Sh. Mahinder Kumar Jain vs Sh. Mehar Singh
2008 Latest Caselaw 538 Del

JUDGMENT

Pradeep Nandrajog, J.

1. It is unfortunate that for 14 years the instant appeal has remained in the record room of this Court as an After Notice Miscellaneous Matter. No question of law has been framed till date.

2. Whether or not a question of law requires to be framed?

3. The answer would depend whether a case is made out to frame one.

4. In my opinion, no substantial question of law or for that matter even a question of law requires to be framed, as none arises.

5. Appellant was the plaintiff. His suit for possession and damages was dismissed by the learned Trial Judge vide judgment and decree dated 23.9.1992. First appeal being RCA No. 14/1992 was dismissed vide judgment and decree dated 19.2.1994.

6. Briefly stated, appellant's case was that vide sale deed dated 20.6.1971, Ex. P-1, he had purchased 200 sq.yds. of land comprised in Khasra No. 115 of Village Shakurpur Khas, Illaqa Shahdara, Delhi from its owners S/Shri Revti Prasad, Balwant, Chander Bhan, Onkar and Ram Sharan. That the registered sale deed described the property as under:

East : Gali.

West : Field of Inderjeet.

South: Land of vendors.

North: Land of vendors.

7. It was further alleged that the area came under illegal and unauthorized colonization and when other houses were constructed municipal numbers were assigned and number assigned to plaintiff's plot was 573-B.

8. The defendant did not dispute the tile document of the plaintiff but stated that the suit land was not the one which belonged to the plaintiff. Defendant stated that his wife has purchased the same. The defendant stated that at site the property was bounded, not in the manner as stated in the plaint, but as under:

West : House No. 573-A

East : House No. S-582

North : House of Smt.Shanti Devi

South : Lane

9. The defendant did not lead any evidence pertaining to the title document of his wife but proved site plan Ex.DW-1/1 showing the boundaries of the land as it existed at site.

10. Both Courts below have non suited the appellant holding that the land at site does not conform to the description in the sale deed of the plaintiff but conforms to Ex.DW-1/1, meaning thereby it has been held that the suit land is not the one to which sale deed Ex.PW-1 relates to.

11. Reason given by the Courts below is that when the defendant proved Ex.DW-1/1, no suggest was given to him that the land at site does not conform to Ex.DW-1/1. Further, it has been held (para 10 of the judgment of the Appellate Court) that in cross-examination the plaintiff himself could not give the description of his property.

12. Another reason given by the learned Appellate Judge is that in the grounds of appeal it was urged:

That the property in question is located in unauthorized regularized colony upon the agricultural land to which development has been carried out in phases came up in haphazard manner.

(I have in verbatim copied the ground urged before the First Appellate Court as recorded in para 9 of the decision with its imperfect grammatical syntax.)

13. Learned Appellate Judge has noted that during arguments it was urged by the appellant that in these kinds of colonies sale deeds are normally executed without specific numbers and that the property conveyed are usually described by boundaries as was also done in the present case by the vendor. The Appellate Court has noted that no such plea appears to have been raised before the learned Trial Judge. The learned Appellate Judge has also noted that there is no evidence on record as to when was the colony regularized and when were municipal numbers allotted.

14. In the instant appeal, picking on the observations of the learned Appellate Judge in para 11 where it has been recorded that the plaintiff has failed to discharge the onus, it is sought to be urged that where evidence is led, onus loses significance and the rule of best evidence applies. Taking the argument a step forward it is urged that the defendant did not prove the sale deed of his wife and therefore the only inevitable conclusion to be drawn was that the land at site conforms and relates to the sale deed relied upon and proved by the appellant as Ex.P-1.

15. I am afraid, the plaintiff has to stand on his own feet.

16. That apart, even applying the rule of preponderance of probabilities it has to be noted that at site house in question is surrounded by 3 houses on the west, east and north. A lane exists towards the south of the land. But, the sale deed, Ex.P-1, in favor of the plaintiff gives a totally different picture. The lane is shown on the eastern side of the plot forming subject matter of the sale deed. The western, southern and northern sides are shown as bounded by the field of one Inderjeet Singh and the land of the vendors.

17. To compound the appellant's problem, the appellant did not produce the owners of the adjoining houses as his witnesses nor produced or summoned his vendor to prove what was sold by the vendor to him.

18. The case has hinged on documentary evidence and the statements of the witnesses. I find no infirmity in the appreciation of evidence by the learned Appellate Judge as well as by the First Appellate Judge.

19. The hiatus between the physical boundaries of the site which physically exist and as disclosed in the sale deed Ex.P-1 is indeed fatal to the case of the appellant.

20. Before concluding I must record that nearly 50% of the Regular Second Appeals in this Court relate to possessory rights in unauthorized colonies. The voice of the Courts requiring unauthorized colonies to be regularized as per a regularization plan assumes significance because in Court litigation, which indeed is a lawyer's delight to litigate on such properties but is a judge's despair for the reason no credible evidence comes on record to ascertain the position at site vis-a-vis the tile documents of the parties. The instant case could be an illustration of this malice. It is possible that when the plaintiff purchased the land vide Ex.P-1, being an undeveloped area the owners of the land described it as per the sale deed. But the same lost all meaning when actual development took place. What happened when. No body knows. But, in a Court of Law credibility and admissible evidence is what can be looked into by a Judge.

21. Further, to test purity of an evidence suspect impure, it needs to be reacted with evidence credibility and purity whereof is not in doubt.

22. In relation to land in an unauthorized colony this exercise may become fairly simple if there is an authenticated layout plan of the colony. But where there is none, it is a virtually impossible task to co-relate the boundaries of lands forming subject matter of a sale deed and in particular when these sale relate to the initial period of unauthorized colonization because what ultimately comes up may not conform to what was conceived of.

23. It is not a judicial over-reach when Courts direct the executive to conduct the affairs relating to town and country planning as required by law. It is not only substantive law which is in issue but even rules of evidence on which substantive rights are determined which get affected when there is no logic, except appeasement, in an executive policy decision.

24. In unauthorized colonization more than often than not the Courts lands up protecting the possession of the person who is ultimately proved to be in possession because relatable to title, trustworthy and credible evidence linking the site to the title document seldom surfaces.

25. The appeal is dismissed without framing any question of law, as none arises.

26. No costs.