Vidyawanti (Deceased) Through ... vs Gauri Biswas
2010 Latest Caselaw 3765 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Judgment Reserved on: 11.08.2010
                  Judgment Delivered on: 13.08.2010

+            RSA No. 69/2008 & CM No.4183/2008


VIDYAWANTI (DECEASED) THROUGH LRs.
                           ...........Appellant
             Through: Mr.K.R.Chawla, Advocate.

                   Versus

GAURI BISWAS                        ..........Respondent
                   Through:    Mr.Ashok Kumar and Ms.Raj Rani,
                               Advocates.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?                Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes


INDERMEET KAUR, J.

1. The plaintiff Vidyawanti had filed a suit for possession,

recovery of damages and mandatory injunction. It was alleged that

the plot no.A/69 and A/70 measuring 220 sq. yards situated in

Dabri, Vashist Park, Delhi of which she was the owner had partly

been illegally usurped by the defendants i.e. an area of 133 sq.

yards. Decree for possession as also for mandatory injunction

seeking a direction that the defendants be directed to demolish the

super structure constructed therein be passed in her favour.

2. Amar Nath the husband of the plaintiff was the original

owner of this plot. He had purchased this property from Bimal

Singh vide sale deed dated 7.2.1967. He died in 1975 leaving

behind his widow the plaintiff Vidyawanti and four daughters. The

daughters had relinquished their shares vide a relinquishment

deed in favour of the plaintiff.

3. Sometime in the last week of February 1984, plaintiff was

informed by an unknown person that a dispute relating to her plot

was going on at the police station at Delhi Cantt. Plaintiff was

surprised to know that defendants no.1 and 2 relied upon a deed of

agreement, receipt and will, all dated 22.8.1979 alleged to have

been written by the plaintiff in favour of defendant no.1 wherein

the plaintiff had parted with the suit property in favour of

defendant no.1 for a sum of Rs.3500/- as was evidenced from the

said receipt. As per the case of the plaintiff, the said documents

were forged. Complaint to the said effect was filed in the police

station. On 1.3.1984, plaintiff issued a legal notice to the

defendants calling upon them to vacate the aforesaid plot but they

failed to do so. The defendants are illegal occupants of the suit

property to which the plaintiff is entitled. Accordingly, the suit,

aforenoted, was filed.

4. In the written statement, it has been contended that village

Dabri had been acquired by an award no.2114 of Village Dabri

dated 27.6.1968; the government had acquired 99 bighas 1 biswa

of land which included the land of the plaintiff as such the said land

has vested in the government. Plaintiff not being the owner has no

locus standi to file the present suit. This is fortified by the fact that

the husband of the plaintiff namely Amar Nath also filed his claim

under Section 9 and 10 of the Land Acquisition Act. The further

contention of the defendant was that in spite of the fact that the

land had vested in the government but to assuage the plaintiff, the

defendants had entered into an agreement for sale dated 22.8.1979

wherein a sum of Rs.3500/- had been paid by defendant no.1 to the

plaintiff for the purchase of this property. Will and receipt of even

date had been executed by the plaintiff. The said documents were

witnessed by T.R.Sharma and Suresh Kumar both of whom are

sons-in-law of the plaintiff; the plaintiff cannot go back on this

version.

5. Trial Court had framed five issues. On behalf of the plaintiff

Vidyawanti, the plaintiff herself came into witness box as also PW-2

and PW-3 who were neighbours. On behalf of the defendant two

witnesses had been examined i.e. the defendant Gauri Biswas and

M.C.Roy who had been examined as DW-2 who was an attesting

witness to these documents i.e. agreement to sell, receipt, will all

dated 22.8.1979. The said documents had been proved as Ex.DW-

1/2 to Ex. DW-1/4. The Trial Judge had decreed the suit of the

plaintiff for possession; damages were however not awarded.

Finding of the Trial Judge was based on her title to the property.

The documents Ex.DW-1/2 to Ex.DW-1/4 upon which the

defendants had placed reliance had been discarded as admittedly,

no sale deed had been executed by plaintiff in favour of the

defendants. The defence of the defendants that the land stood

acquired by the government by an award dated 27.6.1968 was also

rejected; the onus to discharge this issue was upon the defendants

which they had failed to discharge.

