Suresh Dutt vs Harbans Lal And Ors.
2008 Latest Caselaw 556 Del

JUDGMENT

Pradeep Nandrajog, J.

1. On 17.9.1985 following question of law was framed in the instant appeal:

Whether there was presumption of continuity of possession on the basis of that finding and whether on the evidence on record the said presumption has been rebutted.

2. Before proceeding to pen the judgment I must record that the expression 'that finding' in the question of law framed appears to refer to the observation by the learned Additional District Judge that the plaintiff/appellant was in possession of the land in dispute in the year 1975. Indeed, as framed the question of law suffers from an error of syntax.

3. The appellant was the plaintiff. He had sued for a decree for permanent injunction against the respondent alleging that he was the original resident of Village Jharoda Mazra Burari and was in possession of the suit land evidenced by a certificate of the Pradhan and an affidavit dated 1.5.1975. That the suit land ad-measuring 400 sq. yards was sought to be possessed by the defendants on the basis of some certificate obtained by them from the Custodian. That the defendants were attempting to forcibly occupy the land. Decree for injunction was prayed for to restrain the defendants from dispossessing the plaintiff from the suit land.

4. In their written statement the defendants/respondents predicated a defense of having acquired title to the suit property vide a letter of allotment Ex.DW-1/1 dated 20.1.1977 issued by the Custodian of Evacuee Properties and being put in possession of the land vide possession report Ex.DW- 1/2.

5. According to the respondents they had acquired title to the land through the custodian of the evacuee properties and that the Managing Officer- cum-Custodian had conveyed title in their favor.

6. Through the testimony of PW-2 the plaintiff proved Ex.PW-2/1, Ex.PW-2/2, Ex.PW-2/3 and Ex.PW-2/4, all documents relating to an application filed by the plaintiff while applying for a loan in the year 1975. PW-1, PW-3, PW-4 and PW-5 corroborated the testimony of PW-2 and stated that the plaintiff had indeed filed those documents. The witness deposed on the factum of possession of the plaintiff with reference to his acts of storing cow dung, placing agricultural implements and tethering cattle on the suit land. However, it came on evidence that the suit land was a vacant parcel of land.

7. Ex.DW-1/1 being a certificate dated 20.1.1977 issued by the Managing Director, Department of Rehabilitation reads as under:

No. LAO/KGO/Jarodha Mazra Burari/D/59 DEPARTMENT OF REHABILITATION (SETTLEMENT WING), JAISALMIR HOUSE, NEW DELHI.

Dated: 20-1-2007

S/Shri Shmt. Bhagwani Devi, Harbans Lal, Tulsi Nath, Shmt. Durga Devi, Ram Nath, Shri Laxman Dass, Shri Ramesh Chander and Shri Rajinder Kumar legal heirs of Shri Jhanda Ram deceased land allottee is allotted plot No. 1 measuring 400 Sq. yds owned by Shri Mumtaz Ud Din in Village Jharoda Mazra Buarai U/R 57.

(DHARAM SINGH) MANAGING OFFICER (RURAL) Shmt. Bhagwani Devi wd/o Shri Jhanda Ram, H.No. 144/H, Huds on Lines, Kingsway Camp, Delhi.

8. Ex.DW-1/2 is a possession report dated 3.2.1977. It is in urdu but records that at site, vacant physical possession of the land detailed in Ex.DW-1/1 has been handed over to the purchasers.

9. DW-1, the Patwari, who was produced as a witness by the defendants and was present when possession was handed over and Ex.DW-1/2 was drawn up deposed that the land was vested in the Custodian of the Evacuee Properties and was allotted to the respondents. He stated that the plot was vacant and none raised objections at the time of delivery of possession. He further deposed that the proclamation of delivery of possession was made in the village through one Nathu son of Chote Lal. The witness was cross-examined with respect to how he had identified the land possession whereof was recorded as having been handed over in Ex.DW-1/2. He stated that he took the fixed point for reference from the South-Eastern corner of Khasra No. 29/10/2. He stated that he located the plot with the help of Shajra of the village. He further deposed that he was the Patwari of the Village since 1950. He further deposed that one Mumtaz-ud-din owned the land and on being declared evacuee property was taken possession of by the Custodian and was allotted to the defendants.

