O.P. Kurechia vs Manju And Ors.
1998 Latest Caselaw 745 Del

JUDGMENT

Manmohan Sarin, J.

1. Appellant is aggrieved by the judgement dated 14.8.1997, passed by the learned Additional District Judge, whereby he decreed the respondents' suit for possession and injunction as well as for recovery of damages and directed an enquiry into mesne profits.

2. Respondent Ms. Manju and her brothers had filed the suit claiming that she and her brothers were the owners of Plot bearing No. 149, Block H-II, Sultanpuri, JJ Colony, Delhi, since it was allotted to their deceased father, Shri Krishan Lal son of Shri Atma Ram. Shri Krishan Lal is stated to have died in a road accident on 22.1.1986. Respondent Manju, while searching for certain papers, found the original allotment letter in the name of her father and made inquiries about the plot. On visiting the site, she found that appellant was in possession of the plot and had raised structures thereon. She apprised the appellant that the plot belonged to her late father but the latter refused to entertain her. A report was lodged with the police. Assistance was also sought from the Delhi Legal Aid and Advice Board, but to no avail. Hence, the respondents were constrained to file the suit.

3. The case of the respondents is that late Shri Krishan Lal had divorced their mother Veena and the latter had re-married. The respondents were minors at the lime of allotment of the plot vide letter No. D/AZO/NZA/Allolment/83/847 dated 20.12.1983. The allotment of the plot was in lieu of the demolition of a room of their father at Mehrampur.

4. Issues were framed in the suit and the parties went to trial. The suit has been decreed by the learned Additional District Judge. The learned Additional District Judge held that the respondents had duly proved the original letter of allotment in favour of their deceased father as well as the death certificate proving the factum of his death on 22.1.1986. He disbelieved the version of the appellant that he was a bonafide purchaser for consideration. The appellant had produced on record the Power of Attorney, an Agreement to Sell, an affidavit and a receipt, purportedly executed by one Shri Krishan Lal. The stamp papers for the General Power of Attorney as well as the Agreement to Sell, were purchased on 3.4.1987. While the Agreement bore the date 3.3.1987, the Power of Attorney did not carry any date but bears the date of attestation by the Notary as 3.3.1987. The learned Additional District Judge held that none of the witnesses of the defendant, produced to prove the aforesaid documents, stated the exact date of execution of documents. The executant had not been produced. The Power of Attorney was also not authenticated by Notary Public as required in terms of Section 85 of the Evidence Act. The learned Additional District Judge held that the genuineness of the said documents was in grave doubt and the same had not been proved as required by law.

5. Another factor which weighed with the learned Additional District Judge was that the father of the respondents, late Shri Krishan Lal, had expired on 22.1.1986 and if this was so, the aforesaid documents could not have been executed in 1987 by a dead person. Further, it was noticed that neither the defendant nor any of his witnesses could give the age, colour, height or body features or any other physical description of Shri Krishan Lal, who was stated to have executed the documents in 1987 in favour of the appellant.

6. Learned counsel for the appellant urged before us that the learned Additional District Judge erred in holding that respondent had proved that her father was the allottee. He submitted that respondents had failed to prove their ownership and, as such, in the absence of their ownership being proved, a suit on the basis of title could not be maintained. Learned counsel submitted that the Court had failed to consider that deceased Krishan Lal, father of the respondents, had never resided at Mehrampur and, as such, there was no question of his being allotted the plot in question. Besides, there were contradictions in the deposition of the respondent No. 1, in as much as, she had deposed that her father could sign in Urdu. If this was so, there was no question of thumb impression being affixed by Krishan Kumar on the original allotment letter as well as the other documents. It was urged that respondents had failed to produce any proof of late Krishan Lal residing at Mehrampur. Learned counsel also sought to explain the discrepancy in the date of execution of the Agreement to Sell being 3.3.1987, while the date of purchase of stamp paper being 3.4.1987, as having been caused due to a typographical error.

7. We have carefully examined and perused the trial court record and the documents in question. We find that the doubts as regards the genuineness of the documents produced by the defendant, viz. the Agreement to Sell, the Power of Attorney, an affidavit and the receipt, are well-founded. The Power of Attorney, Ex.D/1, does not carry any date except the date of attestation. The Agreement to Sell, as noticed earlier, is dated 3.3.1987. The date is not expressed in numerals but the month is typed in alphabets. The affidavit also does not carry the date either in the body or the verification. It is simply attested on the 3rd March, 1987. Similarly, Ex.D/4, the receipt, does not carry any date. The inference drawn by the learned Additional District Judge of these documents being of doubtful character and not proved in accordance with law was fully justified. Besides, neither the defendant nor any of the witnesses produced by the defendant were able to identify the photograph of the deceased Krishan Lal at Mark 'A' on PW.4/4 or give any description with regard to his physical characteristics, such as complexion, height, features, age, etc. The appellant's case is that he bonafide purchased the property from Krishan Lal in 1987. Krishan Lal, the holder of the original letter of allotment, expired on 22.1.1986. It was for the appellant to produce the alleged executant, who executed the documents. Secondly, the appellant even miserably failed to produce the broker Shri Darshan Lal through whom the transaction is claimed to have been completed. The appellant has failed to show any good reason as to why he did not obtain the original letter of allotment, which would be the document of title, at the time of purchase. The explanation now sought to be given that the same was claimed to have been lost by Krishan Lal does not inspite any confidence since in such cases the normal course is to either insist upon the Police Report or an indemnity bond. None of the documents mention that the Original Allotment letter was lost. Besides, conspicuously, the documents executed do not include a Will in favour of the appellant as is usually done. We are, therefore, satisfied that appellant has failed to prove that he was a bonafids purchaser for consideration.

8. Learned counsel for the appellant also relied on Exhibits PW..4/2. PW.4/3 and PW.4/4 being photocopies of the documents which were produced by the witness Suraj Bhan, U.D.C. North Zone 'A', Janakpuri. These documents purport to be an affidavit and an undertaking, allegedly executed by Krishan Lal on 2.4.1987 to the effect that the deponent Krishan Lal did not own or hold any other plot in Delhi and that he would construct the building in accordance with the design approved by the Delhi Development Authority. The credibility of these documents is also questionable and suspect on the same grounds as that of the Agreement to Sell, Power of Attorney etc. Moreover, we find that the thumb impression of the executant on these documents is much smaller and visibly different from the thumb impression of Krishan Lal on the original letter of allotment. As noticed earlier, PW.1/1 had duly proved the allotment letter, which carries the thumb impression of Krishan Lal. The said witness has deposed that the letter of allotment was issued to Krishan Lal, whose thumb impression was affixed on the letter of allotment.

9. Respondent No. 1 in her statement had duly explained that they were minors at the time of the death of their father while their mother had already remarried after divorce. The respondents have also explained that there was no question of their birth certificates being produced showing their residence in Mehrampur. The ease of the respondent No. 1 is that her brothers were born later and, as such, the birth certificates or school certificates will not carry the Machrampur address.

10. In view of the foregoing discussion, we find no error or infirmity in the impugned judgement. The appeal has no merit and is dismissed.