6. The first Appellate Court allowed the appeal; judgment and

decree of the Trial Court was set aside. The Court took into

consideration the fact that the award no.2114 dated 27.6.1968 was

a public document under Section 74 of the Indian Evidence Act.

The presumption of the proof of the document had been

established. The Court below had erred in not considering this

document which clearly evidenced that the disputed land had stood

acquired by the government divesting the plaintiff's title in the suit

property. The documents Ex.DW-1/2 to Ex.DW-1/4 had given

adequate protection to the defendants under the provisions of

Section 53A of Transfer of Property Act and as such even in the

absence of a sale deed having been executed in their favour the

defendants were entitled to the protective umbrella under the

aforenoted provision. The Court had further held that Ex. DW-1/6

i.e. the sale deed dated 7.2.1967 executed in favour of the husband

of the plaintiff in respect of the suit property had in fact been

proved through the testimony of a defence witness which had also

substantiated the defence of the defendants that this document had

come into their hands only after the plaintiff had agreed to transfer

the title of the suit property in favour of the defendants. Suit of the

plaintiff had accordingly been dismissed.

7. This is a second appeal. On 12.8.2008 the following

substantial questions of law had been formulated:

1. Whether the land shall be deemed to have been acquired when neither the possession taken over by the Government for the last about 39 years nor proved that any compensation was paid or received?

2. Whether the agreement to sell (which is not admitted by the appellant) nor the possession given or taken in pursuance to the alleged aforesaid agreement to sell confer title upon the respondent or not or is the respondent entitled to protection under Section 53-A of the Transfer of Property Act?

3. Whether without exhibiting the alleged award nor producing a formal proof and without confronting the appellant under section 145 of India Evidence Act, can be relied upon. Had the alleged certified copy of the award been exhibited?

8. The first argument urged before this Court is that the

reliance by the first Appellate Court on award no.2114 dated

27.6.1968 was an illegality. This document had not been

proved on record. Section 74 of the Evidence Act only

describes public documents; even presuming that it was a

public document only a certified copy of the same could be

tendered to prove this document. The document on record

was not even a certified copy. There was no proof before the

Court that the plaintiff or her predecessor-in-interest had

received any compensation in lieu of the land acquisition;

the absence of the possession of the said land having been

taken over by the government under Section16 of the Land

Acquisition Act, the proceedings even otherwise did not

stand culminated and as such, such a finding of the Trial

Court is an incorrect proposition of law. Learned counsel for

the appellant has placed reliance upon AIR 1987 SC 2421

The Special Land Acquisition Officer, Bombay and Ors. Vs.

M/s Godrej and Boyce to support his submission that in the

absence of any proceedings under Section 16 of the Land

Acquisition Act, the possession not having been taken over,

the Award by itself is not sufficient to pass title to the

government.

The next submission of the learned counsel for the

appellant is that the plaintiff was admittedly the owner of the

suit property and once it is established that the title has not

passed with the government, the plaintiff continues to the

owner. The documents Ex.DW-1/2 to Ex.DW-1/4 do not pass

any title to the defendants; the said documents are forged

and fabricated and a police complaint to the said effect had

also been filed. The first Appellate Court had fallen in grave

error by herself examining the handwriting and making a

comparison of the said documents and for this proposition

reliance has been placed in the judgment reported in AIR

1979 SC 14 State (Delhi Admn.) Vs. Pali Ram ; it is submitted

that it is not advisable that the judge should take upon

himself the task of comparing the admitted writing with the

disputed one to find out whether the two agree with each

other; the prudent course is to obtain the opinion and

assistance of an expert. Reliance has also been placed upon

AIR 1995 Orissa 131 Laxmi Bai Vs. A. Chandravati , AIR 1992

Allahabad 346 Smt.Hamida Vs. Smt.Humer & Ors. , AIR 1996

SC 1140 O.Bharthan Vs. K.Sudhakaran & Anr. to

substantiate the same submission. Ex.DW-1/5, the house tax

receipt of which reliance has been placed upon by the first

Appellate Court also related to a separate property which has

a distinct property number and this is evident from the

document itself. The first Appellate Court had fallen in

grave error in holding that Ex.DW-1/6, the sale deed had

been proved through a defence witness. Attention has been

drawn to the said document. It is pointed out that Ex.DW-1/6

does not bear the signature of the presiding officer;

moreover in the entire version of DW-1, she has nowhere

proved this document.

