Ram Parshad vs Madan Lal & Anr.
2008 Latest Caselaw 2086 Del

*                 IN THE HIGH COURT OF DELHI

                        Judgment reserved on : October 16, 2008
%                     Judgment delivered on : November 26, 2008

+                      RFA 344/2001

RAM PARSHAD                                   ..... Appellant

                  Through:   Mr.Ujjal Singh with Mr. J.P.
                             Singh, Advocate

            VERSUS

MADAN LAL & ANR.                            ..... Respondents

                  Through:   Mr.J.P. Mishra, Advocate

CORAM:

Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice J.R. Midha

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?


: PRADEEP NANDRAJOG, J.

1. Appellant, as plaintiff, has been unsuccessful in

obtaining a decree for possession of the disputed premises

being 100 sq. yards of land comprised in Khasra Nos. 142 and

143, Village Maujpur, consisting of a construction on the

ground floor and the first floor thereof as also recovery of

damages against the respondents, who, needless to state

were the defendants in the suit.

2. Claim of the appellant in the plaint was that the

suit land given Municipal No.233, Krishna Gali No.7, Maujpur,

Shahdara being on 100 sq. yards of land comprised in Khasra

Nos.142 and 143 of Village Maujpur was purchased by him

under an agreement to sell, Ex. PW-1/4 executed in his favour

by Kartar Singh on 6.1.1989 who had also executed a receipt,

Ex.PW-1/3, in his favour when he received Rs.25,000/- from

him and had also executed a power of attorney of even date,

Ex.PW-1/2, empowering him to deal with the property and

that at that time the construction consisting on the land was

one shop and a hand pump. He alleged that the suit property

was delineated as per plan, Ex.PW-1/1, and that after

acquiring the property he raised further constructions thereon

by constructing two rooms on the ground floor and one room

with bath and toilet on the first floor. He stated that for some

time he conducted business of a sweet meat shop but closed

the same and locked the property in the month of April 1994

and that the defendants illegally and forcibly occupied the suit

property on 3.5.1994. Alleging that he served a notice dated

22.9.1995, Ex.PW-1/6, posted vide receipts Ex.PW-1/7 and

PW-1/8 under registered post, as also under certificate of

posting vide certificate, Ex.PW-1/9, calling upon the

respondents to hand over possession; stating that none was

handed over, the suit was filed.

3. The suit was resisted by respondent No.1,

pleading that the appellant was his uncle and that he had full

faith in the appellant and being desirous of purchasing a

house he asked the appellant to find a suitable property and

purchase the same for him and that the entire sale

consideration of Rs.25,000/- was paid by him to the appellant

in January 1989 for payment to the seller when the suit

property was purchased from Kartar Singh. It was pleaded

that being close relations, respondent No.1 never bothered to

check on the title documents and that since January 1989 was

in possession of the property and that in April 1993 he

constructed two further rooms on the ground floor, a staircase

leading up to the first floor as also a room on the first floor. It

was pleaded that respondent No.2 was occupying the room on

the first floor.

4. Respondent No.2 impleaded as defendant No.2

filed a written statement affirming that he was in possession

of the room on the first floor.

5. Needless to state, on the pleadings of the parties,

the material issue which arose for consideration was, whether

the plaintiff was the owner of the suit property and whether

the defendants took forcible possession thereof on 3.5.1994

as pleaded in the plaint. The issue of damages was a

consequential issue and required to be decided if afore noted

issue was held in favour of the appellant.

6. Appellant examined himself as PW-1 and reiterated

the facts narrated in the plaint. Site Plan, Ex.PW-1/1, a receipt

of Rs.25,000/- dated 6.1.1989, Ex.PW-1/3, agreement to sell

dated 6.1.1989, Ex.P/W-1/4, power of attorney dated

29.3.1995, Ex.PW-1/5, the legal notice dated 22.9.1995,

Ex.PW-1/6 and the postal receipts Ex.PW-1/7 to PW-1/9 were

referred to by him in his testimony and were assigned the

exhibit marks as afore noted. Appellant also deposed of

having executed a general power of attorney on 29.3.1995 in

favour of one Saraswati Devi by him which was proved as

Ex.PW-1/5. The same empowered Saraswati Devi to deal with

the subject property i.e. 233, Krishna Gali No.7, Maujpur,

Shahdara, Delhi. It would not be out of place to further record

that the appellant led no evidence to show his funds where

from Rs.25,000/- flowed to the coffers of the seller Kartar

Singh.

7. PW-2, R.S. Yadav, a draftsman, deposed that he

prepared the site plan Ex.PW-1/1.

8. Satish Kumar, PW-3, deposed in support of the

appellant and stated that when appellant got effected further

construction from Amar Singh, he paid Rs.60,000/- to Amar

Singh for effecting the same.