10. Vide judgment and decree dated 11.10.1979 the learned Trial Judge with reference to Ex. PW-2/1 to Ex. PW-2/4 held as under:

He proved the application Ex.PW2/1 and plan Ex.PW2/2 and that the recommendation of the Pardhan is Ex.PW2/3 and report is Ex.PW2/4. Now, the question arises as to how the evidence of this witness helps the plaintiff. If the plaintiff has obtained some loan, how it can be said that the loan was obtained on the basis of the suit land. Even if the loan has been obtained by the plaintiff, then it would not confer the ownership rights on the plaintiff. PW3 stated that he had been Pardhan of the village. He deposed to the fact that owner of the suit land is the plaintiff and that the custodian is not having any land in site the Abadi as there were not Mohammedans residing there. He proved his signatures on Ex.PW2/3 at mark A. Bow, looking at Ex.PW2/3, it is nothing but a certificate regarding taking loan given by the B.D.O on the recommendation made by this witness. Now, PW4 is Ram Narain. It is understood, whether this Ram Narain is the father of the plaintiff for some other Ram Narain but he has not stated anything about the fact if the land was divided among the brothers. He has stated that custodian was not having any land inside the Abadi and that he has seen the disputed property and that it owned and possessed by the plaintiff. PW5 is the Patwari who has stated that Ex.PW2/3 was issued by him and bears his signatures and he has verified the said plot. In his cross examination, he has stated that the plot was lying vacant and that there is no indication in the record whether any Mohmmedan was the owner of the land. He has not stated as to what were the basis of his verification and how he has arrived to the conclusion that the land is owned by the plaintiff when it was lying vacant. PW6 has stated that the land IS OWNED by the plaintiff and prior to that father of the plaintiff was in possession. PW7 stated that he is partner to F.P.Shop No. 4845, Village Burari and that the plaintiff lives in village Jarodha. Now, the evidence of this witness does not help much. Plaintiff may be living in the village but the question is whether he is the owner of the plot in question or not.

11. The learned Trial Judge has discussed the evidence of DW-1, the Patwari and the documents Ex.DW-1/1 and Ex.DW-1/2 as also 2 other documents Ex.DW-1/3 and Ex.DW-2/4 as under:

No DW1 Jhanji Ram has been examined by the defendant. He is the patwari, custodian. He proved allotment letter Ex.DW1/1. He stated that he went to the village and gave actual physical possession to one of the allottees Sh. Tulshi Nath who was present at the spot and that he gave the possession of plot No. 1 which measures 60' x 60'. Nobody raised any objection. His original report is on the file and certified copy is Ex.DW1/2. In his cross examination he stated that he took only fixed points for preparation of the plan. He denied that there is no custodian land in the village. DW2 is Tulsi Nath who stated that he was allotted land measuring 25 bighas for agricultural purposes in village Jarodha. He was also allotted residential plot and the land was allotted to him by the custodian. They were delivered possession on 3.2.77. He proved Ex.DW1/1 and Ex.DW1/2 and that they have purchased bricks from Balwan Singh vide challan Ex.DW2/1 to Ex.DW2/4. They are in possession of the suit premises. In his cross examination, he has stated that they have not kept any account of the expenditure incurred on construction. DW3 stated that defendant was delivered the possession of the plot. He was present on the spot when the possession was given and the Mundai was carried out by Sh.Nathu Ram Harijan. He has seen the defendant raising the construction. Now, looking at the Ex.DW1/1 and Ex.DW1/2. It is revealed that the plot measuring 400 sq. yds. owned by Sh. Mumatuz-ud-din in village Jarodha Mazra was allotted to the defendants and as per report Ex.DW1/3, the possession was given to one of the defendants.

12. The finding returned is that the evidence on record establishes that the suit property was a vacant piece of land vested in the Custodian and ownership thereof was transferred to the respondents with delivery of vacant physical possession. Thus, claim of the plaintiff of being in possession was negated. Needless to state, since plaintiff did not have title to the suit land, the injunction was refused.

13. In the first appeal the challenge was predicated with reference to the appreciation of evidence. It was urged in the memorandum of appeal that Ex.DW-2/1 and Ex.DW-2/2 were inadmissible in evidence not being proved in accordance with law. It was urged that if said documents were ignored the defendants had no case. It was urged that the learned Trial Judge was wrong in disbelieving the testimony of the witnesses of the plaintiff.

14. Before the learned Appellate Judge an application under Order 41 Rule 27 was filed praying that a Lal Dora certificate may be permitted to be brought on record and proved. Said application was allowed and the Lal Dora certificate was taken on record.

15. Considering the said Lal Dora certificate and the evidence on record, learned Appellate Judge concurred with the view taken by the learned Trial Judge and held that Ex.DW-1/1 as also Ex.DW-1/2 concluded the issue in favor of the defendants vis-a-vis their ownership.

