Delhi District Court
Mr. Om Arora @ Om Prakash Arora vs (1) Mrs. Raj Rani Julka on 17 January, 2019
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE(NE)
KARKARDOOMA COURTS, DELHI
CS No. 476544/15
IN THE MATTER OF:
Mr. Om Arora @ Om Prakash Arora
S/o Late Sh. Tek Chand
R/o 122, Jor Bagh, New Delhi03
................ Plaintiff.
VERSUS
(1) Mrs. Raj Rani Julka
R/o X330, RaghubarpuraI,
Shahdara, Delhi.
(2) Mr. Kapil Julka ( Since deceased)
Through his Lrs
(a) Mrs. Shalini Julka Wife
(b) Ms. Samridhi Julka Minor Daughter
(c) Master Manas Julka Minor Son
All resident of 4/3, Geeta Colony, Delhi110031.
(3) Mr. Manmohan Julka
(4) Mr. Ashwani Julka
All R/o X330, RaghubarpuraI,
Shahdara, Delhi.
.............. Defendants.
Date of Institution : 07.01.2010
Date of Arguments : 17.01.2019
Date of Judgment : 17.01.2019
Decision : Suit is dismissed with cost.
CS No. 476544/15 1 of 11
Om Arora V/s Raj Rani Julka & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
Suit for possession & mesne profits
JUDGMENT
1.Vide this judgment, I shall dispose off the present suit for possession and mesne profits filed by the plaintiff against the defendants in respect of suit property i.e. property bearing Municipal No. X330 ( New) and old No. 179180 built on Plot Nos. 56 and 57, bearing Khasra No. 592/74 situated at Raghburpura, Shahdara, Delhi ( hereinafter called the suit property). Plaintiff is also prayed for decree of payment of pendentelite and future mesne profits / damages from the date of filing of the present suit till the date of handing back the peaceful vacant actual physical possession of the suit property.
2. Brief facts as stated in the plaint is that plaintiff is the owner of the suit property having purchased for consideration from previous owner namely Vinod Bala and Sh. Shyam Krishan Dixit vide sale deed dt. 26.12.2005 registered with Sub Registrar VIII, Delhi vide registration No. 16310, Book No. 1, Volume No. 2128, page No. 23 to 31. The plaintiff was assured by the sellers that Sh. Chotey Lal Shashtri being owner of the suit property executed registered will dt. 29.11.1975 registered with Sub RegistrarI , Delhi in favour of his wife Smt. Sona Devi vide document No. 2021, Addl. Book No. 3, Page 2 to 6 and declared that after death of Smt. Sona Devi, Sh. Jagdish Narayan, Sh. Vishma Mitra and Suderashan Kumar as joint owners of the suit property. Sh. Chotey Lal expired on 17.09.1976 and Smt. Sona Devi expired on 06.07.1985. Sh. Sudershan Kumar, one of the beneficiary of the will also expired on 07.04.1985 leaving behind his CS No. 476544/15 2 of 11 Om Arora V/s Raj Rani Julka & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
only LRs i.e. wife Smt. Rattan Kumari Sharma and accordingly, Sh. Jagdish Narayan, Vishma Mitra and Smt Rattan Kumari ( hereinafter called the joint owners) are the joint owners of the suit property. The joint owners appointed Smt. Vinod Bala and Shyam Krishan Dixit as their general attorneys in respect of the suit property vide registered GPA as document No. 5093 dt. 16.03.1992 registered with Sub Registrar Hathin and the plaintiff accordingly purchased the suit property vide sale deed dt. 26.12.2005. The plaintiff applied MCD for mutation in his name but it was objected as the defendants were in possession of the same. As the defendants are occupying the suit property on illegally, the plaintiff filed the suit against the defendants.
3. The defendants filed WS contending that defendant No. 1 is the owner and residing in the suit property for 26 years as her husband purchased the suit property from Sh. Ram Singh and Smt. Surjeet Kaur for consideration. As contended, the suit is liable to be dismissed U/o 7 Rule 11 CPC ; the suit is barred by section 11 of CPC ; plaintiff has no right, title or interest in the same. While denying rest of the material contentions of the plaintiff in the plaint, defendant prayed to dismiss the suit with cost.
4. Replication was filed by the plaintiff to the written statement of defendants whereby the plaintiff has reiterated the contentions mentioned in the plaint while denying the averments of the defendants in the written statement.
5. In view of the pleading of the parties, following issues were framed vide order dt. 05.01.2018: (1) Whether the plaintiff is entitled for decree of possession CS No. 476544/15 3 of 11 Om Arora V/s Raj Rani Julka & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
as prayed in the suit? OPP (2) Whether the plaintiff is entitled for decree of mesne profits as prayed in the suit ? ( OPP) (3) Whether the defendant No. 1 is the owner of the suit property ? OPD.
