.1989 by Metropolitan Magistrate, New Delhi on a complaint filed by one Shashi Kant. Ex. P.6 is the copy of the statement given by Mr. Kailash Chand in Suit No. 316/82 on the file of Shri Nand Kishore, Sub-Judge, Delhi. Ex.P.7 is the copy of the statement of Mr.Kailash Chandmade on 30.1.1986inSuitNo.316/ 82. Ex. P.8 is the copy of the statement dated 16.2.1987 of Mr. Kailash Chand in suit No. 316/82. Ex.P.9is the copy of the statement of Public Witness .2.ShashiKant in SuitNo.316/ 82 made on 15.12.1986. Ex. P. 10 is the copy of the notice dated 17.5.1983. Ex.D2W2/ I is affidavit by Mr. Jassu Khan. Ex.D2W2/2 is the house tax bill dated February, 1984. The defendants have not filed any documents.
(5) Mr. Santosh Kumar Anand, the attesting witness to the sale deed Ex.P.I, was examined as Public Witness .I. The plaintiff Mr. Girdhari Lal was examined as Public Witness .2. Mrs. Krishna Kumari, wife of the first defendant Kailash Chand, gave statement as D2W1. Mr. Shashi Kant son of the first defendant was examined as D2W2. The following issues were framed on 18.2.1991.
1. Whether defendants I to 4 executed valid sale deed in favour of the plaintiff?
2.Whether the suit is barred by time?
3.Whether the plaintiff is entitled to the possession of the plot in question?
4.Whether the suit is bad for misjoinder of parties?
5.Whether the plaintiff is entitled to mesne profits, if so, at what rate and for what period?
6.Relief.
(6) The question to be decided is whether the sale deed Ex. P.I dated 19.2.1959 is a valid document or not. Let me first consider the oral evidence on the point. Public Witness .I Mr. Santosh Kumar Anand would state in his chief examination that he signed as a witness to the sale deed on 19.2.1959 in tile presence of Mr. Kailash Chand vendor. It was suggested to him in the cross examination that the first defendant Mr. Kailash Chand was not mentally fit at the time of the sale deed. It was suggested to him that the signatures of the first defendant found in Ex. P.1 are forged. The witness would state that he knew the first defendant, who was working in Dtc because the sister's husband of the witness was also working in the DTC. Nothing has been elicited in the cross examination of Public Witness .I to show that the witness was not telling us the truth.
(7) The plaintiff as Public Witness . 2 in the chief examination would state that he purchased the plot under the document Ex. P.I. There were two witnesses Mr. Anand and Mr. Hukam Singh. He took the original documents. He took vacant possession of the land on the date of the sale deed and he would speak to the fact that he paid a sum of Rs. 500.00 to the first defendant. It was suggested to him that neither Mr. S.K. Anand or Mr. Hukam Singh were attesting witnesses to the sale deed. The sale deed was registered and there is no disputed about it.
(8) The second defendant Mrs. Krishna Kumari would state that the property was purchased by the first defendant, her husband, in 1955. Her husband Mr. Kailash Chand first defendant, was sick in 1959. She would deny the fact that her husband was present at the time of registration before the Sub-Registrar. There is absolutely no material produced by the second defendant to show that the first defendant was not present at the time of the registration. The second witness Mr. Shashi Kant D2W2, the son of the first defendant, would assert that his father is the owner of the property and he was only 4-5 years old in 1959. Therefore, about the execution of the sale deed he could not say anything and, therefore, his evidence is not helpful. Under these circumstances, it is clear that the first defendant had executed the document on 19.2.1959 in favour of the plaintiff and the sale deed was duly registered.
(9) The defendants have come forward with the case that the first defendant is of unsound mind. The second defendant in her evidence would state that the first defendant was of unsound mind and his condition continues to be the same even today. The first defendant had signed the written statement. He had appeared before the Court in Suit No. 316/82, when the matter was pending before Sub-Judge. Ex. P. 7 is the statement given by Mr. Kailash Chand before the lower Court in Suit No. 316/82. According to him, he had rented the plot to one Mr. Puran Singh. Mr. Puran Singh vacated the plot in 1981. Later on, he put up two rooms, latrine, bath room in the plot and his family is residing in the property. He had also paid house tax. On 15.12.1986 he gave statement before the Court. It is in Hindi. There also he would state that he had purchased the plot and he did not execute the sale deed in favour of the present plaintiff Mr. Girdhari Lal. He had filed the suit in 1982 against the plaintiff is not a matter of any doubt. Ex, P.8 is again statement of Mr. Kailash Chand made on 16.2.1987. There also he would state that he did not sell the suit plot to Mr. Girdhari Lal. At one stage, he would admit "it is correct that I have filed a false suit." The learned Judge had noticed that when the question was put to him again that how could he state that his case was not false when he had already admitted it was a false suit, the witness was in a perplexed condition. 10. Ex. P.9 is the statement by Mr. Shashi Kant, son of the first defendant, as Public Witness . 2 in that case. That is not at all helpful.