16. The learned Appellate Judge concurred that Ex.PW-2/1 to Ex.PW- 2/4 did not relate to the land as they were mere documents relating to a loan application submitted by the plaintiff and at best it disclosed that the plaintiff was a resident of the Village. Relevant findings of the first appellate court are as under:

The appellant had tried to establish his possession over the suit plot on the date of the filing of the suit by the oral statements of the PWs as well as by the documents Ex.PW2/1, Ex.PW2/2, Ex.PW2/3 and Ex.PW2/4. All these documents relate to an application for the grant of loan moved by the appellant in the year 1975. The evidence of PW1, PW2, PW3, PW4 and PW5 corroborating these documents is also on record. However, a perusal of these documents and the statements of the witnesses merely establishes the appellant's possession much prior to the filing of the suit. This evidence does not establish the appellant's possession of the suit plot at the time of the filing of the suit.

...Oral evidences that at the time of the filing of the suit, the appellant was in possession of the suit land is not believable....

...The other witnesses who spoke about the appellant's possession on the basis of the storage of cow dung cakes etc., cannot be relied upon for the reason that in the vacant land anybody can keep such things. The Lal-Dora certificate which was allowed to be place on record in the appeal is in respect of the whole of the plot of 600 Sq. Yds. and is not an evidence of possession but the evidence of the fact that the suit plot falls in Lal Dora during the settlement operation of the village. It is specifically mentioned in this certificate that it does not confer any right of ownership/license on the certificate holder....

...It also cannot be over-looked that in case of vacant lands the possession normally follows the title. The person having title is presumed to be in possession unless shown otherwise....

...If after that date the appellant or any other resident of the village had kept some cow dung cages or agricultural implements or had tied his animals on the suit plot, that cannot have the effect of ousting the respondents from their lawful possession. For all practical purposes, the respondents continued to be in possession of the suit plot since 3.2.1977. As such the ld. Trial Judge was also justified in holding that the appellant was not in possession of the suit plot....

17. Pertaining to the Lal Dora certificate learned Appellate Judge recorded as under:

The Lal-Dora certificate which was allowed to be placed on record in the appeal is in respect of the whole of the plot of 600 Sq.Yds and is not an evidence of possession but the evidence of the fact that the suit plot fell in Lal-Dora during the settlement operation of the village. It is specifically mentioned in this certificate that it does not confer any right of ownership/license on the certificate holder.

18. Suffice would it be to record that the Lal Dora certificate merely certifies that the land delineated therein falls in the Village Abadi. As noted by the learned Appellate Judge it records a specific disclaimer that it has not to be treated as a document of title in favor of the holder of the certificate.

19. The learned Appellate Judge concluded the judgment by dismissing the appeal.

20. The question of law framed and as noted above has therefore to be considered in light of the aforesaid findings of fact concurrently recorded by both courts.

21. It is thus apparent that the appellant hoodwinked the learned Judge who framed question of law on 17.9.1985, as if the learned Additional District Judge accepted appellant being in possession of the suit land in the year 1975. Indeed, reference to the year 1975 in the decision of the learned Trial Judge and the learned Appellate Judge is in relation to Ex.PW-2/1 to Ex.PW-2/4, being the loan documents submitted by the appellant when he applied for a loan in the year 1975. Probably an inappropriate expression used by the learned Appellate Judge is the cause. The learned Appellate Judge has recorded:

If in the year 1975 the appellant had been applying for loan etc. claiming himself to be the owner in possession of the suit plot, all his rights and interests ceased as soon as the Custodian of evacuee Properties allotted this plot in the name of the respondents and handed over physical possession thereof to them.

22. The word 'if ' makes it clear that the learned Appellate Judge dealt with the issue on the assumption as recorded in the subsequent part of the sentence. It needs hardly any explanation that where a person explains a circumstance or a fact prefacing the same by the word 'if ', it is explanatory of what would be the consequence if a fact is assumed to exist.

23. Thus, looked at from any angle the question of law as framed requires to be answered by holding that the evidence on record did not establish appellant being in possession of the suit land. The evidence on record does not establish appellants possession over the suit land. The evidence on record establishes not only title but even possession of the defendants on land being allotted to them by the Custodian of the Evacuee Property.

24. The documents Ex. DW-1/1 and DW-1/2 are certified copies of the sale certificate and possession report which were proved by the Patwari DW-1 on basis of original record. The documents have been proved as required by law.

25. Before concluding I may note that if a person tethers cattle or places cow dung or farm implements on a vacant land the said fact does not constitute possession.

26. I find no merits in the appeal.

27. Dismissed.

28. Costs shall follow.

29. LCR be returned.