9. These arguments have been countered by the learned

counsel for the respondent. It is submitted that there is no

fault in the findings in the impugned judgment. The plaintiff

was not the owner; the title had vested with the government

after the award had been passed. The documents Ex.DW-1/2

to Ex.DW-1/4 had been attested by the sons-in-law of the

plaintiff and even in the replication filed by the plaintiff this

has not been denied; it is not the case of the plaintiff that the

said attesting witnesses were not her sons-in-law. The first

Appellate Court had correctly protected the possession of the

defendants under Section 53A of the Transfer of Property.

The judgment called for no interference.

10. Perusal of the record shows that the Award no.2114

dated 27.6.1968 is on record. This is a duly attested

document having been attested on 10.9.1987 bearing the

stamp of the office of the Deputy Commissioner, Delhi. This

Award shows that the property in dispute has since been

acquired by the government. The name of the claimants who

had demanded compensation in lieu of this acquisition has

also been detailed therein. The name of Amar Nath, the

husband of the plaintiff finds mention at serial no.56. Being

an attested copy/certified copy of the original bearing the

stamp of the Deputy Commissioner this document falls in the

category of a public document under Section 74 of the Indian

Evidence Act and under Section 79 of the said Act a

presumption arises about the genuineness of such a certified

copy of the said document. The application fee to obtain this

certified copy from the office of the Deputy Commissioner

was paid by Sudershan Biswas i.e. defendant no.2, the

husband of defendant no.1. He had paid a fee of Rs.10/- to

obtain 14 pages of this document. This has been certified on

the last page of the document. This document has to be read

in evidence.

11. By virtue of this document, the disputed land stood

acquired on 27.6.1968 and the husband of the plaintiff Amar

Nath who was the original owner stood divested of his title.

Record also shows that Amar Nath had also applied for

compensation at Rs.10/- per sq. yards for the land and

Rs.1500/- for the leveling meaning thereby that at that point

of time there was no super structure. Compensation was

allowed with the interest @ Rs. 6% per annum. This is

evident from the recitals in the Award. As such once the

predecessor of the plaintiff had lost his title to the suit

property, in the year 1968 when the award was passed, the

question of the plaintiff claiming ownership of the suit

property thereafter did not arise. The judgment of M/s

Godrej and Boyce (supra) does not help the appellant. In the

said case, it was held that a mere notification under Section 4

or 9 or a declaration under Section 6 of the Land Acquisition

Act would not pass title from the erstwhile owner to the

government. In the instant case the Award had admittedly

been passed; name of Amar Nath, husband of the plaintiff

found mention therein as an awardee of the compensation.

