Delhi High Court
Sh. Fakhr-Ul-Islam vs Shri Abdul Naim And Ors. on 16 August, 2007
Author: P Nandrajog
Bench: P Nandrajog
JUDGMENT
Pradeep Nandrajog, J.
1. This revision petition challenges the orders dated 27.3.99 and 7.8.99 passed by the learned Civil Judge, Delhi.
2. Petitioner was defendant No. 2, respondent No. 1 was plaintiff, respondent No. 2 was defendant No. 1 in the original suit. Respondents Nos. 3 to 9 are the legal heirs of defendant No. 3 in the original suit. I shall be referring to the parties as plaintiff and defendant respectively.
3. Vide impugned order dated 27.3.99, suit filed by the plaintiff under Section 6, Specific Relief Act, 1877 was decreed and plaintiff was held entitled to the possession of suit property and the printing press lying therein. Vide order dated 7.8.99, noting that in the plaint relief prayed for was limited to the extent of possession of suit property, earlier order dated 27.3.99 was modified and plaintiff was held entitled to the possession of only suit property.
4. Relevant facts necessary to be noted are that plaintiff, Abdul Naim, filed a suit for possession under Section 6 of the Specific Relief Act, 1877, alleging forcible dispossession from the suit property by defendants Nos. 1 to 3. The subject-matter of the suit was property bearing No. 2741, Mohalla Nariyan (behind G.B. Road), Delhi.
5. It was inter alia pleaded in the plaint that:
a) On 1.11.1968, plaintiff entered into a partnership with Fakhr-ul-Islam, defendant No. 2 for carrying on the business of printing press. The partnership firm conducted business under the name and style of 'M/s Jayco Printing Press'.
b) Partnership firm was carrying on its business at premises No. 2741, Mohalla Nariyan, Delhi i.e. suit property. Partnership firm was a tenant in the suit property and was paying rent @ Rs. 30/- per month to the landlord, Hamid-ul-Islam, defendant No. 1.
c) On 2.2.70, partnership between plaintiff and defendant No. 2 dissolved A settlement was arrived at. Ex.PW7/1 to Ex.PW7/3 records the said settlement and bears the signatures of both plaintiff and defendant No. 2. Plaintiff took over all the rights and liabilities of the partnership firm which included the tenancy rights.
d) After the said dissolution, plaintiff continued running the printing press under the name and style of 'M/s Jayco Printers' as proprietor thereof;
e) Defendant No. 2 in connivance with defendant No. 1 and 3 on 25.5.1973 wrongfully dispossessed the plaintiff from the suit property.
6. Per contra, defendants No. 1 to 3 denied the averments made in the plaint. In essence, case set up by the defendants No. 1 to 3 is as follows:
a) Defendant No. 2 was the tenant in the suit property and was paying rent @ Rs. 8/- per month to the defendant No. 1.
b) Defendant No. 2 was running the printing press from the suit property under the name and style of 'M/s Jayco Printers' It was a sole proprietorship concern with defendant No. 2 as its proprietor.
c) Plaintiff had no concern whatsoever with the suit property, printing press or 'M/s Jayco Printers'.
7. A perusal of the decision of the trial judge as also record of the trial court show that evidence was adduced by the parties in support of their respective case.
8. Plaintiff examined 16 witnesses. Learned Trial Judge has appreciated evidence led by the plaintiff as follows:
S. Witness Document proved by the Conclusion arrived at by
No. witness the learned Trial Judge
1. PW-2: S.D. Chauhan, Ex.PW2/1 to Ex.PW2/12 (Pg 195-217): These documents show that
Clerk, Standard Type Bills showing that certain articles 'M/s Jayco Printers' was
Foundry, Delhi. were sold by Standard Type Foundry carrying on its business
to 'M/s Jayco Printers' between the at the suit property.
dates 17.12.70 to 23.12.73.
2. PW-3: Anwar-ul-Haq, i) Ex.PW-3/1 (Pg 387): Bill dated These bills confirm the
Accountant, Delhi 24.1.70 issued by 'M/s Jayco fact that prior to 2.2.70,
Iron Truck Mfg. Co., Printing Press'. the firm was functioning
Delhi. ii) Ex.PW-3/2 to Ex.PW3/3 (Pg 389 in the name of 'M/s Jayco
and 391): Bills dated 25.11.70 and Printing Press' at the
25.1.72 issued by 'M/s Jayco suit property and therea-
Printers'. fter, it was functioning
in the name of 'M/s Jayco
Printres' at the same
address.
3. PW-8: Papinder Singh, Ex.PW8/1 to Ex. PW8/3 (Pg 255 to These bills further supports
partner, Guru Nanak 259): Bills showing sale of the case of the plaintiff.
