Shri Om Prakash Sharma vs Shri Kishan (Deceased) Thr. Lrs.
2009 Latest Caselaw 312 Del

                                                       REPORTABLE


*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                           R.S.A. No. 41/1987

                                Date of Decision: January 30, 2009


        SHRI OM PRAKASH SHARMA                       ..... Appellant
                       Through Mr. J.K.Seth, Senior Advocate with
                       Ms. Shalini Kapoor, Advocate.

                       VERSUS


        SHRI KISHAN (DECEASED) THR. LRS.       ..... Respondents
                        Through Mr. Sunil Agrawal, Advocate with
                        Mr. Sarfaraz Ahmed, Advocate

        CORAM:
        HON'BLE MS. JUSTICE REKHA SHARMA

1.      Whether the reporters of local papers may be allowed to see the
        judgment? Yes
2.      To be referred to the reporter or not? Yes
3.      Whether the judgment should be reported in the 'Digest'? Yes

REKHA SHARMA, J.

Om Prakash Sharma is the appellant before me. He had filed a

suit for possession with regard to plot bearing No.25/59, Shakti Nagar,

New Delhi against Shri Kishan predecessor-in-interest of the present

respondents. The suit was filed on the basis of title. It was specifically

alleged in the plaint that the appellant had become owner of the plot

by virtue of a registered sale deed dated September 28, 1978 duly

executed in his favour by the then owner Mohd. Yusuf and that the

respondent had occupied a portion of the same on or about

January 25,1978. The suit was instituted on September 11, 1979.

The respondent contested the suit principally on the grounds

that the appellant was not the owner, that he had himself become

owner by adverse possession and that in any case the suit was barred

by limitation. The parties went to trial on the following issues:-

1) Whether the plaintiff is the owner of property in dispute? OPP

2) Whether the defendant is in adverse possession of property in

dispute for more than 25 years as alleged in the written

statement? OPD

3) Whether the suit of the plaintiff is properly valued for the

purpose of court fee and jurisdiction? OPP

4) Whether the suit is barred by time? OPD

The learned Subordinate Judge by his judgment dated

October 01, 1981 passed a decree for possession in favour of the

present appellant holding that he was owner of the suit property, that

the respondent had not acquired title by adverse possession and the

suit was not barred by limitation. It was also held that the suit was

properly valued for the purpose of court fee and jurisdiction.

Aggrieved by the judgment and decree of learned Subordinate

Judge, the respondent preferred an appeal. The learned Additional

District Judge agreed with the learned Subordinate Judge that adverse

possession was not proved and the suit was not barred by limitation.

However, she accepted the appeal and set aside the impugned

judgment and decree on the ground that the appellant had failed to

prove his title. It was then the turn of the appellant to file the appeal.

Before I proceed to deal with the contentions raised before me, I

may mention that both the courts below having held that adverse

possession was not proved and the suit was not barred by limitation, I

am not inclined to interfere with those findings, the same being based

on appreciation of evidence. Even otherwise keeping in view the fact

that the suit was instituted on September 11, 1979 the respondent was

required to prove that he was in adverse possession since before

September 10, 1967. Of-course, the respondent did produce letters

Ext.DW8/1, DW9/1 and DW10/1 but they do not prove his possession

on or before September 10, 1967 much less that the possession was

adverse. As far as oral evidence is concerned DW1 admitted having

never entered the suit property and could not even give the block

number of the property in question. DW3 lived streets away from the

suit property and his testimony was disbelieved on valid grounds. DW7

had deposed that he had put certain cement sheets on the suit

property in the year 1957. Both the courts below have rightly rejected

his testimony too and on valid grounds. Coming to the statement of

the respondent he neither placed on the record ration card nor he led

evidence to show that he had given the address of the property in

question in the schools of his children. Rather that record bears some

other address. Even the voters list was not produced. It cannot thus be

said that the evidence has been wrongly rejected.

During arguments it was contended by learned counsel for the

respondents that the first appellate court had rightly held that the title

of the appellant was not proved. I do not agree. The suit was on the

basis of title and in the very first paragraph of the plaint the appellant

had categorically stated that he had become owner by virtue of a Sale

Deed executed in his favour on September 28, 1978 by one Mohd.