9. PW-4, Amar Singh, the stated builder of further

constructions deposed that he raised further constructions at

the asking of the appellant on the suit property, but failed to

file any documentary evidence to show that he ever

functioned as a contractor or that he received any money

from the appellant or effected further constructions.

10. The respondent No.1 examined himself as his own

witness and reiterated his defence. He cited and produced

Jeet Pal, DW-2 and Pawan Kumar, DW-3 as witnesses who

deposed that they were residents of the area and that since

1989 they had been seeing respondent No.1 in possession of

the entire property and that the appellant was never in

possession thereof nor did he carry on any business of selling

sweet meats from the premises in question.

11. Defendant No.2, Bal Kishan examined himself as

DW-2/1 and also deposed that he was occupying the room on

the first floor. He deposed that Mohan Lal, defendant No.1

raised further constructions on the property.

12. The defendants i.e. the respondents had urged

before the learned Trial Judge that the documents filed by the

appellant to show title i.e. the agreement to sell dated

6.1.1989, Ex.PW-1/4; the stated General Power of Attorney,

Ex.PW-1/2, executed by Kartar Singh in favour of the appellant

being unregistered documents could not be looked into as a

title document. The receipt Ex.PW-1/3 purportedly executed

by Kartar Singh in favour of the appellants, though a

registered document was urged as no proof of title as the

same did not record the purpose for which the receipt was

executed.

13. Notwithstanding that it has become a practice in

Delhi to purchase properties under agreement to sell and

registered power of attorney and that in unauthorized

colonies in Delhi, the colony in which the suit property is

situated being an unauthorized colony, no registered

documents have ever been executed to convey title; and

notwithstanding the suit being based on title, for

unexplainable reasons, during final arguments learned

counsel for the appellant changed track and urged before the

learned Trial Judge that the suit for possession is based not on

title but on prior possession and illegal dispossession of the

appellant there from.

14. This is evident from para 18 of the impugned

judgment, relevant part whereof reads as under:-

"............................. During the course of arguments, Ld. counsel for the plaintiff conceded that his suit does not fall under Article 65 of the Limitation Act as his suit is not based on title. This submission of Ld. counsel for the plaintiff is contrary to the case of the plaintiff himself as stated in the plaint. From the perusal of the plaint, it is clear that plaintiff has come on the basis of title in respect of the property in suit against the defendants. However, since this admission was conceded by Ld. counsel for the plaintiff that his suit is not based on title, now it is to be seen if the plaintiff is entitled to possession of the property in suit based on previous possession and not on title, as per Article 64 of the Limitation Act."

15. Notwithstanding aforesaid concession made by the

appellant before the learned Trial Judge, the learned Trial

Judge has considered the evidence led by the parties and has

returned a finding against the appellant pertaining to title. A

number of reasons which we have been able to cull out from

the decision of the learned Trial Judge are as under:-

(a) Appellant led no evidence save and except oral

statements of being in possession of the property after its

alleged purchase in January, 1989. The appellant could not

sustain the plea with reference to any documentary evidence.

The appellant failed to prove that he conducted business as a

sweet meat seller from the premises. The conclusion drawn is

that the plaintiff was never in possession of the property.

(b) The appellant was not even aware of the extent of

constructions on the property and in any case falsely deposed

of having raised further constructions of two rooms on the

ground floor and a room on the first floor in 1993, evidenced

by the fact that the power of attorney, Ex.PW-1/5, stated to

have been executed by the appellant in favour of Saraswati

Devi recorded:-

"WHEREAS THE EXECUTANT IS THE GENERAL ATTORNEY OF POSSESSION LAND AREA MEASURING 10 SQ. YDS. OUT OF KHASRA NO.142 and 143, Bearing Plot No.233, Consisting of One Shop and One Hand Pump, SITUATED AT VILLAGE MOUJPUR IN THE ABADI OF KRISHNA GALI NO.7, ILIAQA SHAHDARA, DELHI, which is bounded as under:-

............................

............................"

(Note: Aforesaid is the exact quote from Ex.PW-1/5

and hence the grammatical errors)

The conclusion drawn by the learned Trial Judge is that Ex.PW-

1/5 shows that even in the month of March, 1995 the

appellant described the suit property as consisting of only one

room with a hand pump on the ground floor but the over

whelming evidence, as indeed even pleaded in the plaint, was

that by the year 1993 additional constructions had come up

on the ground floor and the first floor.

