Ashok Kumar Biswas vs Shyam Dass Banerjee & Ors.
2008 Latest Caselaw 1653 Del

*                    IN THE HIGH COURT OF DELHI


+                         RFA 445/2005


ASHOK KUMAR BISWAS                               ..... Appellant

                     through: Mr.J.M. Bari with Mr. Ashok Jaswal
                     and Mr. K.S. Kadam, Advocates


              VERSUS


SHYAM DASS BANERJEE & ORS.                      ...... Respondents

                     through:Nemo


                          DATE OF DECISION:
%                            15.9.2008


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. (Oral)

1. The appellant, a practicing lawyer filed a suit

seeking recovery of goods, books as also compensation by

way of damages alleging that the respondent No.1 had

usurped his goods being, two tables, one revolving chair, two

ordinary chairs, one wall fan, one typewriter, one black and

white television, one steel book shelf, two steel racks, one

bicycle, two sitting settees, one almirah, one jute carpet and

two curtains.

2. It was pleaded in the plaint that the appellant was

on the look out for an office space and that defendant No.1,

who was running a shop bearing No.2A at Chittaranjan Park

Market No.3, allowed the appellant to use the shop which was

stated to be an encroachment on DDA land. Appellant stated

that he took possession of the premises on 12.5.1991 and

since the premises was in a shamble he spent money to make

the same habitable and shifted his moveable articles in the

said shop.

3. The appellant pleaded that the rent payable per

month was Rs.200/- which was subsequently raised to

Rs.400/- and that he paid Rs.5,000/- to the defendant No.1 on

12.5.1991.

4. It was pleaded that being constructed on land

belonging to DDA the said authority sought to demolish the

shop. That defendant No.1 along with some other persons

whose properties were likewise targeted for demolition by

DDA filed WP(C)No.3426/1987 titled "D.K. Mukherjee & Ors.

Vs. DDA". Demolition was stayed by this Court. That

appellant requested defendant No.1 to execute documents

recording that if DDA gave possession of an alternative site to

him, defendant No.1 would permit appellant to use the same

as a tenant.

5. It was pleaded in the plaint that in the year 1993

serious disputes arose between the plaintiff and his father

forcing him to shift away from Chittaranjan Park and that

since 1st July, 1994 the room taken on rent remained locked.

In para 9 of the plaint it was pleaded that on 7.8.1994,

defendant No.1 threatened to take forcible possession of the

shop requiring the appellant to lodge a complaint with the

Police on 7.8.1994. In para 16 of the plaint, appellant

pleaded that on 7.2.2000 when he went to the shop, he found

his belongings had disappeared.

6. On the aforesaid averments the suit was filed on

6.2.2003. Return of moveables was prayed for. Damages by

way of recompense for money spent on the shop for

renovation was claimed.

7. Vide impugned judgment and decree dated

24.2.2005, holding that the suit was barred by limitation, the

same has been dismissed.

8. The basis of the decision is Ex. PW-1/B, the

complaint lodged by the appellant with the local Police on

8.2.2000 in which the appellant informed the Police that since

1994 he was not using the shop for running his office. The

learned Trial Judge has opined that therefrom, a reasonable

inference could be drawn that the appellant was not in

possession of the premises since 1994 and that assuming that

the goods of the appellant were misappropriated, the said

event took place in the year 1994 and hence the suit filed in

the year 2003 was barred by limitation.

9. Learned Trial Judge has further noted that on

7.8.1994, Ex. PW-1/C, when the complaint was made to the

local Police against defendant No.1, the appellant clearly

stated that on 7.8.1994 he was threatened with dispossession.

The conclusion drawn by the learned Trial Judge is that even

said letter probabalizes that the appellant ceased to be in

possession of the disputes property as on 7.8.1994.

10. With reference to Ex. PW-1/D, a letter dated

19.10.1994, written by the appellant to the Vice chairman,

DDA in which appellant sought an alternative accommodation

in lieu of the shop in question and Ex. PW-1/E being a legal

notice dated 23.11.1994 served by the appellant on the Vice

Chairman, DDA in which a claim for alternative site was made

on the assertion that the appellant had paid valuable

consideration to respondent No.1 while acquiring possession

of the subject property, learned Trial Judge has held that

these documents evidence a serious dispute pertaining to not

only possession but even right to an alternative

accommodation from DDA in lieu of the site and that in all

probability the appellant lost the possession in 1994.

11. So holding, learned Trial Judge has held that not

only was the suit relatable to the plea of return of moveable

property barred by limitation but even in respect of the claim

for damages for unlawful dispossession was barred by

limitation for the reason, dispossession if any, took place in

the year 1994.

12. Learned counsel for the appellant at the hearing

today could hardly advance the case of the appellant save

and except to re-urge the pleas which have already been

dealt with by the learned Trial Judge. Learned counsel urged

that the learned Trial Judge has not returned a categorical

finding as to when was the possession surrendered or

otherwise taken over and hence it cannot be said that the

appellant lost possession of the premises and the goods in the

year 1994.

13. In our opinion the issue has to be resolved with

reference to the normal course of human conduct and the

preponderance of probabilities on the competing versions. Ex.

PW-1/C, Ex. PW-1/D, Ex. PW-1/E are all written in the year

1994. The same show a competing claim for possession of

the shop in question inter-se the appellant and defendant

No.1. It be noted that the shop was an unauthorized

construction on land belonging to DDA and DDA was taking

over possession of the site; there was some scheme to

rehabilitate the existing occupants by offering a permanent

shop at a market place to be constructed by DDA. On being

cross-examined, appellant admitted that litigation was

pending in the Delhi High Court between D.D.A. and

unauthorized occupants who had constructed shops by

trespassing onto land belonging to DDA. The appellant further

admitted that he had filed a suit against defendant No.1 and

DDA which was pending before a Civil Judge, Delhi claiming a

right to be allotted the regular shop under the policy of

rehabilitation framed by DDA. In his deposition appellant

stated that he last used the shop for running his office in the

year 1994.

14. If the evidence is probalized with reference to the

pleadings of the appellant, relevant part whereof has been

extracted by us in the preceding paras of our judgment, it

stands out that the dispute qua possession of the shop

surfaced in the year 1994. The appellant who had a residence

at Chittaranjan Park, as pleaded by him in the plaint, shifted

to a different colony in the year 1994. Thus, regard being had

to the common course of natural events, human conduct and

private business it would not be wrong to presume the

existence of the fact that the appellant lost possession,

probably voluntarily surrendered the same, in the year 1994.

15. Thus, the suit filed in the year 2003 claiming

damages and recovery of goods was clearly barred by

limitation.

16. Before concluding we may note that the appellant

is a lawyer and professes a profession which is a calling. His

conduct of taking on rent a small shop which was an

unauthorized construction of DDA land and thereafter

harassing the respondent No.1 has to be frowned upon.

17. It appears to be a case of the appellant trying to

grab the regular shop which has to be allotted by DDA to

defendant No.1 under a policy framed by DDA to rehabilitate

the unauthorized occupants who would be evicted from the

site where the shop in question was constructed by defendant

No.1; adjoining sites being under unauthorized occupants of

other persons.

18. We find no merit in the appeal.

19. The appeal is dismissed with costs.

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J.

September 15, 2008 rk