Yusuf. That Sale Deed is Ext.PW1/1 and its execution has been duly

proved by its attesting witness PW4 Shri R.P.Sharma. Besides that

attesting witness, its execution was also proved by the appellant

himself. The First Appellate Court admits that on account of that

evidence the execution of the Sale Deed stands proved. However, she

has despite that held ownership as not proved principally on two

grounds. Firstly that proof of execution of the Sale Deed Ext.PW1/1 did

not prove its contents and secondly the vendor Mohd.Yusuf was not

proved to be the owner. With respect I feel that the First Appellate

Court went wrong on both the counts.

Primary evidence means the document itself produced for the

inspection of the court. Section 61 of the Evidence Act, 1872 embodies

the general rule that the contents of a document may be proved either

by primary or secondary evidence. If the original document exists and

is available it must be proved because it is the best evidence. The

contents of a document can be proved by the document itself. After all,

when a given matter has been expressed in writing the primary

evidence is the writing itself. The sale-deed Ex.PW1/1 having been

proved and the mode of proof having in any case not been objected to,

it is the best evidence of its contents. Therefore, the finding of the

learned First Appellate court that the contents of the sale-deed were

not proved cannot be sustained.

Coming to the question that Mohd. Yusuf was not proved to be

the sole heir of his predecessor-in-interest, it is significant to note that

the respondent himself in his own statement had deposed that he did

not know who was the owner of the suit property. He further stated

and I quote" I cannot say whether the property in dispute belongs to

the plaintiff." The title of the appellant was thus not specifically denied

in evidence. In any case he had not stated in the witness box that

Mohd.Yusuf was not the sole heir of his predecessor-in-interest or that

he had no right, title or interest in the suit property to transfer.

Of-course, reliance was placed on Agreement Ext.DW1 executed

between Aziz Begum as owner and Delhi Improvement Trust. It shows

that Aziz Begum had agreed to transfer the land to Delhi Improvement

Trust only for the purpose of development by it and the Delhi

Improvement Trust had agreed to transfer the land after development.

However, there is no evidence on record that consequent upon that

agreement the land was actually transferred to Delhi Improvement

Trust. In any case, it is not the case of the respondent that consequent

upon that agreement the land was actually transferred to Delhi

Improvement Trust. Thus Aziz Begum has to be taken as the owner

even after execution of the agreement. In Ext.D1 she is stated to be

the wife of Niaz Ahmed. Mohd. Yusuf is also the son of Niaz Ahmed as

borne out from PW1. There is no evidence nor any allegation that the

father of Mohd. Yusuf was some Niaz Ahmed other than the husband of

Aziz Begum. Faced with this situation reliance was placed on Exhibit

DC which is the voters-list and wherein Mohd. Yusuf is shown to be the

son of Mohd. Yakub and consequently, it was sought to be contended

that Mohd. Yusuf was not the son of Niaz Ahmed. What needs to be

noticed is that the voters-list Exhibit DC was not got filed by any officer

from the Electoral Department or by any other person. It was just

tendered and exhibited without examining any person. The person

who prepared the list was also not produced. It cannot thus be taken

to be substantive piece of evidence and is no proof of the fact that

Mohd. Yusuf is not the son of Niaz Ahmed, specially, in view of

Ex.PW1/1 which as noticed above was duly proved by the appellant. It

was also sought to be contended that Aziz Begum had left behind other

heirs besides Mohd. Yusuf and that consequently being not the sole

heir he could not sell the property as sole owner to the appellant. This

is not specifically pleaded. In any case it is not proved that at the time

of execution of Sale Deed Ext.PW1/1 other heirs of Aziz Begum were

alive. What I do find is that the learned Trial Court has dealt with it in a

detailed manner and in view of what has been noticed by me above,

passing of the title to the appellant stands proved moreso, when the

respondent himself had specifically denied his ownership in the witness

box.

I may mention that since the appellant has proved his title and

as adverse possession has not been proved and as it is further not

proved that the respondent was in possession since before

January 27, 1978 the suit has rightly been held by the learned Trial

Judge to be not barred by limitation.

Before I conclude, it may be noticed that the custodian of

evacuee property had filed an application under Order 1 Rule 10 of the

Code of Civil Procedure which was directed to be heard along with the

appeal but none appeared for the custodian to press the application.

The same is, therefore, dismissed in default.

For the reasons recorded above, the appeal is accepted. The

judgment and the decree passed by the learned Trial Court is affirmed.

Parties are left to bear their own cost.

REKHA SHARMA, J.

JANUARY 30, 2009 GN