(10) The first defendant Mr. Kailash Chand had examined in that case Mr. Kamal Singh, Asstt., Original Branch of this Court, as Public Witness .3 summoning the record of this suit (S.No. 852/83). Therefore, the case of the defendants I to 4 that the first defendant is of unsound mind cannot at all be accepted. No attempt has been made by taking steps to establish that the first defendant is not of sound mind. The first defendant was not produced before Court. In the absence of any evidence the case of defendants I to 4 that the first defendant was of unsound mind even on the date of the sale deed dated 9.2.1959 cannot at all be accepted. It is well settled that a party to an action should produce all the materials in his possession and he cannot withhold material evidence from the Court. It has not been explained as to why first defendant was not even produced before the Court to show that he was not in a position to give evidence. Defendants 2 to 4 had been trying to be very smart in their action that by not producing the first defendant they could steal a march over the plaintiff. If the first defendant had been produced, and if medical evidence had been produced to show his condition, one can appreciate. No even a medical certificate has been produced by the second defendant. In her cross examination the second defendant as D2WI would admit that her husband appeared in the Civil Court before Shri N.K. Goel and gave evidence. She would also admit that the first defendant appeared as witness before Sh. R. Kiran Nath, Mm, Patiala House Court. To a question whether her husband was working in Dtc, she would give a very interesting answer. Q. Is it correct that your husband was employed in D.T.C. and if so, for what period? Ans. His friends used to do his work and my husband was on leave without pay and then he took voluntary retirement. A question was put to her about the case set up by her and her husband in suit No. 316/82, the answer is that such a question was not put to her. Q. Is it correct that neither you nor your husband either stated at the time of filing a Suit No. 316/82 that your husband was mentally unsound? Ans. This question was never asked to us. She would admit that at the time of marriage in 1952 her husband was working in DTC. In her anxiety to persist in her false case, she would state that her husband was mentally unsound right from the beginning. Q. Do you know that your husband purchased a flat in question, from the previous owner, at that time of purchase, he was in his senses or not? Ans. He was unsound from the very beginning and would often say things which were not coherent. But sometimes he behaves like a normal person. This witness would admit that she came to know that the sale of the plot by registered document Ex. P.I only in the year 1982. According to this witness, the document sale deed was executed in February, 1959 and presented in 1959 and registered in January, 1960. According to this witness, the first defendant, her husband became mad in 1958.
(11) The plaintiff has produced receipt from the Dda to show that he had paid the development charges in 1978. The first defendant or the second defendant had not produced any such receipt to show payment of development charges. According to D2WI and D2W2 the construction was in the year 1958 in the plot but according to the first defendant in the statement made by him in Suit No. 316/82 he got possession from the tenant only in 1981 and the construction was put up in 1982. No plans have been produced. No document has been produced to show the construction on the plot. The first document Ex.D2W2/l, stated to be payment of some house tax with reference to 329, Sant Nagar, New Delhi by Mr. Kailash Chand is of the year 1984, during the pendency of the suit. Therefore, it cannot at all be taken into consideration. An affidavit from Jassu Khan, who was 66 years old on 13.7.1982, is marked as Ex.D2W2/l stating that he did not sign the sale deed Ex. P.I. Mr. Jassu Khan has not been examined. It is stated that he is no more. The affidavit is not at all relevant and it cannot be taken into consideration at all. He could have been examined de bene esse with the permission of the Court.
(12) In the light of the oral and documentary evidence, I am satisfied that the plaintiff has established his title to the property and he is entitled to possession of the property.
(13) The plaintiff has claimed mesne profits @ Rs. 500.00 per month. The area of the plot is 200 sq. yds. There is no contra evidence. The plaintiff has prayed for the past mesne profits to the extent of Rs. 6,500.00 In the absence of any contra evidence by the defendants I to 4, the mesne profits could be fixed at Rs. 500.00 per month.
(14) On issue No. 1, I find that the first defendant executed the sale deed in favour of the plaintiff Ex. P.I and it is valid.
(15) The question of limitation does not arise for consideration as the suit is based on title. The defendants I to 4 have not shown how they have prescribed title by adverse possession. The burden is on them in the light of Article 65 of the Limitation Act, 1963. Therefore, I find that the suit is not barred by time.
(16) On issue No. 3, I find that plaintiff is entitled to possession.
(17) On issue No. 41 find that the suit is not bad for misjoinder of parties. I fail to see how the suit could be said to be bad for misjoinder of parties. No argument was advanced on issue No. 4.
(18) On issue No. 5 I find that the plaintiff is entitled to recovery of Rs. 6,500.00 and is entitled to Rs. 500.00 per month from the date of plaint till the date of recovery of possession.
(19) The defendants I to 4 would appear to have put up some construction without proper sanction and, therefore, they arc not entitled to any equities and the only right they have is to .remove the construction put up by them unauthorisedly. The defendants 1 to 4 shall remove the construction within 8 weeks from today. If defendants 1 to 4 do not remove the construction the plaintiff shall be entitled to get it removed through the process of Court at his costs.
(20) Accordingly, the suit is decreed and there shall be a decree : (a) directing the defendants 1 to4 to hand over possession of the property to the plaintiff after removal of the super structure within weight weeks from today; (b) directing the plaintiff, to have the super structure removed through the process of Court if it is not removed by defendants I to 4 within eight weeks from today. (e) directing defendants I to 4 to pay the plaintiff a sum of Rs. 6,500.00 as mesne profits from 1.4.1982 to 30.4.1983; (d) directing defendants I to 4 to pay to the plaintiff mane profits @' Rs. 500.00 per ninth from the date of plaint i.e. 25.5.1983 till the date of delivery of possession; (e) directing defendants I to 4 to pay to the plaintiff the costs of the suit. (f) directing the dismissal of the suit against defendants 5 to 7, without costs.