(c) That the notice Ex.PW-1/6 served upon the defendants

i.e. the respondents was dated 22.9.1995; the alleged date of

the trespass as pleaded in the plaint was 3.5.1994; view taken

by the learned Trial Judge is that this is an un-natural conduct

of an owner who is dispossessed from his property. It has

been held that it was un-natural conduct to cause to be issued

a legal notice after one year and four months of the alleged

trespass. The learned Trial Judge has further found it strange

that the appellant never approached the police authorities,

which would be the normal conduct of the owner of a property

who is illegally dispossessed there from, to go to the police

authorities alleging trespass into his property and try to

regain possession before the trespasser enters into settled

possession.

(d) From the fact that the appellant and respondent No.1

were uncle and nephew and that respondent No.1

successfully established being in possession of the property

since its purchase in January 1989, learned Trial Judge has

opined that this conduct leads to an inference that respondent

No.1 had paid for the consideration. The reasoning of the

learned Trial Judge, though not expressly so stated, appears

to be that the normal conduct of the owner of a property is to

take possession from the seller.

(e) Lastly, the learned Trial Judge has picked on a

suggestion given by the appellant to respondent No.1 during

trial holding the same to be an admission of the appellant that

respondent No.1 had paid the money when property was

purchased from Kartar Singh. The suggestion has been

inferred from an answer given by respondent No.1, during

cross-examination, which reads as under:-

"It is correct that plaintiff has purchased the property in dispute from Kartar Singh for consideration of Rs.25,000/- which was paid by me and for me."

16. Needless to state the suit filed by the appellant

was dismissed vide impugned judgment and decree dated

17.3.2001.

17. Contention urged by learned counsel for the

appellant at the hearing of the appeal was that the counsel for

the appellant made a wrong concession that the suit was

based on prior possession i.e. possessory right and not on

title. Counsel urged that since respondent No.1 admitted title

being acquired from Kartar Singh and Ex.PW-1/2, Ex.PW-1/3

and Ex.PW-1/4 were the only documents evidencing Kartar

Singh transferring title to the property the learned Trial Judge

erred in holding that the appellant did not prove title to the

suit property. Lastly, counsel urged that the so called

admission, inferred from the suggestion given by the

appellant to respondent No.1 during cross-examination was

incorrect, being divorced from the totality of the suggestions

given to respondent No.1 during cross-examination.

18. Indeed, the adverse inference drawn by the

learned Trial Judge with reference to the suggestion given by

the appellant to respondent No.1 during cross-examination of

said respondent is incorrect for the reason it is impermissible

to pick on part testimony of a witness and de-link the same

from the general testimony and thereafter arrive at

conclusions. Indeed, it appears that the respondent No.1

volunteered a statement to exceed the answer to the question

posed which has resulted in an impression being created that

the question was incorrectly framed. Thus, the last reasoning

of the learned Trial Judge is indeed incorrect.

19. Ignoring the same, being the first appeal, we re-

look into the evidence. Indeed, the appellant has led no

evidence of being in possession of the property since its

purchase. Save and except the self-serving statement by the

appellant and his witnesses of being in possession of the suit

property since its purchase on 6.1.1989 we find no evidence

of possession. Further, admittedly, a common fact asserted

by the litigating parties, at the time of its purchase on

6.1.1989 the property consisted of the land with only one

room thereon and a hand pump. It was the common case of

the parties that two rooms on the ground floor, a staircase

leading from the ground floor to the first floor and a room on

the first floor was constructed later on. The appellant claimed

to have got constructed the same from the contractor, Amar

Singh, examined as PW-4. The respondent No.1 claimed to

have constructed the same from his own funds. That the

appellant was alleging and attempting to prove incorrectly is

evidenced from Ex.PW-1/5 executed by the appellant on

29.3.1995, which as noted in para 14(b) above recorded that

the subject property consists of only one shop and a hand

pump. This probablizes the fact that as on 29.3.1995 the

appellant was not even sure of the extent of construction on

the land; which in turn probablizes that the appellant had no

concern with the property. It is not out of context to note that

the reasons recorded by the learned Trial Judge of a person

being dispossessed of his property immediately rushing to the

police or seeking recourse to a civil court being absent in the

instant case is a good reason to disbelieve the appellant.

Indeed, if the trespass took place on 3.5.1994 we find it

strange conduct for the appellant to wake up after one year

and four months to resort to an action coupled with the fact

that the appellant never reported the trespass to the police.

With respect to the plea of respondent No.1 that since

appellant was his uncle he trusted the appellant to purchase a

suitable property for him, for his residence. Indeed, in

unauthorized colonies possession is virtual ownership because

everybody is occupying property on so called title documents

which the law of transfer of property does not recognize to be

title documents. But, since, to be meaningful, the rule of law

must run close to the rule of life, ground realities are being

accepted and civil disputes are being resolved applying the

test of reasonable human conduct i.e. how would a reasonable

human being, in an unauthorized colony, conducting his/her

affairs.

20. We find no merit in the appeal which is dismissed

but without any costs.

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J.

November 26, 2008 rk