Paper Mart, Delhi. certain articles by Guru Nanak Paper
Mart to 'M/s Jayco Printers between
the dates 24.4.70 to 3.7.70.
4. PW-11: R.K. Sehgal, Ex.PW11/1 (Pg 355): A certificate Since the certificate is
stenographer, M/s dated 25.8.1973 issued by M/s Jagan issued in favor of the
Jagan Nath Prem Nath, Nath Prem Nath certifying that it plaintiff, it lends
Delhi. used to have business dealings with credence to his case.
'M/s Jayco Printers' which was
functioning at the suit property.
5. PW-12: Arjun Dev, Ex.PW-12/1 (Pg 357): A certificate Since the certificate is
Manager, New Bharat dated 13.8.1973 issued by New Bharat issued in favor of the
Mfg. Co., Delhi. Mfg Co certifying that it used to plaintiff, it lends credence
have business dealings with Abdul to his case.
Nair (plaintiff) M/s Jayco Printers,
2741, Niaryan Street, Delhi.
(suit property)
6. PW-9: Nand Lal, i) Ex.PW9/1 (Pg 403): Copy of FIR These documents establish
Constable, P.S. dated 2.6.93 registered at the that plaintiff was in
Kamla Market, Delhi. instance of plaintiff against the possession of the suit
defendants. property on 25.5.73 and on
ii) Ex.PW9/2 to Ex.PW9/3 (Pg 405 this date he was forcibly
and 407): Copy of D.D. Dated 26.5.73 dispossessed by defendants
and 28.5.73. No. 1 to 3.
9. Learned Judge has further noted that oral evidence adduced by the plaintiff also corroborates the version of the plaintiff.
10. Defendants examined 8 witnesses who deposed that there was no oral tenancy between the plaintiff and the defendant No. 1. That there was no partnership between plaintiff and defendant No. 2. That defendant No. 2 was the sole proprietor of 'M/s Jayco Printers'.
11. No documentary evidence was produced by the defendants.
12. Insofar as evidence led by the defendants is concerned, suffice would it be to note following two discrepancies noted by the learned Trial Judge:
i) It was the case of the defendants that plaintiff had no concern whatsoever with 'M/s Printing Press'. However, Mohd Sharif in his testimony as DW-5 stated that he had seen the plaintiff working in the press. (His testimony is at page 71 of the trial court record).
ii) Plaintiff had averred that on 2.2.70 i.e. at the time of dissolution of partnership between him and defendant No. 2, a settlement was arrived which was recorded in Ex.PW7/1 to Ex.PW7/3 (Pg 159-163). It was further averred that Ex.PW7/1 to Ex.PW7/3 bears the signatures of both plaintiff and defendant No. 2. In his testimony as DW-8, defendant No. 2 has admitted that said exhibits were prepared by his munshi and that it bears his signatures. (Testimony of DW-8 is at page 76 of the trial court record).
13. Additionally, I note that defendants had not produced any documentary evidence such as bills, cash memo etc to show that defendant No. 2 was carrying the business of printing press under the name and style of 'M/s Jayco Printers". Non-production of any documentary evidence requires an adverse inference to be drawn against the defendants.
14. Noting the rival contentions as also evidence adduced by both the parties, particularly, documentary evidence produced by the plaintiff and the fact that Section 6, Specific Relief Act,1877 provides a remedy of restoring possession on proof that the plaintiff had possession and he has been wrongfully dispossessed, learned Trial Judge decreed the suit of the plaintiff. It has been held that plaintiff has successfully established that he was the tenant in the suit property and that he was forcibly dispossessed from the suit property by the defendants no 1 to 3.
15. Aggrieved by the decision of the learned Trial Court, defendant No. 2 has filed the instant revision petition.
16. Learned Counsel for the petitioner/defendant No. 2 contended that the learned Trial Court has not correctly appreciated evidence led by the defendants. That the learned Trial Court has erred in placing reliance upon documents such as cash memo, bills etc produced by the plaintiff for the reason said documents were false, fabricated and prepared at the instance of the plaintiff.
17. Scope of challenge in a revision petition is limited. Petitioner cannot call upon this Court to re-appreciate the evidence. (See the decisions of the Supreme Court in Ram Dass v. Davinder and Kempaiah v. Chikkaboramma .)
18. Having gone through lengthy discussion of evidence, documentary and oral, as contained in the judgment of the trial court, I am satisfied that no fault can be found with the manner in which the evidence has been appreciated by the learned Trial Court.
19. C.R.P. No. 41/2000 is accordingly dismissed.
20. No costs.