(4) Relief.
and the case was fixed for plaintiff's evidence.
6. The plaintiff filed his affidavit by way of evidence Ex. PW1/A and was examined himself as PW1 in support of the case. The witness deposed as per averments made in the plaint and also deposed regarding the documents in support of his claim i.e. sale deed dt. 26.12.2005 Ex. PW 1/ 1, original payment receipt dt. 26.12.2005 Ex. PW 1/ 2, original possession leter dt. 26.12.2005 Ex PW 1/ 3, original agreement to sell dt. 04.03.1992 E.x PW 1/ 4, original GPA dt. 04.03.1992 registered on 16.03.1992 Ex. PW 1/ 5, original letter dt. 28.12.2005 E.x PW 1/ 6, original letter dt. 09.03.2006 Ex. PW 1/ 7, original letter dt. 29.01.2006 E.x PW 1/ 8, original notice dt. 29.10.2007 E.x PW 1/9, two original postal receipts Ex. PW 1/10 and Ex. PW 1/ 11 and one original duly received AD card Ex PW 1/ 12, original letter dt. 14.12.2007 Ex. PW 1/13, certified copy of the order dt. 02.04.2009 E.x PW 1/ 14, copy of the certificate of sale dt. 13.07.1962 mark A, copy of the letter dt. 18.02.1963 mark B and photocopy of will of Lt Sh. Chotey Lal Shashtri mark C. As no other witness was examined by the plaintiff, the PE was closed and case was fixed for DE.
7. The defendant No. 3 filed his affidavit by way of evidence Ex. DW 1/A and was examined as DW1 who deposed regarding the averments in CS No. 476544/15 4 of 11 Om Arora V/s Raj Rani Julka & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
the WS. Witness has relied upon the documents i.e. Original GPA dated 16.11.1984 Ex.DW1/1; registered Receipt Ex.DW1/2 (Also Ex.DW2/1); agreement to sell dated 23.10.1984 Ex.DW1/3; GPA dated 13.07.1987 Ex.DW1/4; agreement deed dated 13.07.1987 Ex.DW1/5; Affidavit dated 13.07.1987 Ex.DW1/6; Will deed dated 13.07.1987 Ex. DW1/7; registered receipt dated 13.07.1987 Ex.DW1/8 (Also Ex.DW2/2); GPA dated 16.11.1984 Ex.DW1/9; Receipt dated 16.11.1984 Ex.DW1/10; agreement to sell dated 16.11.1984 Ex.DW1/11; GPA dated 15.12.1983 Ex.DW1/12; agreement dated 15.12.1983 Ex.dW1/13; Receipt dated 15.12.1983 Ex.DW1/14; House Tax Receipt year 1984 1985 Ex.DW1/15; House Tax Receipt year 2007 2008 Ex.DW1/16.
Defendants also summoned and examined the witness i.e. Rajender Singh, Record Attendant, Department of Archives as DW2 appeared with the summoned record i.e. receipt dated 16.11.1984 vide registration no. 20724 in additional Book No. 4, Volume No. 1214 on page no.161 registered on 17.11.1984 Ex. DW2/1 and receipt dated 13.07.1987 vide registration no.24109 in additional book no.4, volume no.1685 on page no. 86 dated 13.07.1987 executed by Smt. Tara Devi W/o Sh. Chaman Lal Khatri is Ex. DW2/2. The DE was accordingly closed.
8. I have heard the counsels for the parties and gone through the relevant material on records.
Having drawn my attention to the pleadings of the parties, testimony of witnesses and materials on records, it is submitted on behalf of plaintiff that plaintiff has proved his case and the defendants have no right, title or CS No. 476544/15 5 of 11 Om Arora V/s Raj Rani Julka & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
interest in the suit property and it has been proved that the plaintiff is the owner of the suit property. The counsel for plaintiff prayed to pass decree in favour of plaintiff and against the defendants.
Learned counsel for defendants on the other hand denied the contentions of the plaintiff mentioning that defendant No. 1 has right, title or interest in the suit property and is residing therein in her own right. The learned counsel for defendants lastly prayed that as the plaintiff failed to discharge the onus, suit of the plaintiff be dismissed with heavy cost.
9. My findings on the above said issues are as follows: (1) Whether the plaintiff is entitled for decree of possession as prayed in the suit? OPP (2) Whether the plaintiff is entitled for decree of mesne profits as prayed in the suit ? ( OPP) (3) Whether the defendant No. 1 is the owner of the suit property ? OPD.
10. The onus to prove the issue No. 1 and 2 was on the plaintiff whereas the onus to prove issue No. 3 remained on the defendants. As all these issues are inter related, these issues are examined and decided together.
11. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for partition, this suit is to be decided on the basis of preponderance of probabilities. In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, the CS No. 476544/15 6 of 11 Om Arora V/s Raj Rani Julka & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
Hon'ble High Court of Delhi was pleased to observe that "A civil case is decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
12. Section 101 of the Evidence Act, 1872 defines " burden of proof"
and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any CS No. 476544/15 7 of 11 Om Arora V/s Raj Rani Julka & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
13. There is no admission regarding the claim of the plaintiff by the defendants. The plaintiff claimed himself the owner of the suit property but the same is denied by the defendants. I have gone through the documents relied by plaintiff in support of his claim. The testimony of plaintiff appears to be totally shattered during his cross examination and despite opportunities, plaintiff has not produced the documents in support of contentions that the consideration amount was paid by him. There also appears to be contradiction in the case of the plaintiff as on the one hand, plaintiff has relied upon the documents regarding possession but during cross examination, he is admitted that he never remained in the possession of the property nor possession was handed over. It is also worth noting that the plaintiff did not file specification of the property nor the site plan and the site plan was not filed even despite opportunities to the plaintiff in this respect which is essential to the pleading in the suit for possession. Plaintiff also admitted that Ex. PW 1/4 i.e. agreement to sell dt. 04.03.1992 does not bear the signature of Smt Vinod Bala who is the attorney holder and on the basis of document executed by whom, the plaintiff is claiming the ownership of the suit property. The will dt. 17.11.1975 relied by plaintiff which is mark C do not prove as per law. It is deposed by the plaintiff that he cannot admit or deny whether Pandit Chotey Lal has right to transfer the property on its basis or not. The plaintiff was aware that suit property CS No. 476544/15 8 of 11 Om Arora V/s Raj Rani Julka & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
occupied by many tenants at the time of purchase but property was not inspected and admittedly Ex. PW 1/4 was not signed by Sh. S.K. Dixit in his presence. The MCD which is necessary party has not impleaded by the plaintiff as party in this case. Admittedly, there is no sale deed in favour of Sh. S.K. Dixit or Vinod Bala in respect of the suit property. It appears that testimony of PW1 was totally shattered during his cross examination and in nut shell, plaintiff failed to prove that he is the owner of the suit property having purchased from previous owner for consideration.
14. The defendant No. 1 also claimed that suit property was purchased by her husband but the original ownership of the said property is not proved. Moreover the testimony of DW1 is hearsay in nature regarding execution of the documents as he is not the signatory of the documents. Admittedly, the document Ex. DW 1/ 8 and DW 1/2 were not registered in his presence. It is admitted by DW1 that there is no proof regarding payment of consideration or any documents to show that Smt. Tara Devi, Sh. Ram Singh and Smt. Surjeet Kaur were owner. Defendant No. 1 therefore failed to prove the ownership of the suit property. Issue No. 3 is decided against the defendants.
15. The pleadings of the parties and evidence on record reveals that the plaintiff categorically failed to prove the contentions as mentioned in the plaint. The ratio of judgment reported as 1982 (1) RCR 637 is squarely applicable in the facts of this case. Further, as held in Subhra Mukharjee Vs. Bharat Coking Coal Ltd., AIR 2000 SC 1203, the party which makes the allegation must prove it. The plaintiff failed to prove by oral or documentary evidence the contentions made in the plaint. Undisputedly, the CS No. 476544/15 9 of 11 Om Arora V/s Raj Rani Julka & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
burden lies on the plaintiff to establish such facts. As the plaintiff failed to discharge the onus and prove the issue No. 1 & II, these issues are accordingly decided against the plaintiff.
16. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of "
proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title. The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this Court the plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiff had stood discharged.
CS No. 476544/15 10 of 11 Om Arora V/s Raj Rani Julka & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
17. In view of the aforesaid discussions and referred law as well as examining the case of the plaintiff on the basis of preponderance of probabilities, this Court is of the considered view that the plaintiff failed to prove his case and discharged the onus. The plaintiff is therefore not entitled for the decree of the possession and mesne profits / damages as prayed in the suit. Issue No. I & II are decided against the plaintiff. The suit of the plaintiff is therefore liable to be dismissed.
Relief: In view of the aforesaid discussions and findings, this court is of the considered opinion that plaintiff has failed to prove his case. The plaintiff is therefore not entitled for any relief as prayed in the suit. The suit of the plaintiff is dismissed with costs.
18. Decree sheet be drawn accordingly.
19. File be consigned to record room after necessary compliance.
Gorakh Digitally signed by
Gorakh Nath Pandey
Location: Court No.69,
Announced in open Court Nath North East District,
Karkardooma Court,
Delhi
on this 17th day of January, 2019
Pandey Date: 2019.01.17
16:49:26 +0530
G. N. Pandey
Addl. District Judge (NE)
Karkardooma Courts, Delhi
CS No. 476544/15 11 of 11
Om Arora V/s Raj Rani Julka & Ors.