12. Defendants have pleaded that the plaintiff was fully

aware that the land in dispute had been acquired by the

aforenoted Award yet in spite of her no title to the suit

property she had illegally and unauthorisedly taken a

consideration of Rs.3500/- from defendant no.1 and executed

an agreement to sell, power of attorney, will and receipt for

a sum of Rs.3500/- wherein the plaintiff had represented

herself to be the absolute owner of the suit property; she had

cheated defendant no.1 upon which the defendant no.1 had

reserved her right to take appropriate action. This was the

defence of the defendants. Further defence of the defendants

was that they were in possession of the suit property since

the year 1975; thereafter on 22.8.1979 the aforenoted

documents of title i.e. Ex.DW-1/2 to Ex.DW-1/4 had been

executed by the plaintiff in favour of the defendants. Before

the Trial Judge, to prove Ex.DW-1/2 to Ex.DW-1/4, DW-1, the

defendant herself and DW-2, an attesting witness to these

documents namely M.C.Roy had come into witness box. He

had testified that the defendants Guari Biswas and her

husband Sudershan Biswas were living in the suit property

since the last about 30 years. The land had been acquired by

an Award no.2114 in the year 1968 and compensation had

been paid to the landlord; further that a sum of Rs.3500/- had

been paid by defendants to the plaintiff and in lieu of which

an agreement to sell, money receipt and a will had been

executed by the plaintiff in favour of defendant no.1. The

aforenoted documents were signed by the plaintiff in his

presence as also in the presence of Suresh Kumar and

T.R.Sharma, both sons-in-law of the plaintiff. In the

replication filed by the plaintiff there has been no denial that

Suresh Kumar and T.R.Sharma whose signatures appeared

on Ex.DW-1/2 to Ex.DW-1/4 had not signed these documents

or the said persons are not her sons-in-law. Execution of

these documents had stood proved. These were clear

findings of fact by first Appellate Court who had placed

reliance upon these documents holding the same to be duly

executed. The Trial Court had also, in fact, not discarded

these documents; finding being that since no sale deed had

been executed in favour of the defendant, the defendant did

not have a title on the basis of these documents alone.

13. These documents Ex.DW-1/2 to Ex. DW-1/4 have given

adequate protection to the defendant under Section 53A of

the Transfer of Property Act. This provision is available to

such a defendant as a defense to protect his possession. It

imposes a statutory bar on the transferor/plaintiff who seeks

to enforce any right in lieu of the suit property. Apart from

Ex. DW-1/2 to Ex.DW-1/4 the Court had also relied upon the

house tax receipt Ex.DW-1/5 evidencing payment of house

tax by the defendant of the suit property in the year 1977.

The contention of the counsel for the appellant that this

document does not depict the correct number of the property

is a misplaced argument. Perusal of Ex.DW-1/5 shows that

Guari Biswas had paid house tax to the MCD on 21.12.1977

of Rs.75.60 for property RZ-61A/18, Vashist Park which is the

house number. Ex.DW-1/2 the agreement to sell between the

plaintiff and Guari Biswas clearly states that Gauri Biswas is

a resident of RZ-61/A/18, Vashist Park and she has paid a

consideration of Rs.3500/- for 133 sq. yards of land located in

plot No.A-69,70. There is no discrepancy; plots were

numbered A-69/70; house number for which defendant had

tendered the house tax is RZ-61/A/18.

Submission of the learned counsel for the appellant

that the finding of the first Appellate Court that Ex.DW-1/6

had been proved by the defendants is a misreading is borne

out from the Record. This document has not in fact been

proved in the version of any witness. It has however been

filed by the defendant as is evident from his list of documents

filed before the Trial Court on 10.9.1987. Be that as it may,

even if this document had not been proved nevertheless this

document is an undisputed document; it is the sale deed of

the aforenoted suit property whereby the vendor Rishal

Singh had sold this property to Amar Nath, the husband of

the plaintiff on 07.2.1967. The claim of the plaintiff is in fact

based on this document itself. As such even if this

submission has been wrongly noted it does not affect the

otherwise well reasoned order.

14. The judgments relied upon by the learned counsel for

the appellant reported in the case of Pali Ram, Laxmi Bai,

Smt. Hamida and O Bharathan (supra) are inapplicable to the

facts of the instant case. The judgment in Pali Ram, in fact,

clearly states that under Section 73 of the Evidence Act there

is no legal bar on a Judge examining the questioned

document himself. It is also not the case of the appellant that

the scrutiny of the documents by the presiding officer was

the only evidence before the Court to draw a conclusion that

the said documents were genuine; Ex.DW-1/2 to Ex.DW-1/4

had been proved by cogent oral evidence. The attesting

witness of the said document M.C.Roy had come into the

witness box to testify that it was in his presence that the said

documents had been executed.

15. In view of the aforenoted discussion, the substantial

questions of law are answered as follows:

(i) The disputed land had been acquired by the government

vide Award No.2114 dated 27.6.1968. The acquisition

proceedings stood complete by the passing of the Award.

Certified copy of the said document has been placed on

record and the same has to be read in evidence. The

husband of the plaintiff had been awarded compensation; he

stood divested of his title; plaintiff claiming through her

husband also has no legal title.

(ii) Plaintiff mis-represented that she is the owner of the

suit property. She had vide valid documents of transfer

Ex.DW-1/2 to Ex.DW-1/4 dated 22.8.1979 taken a

consideration of Rs.3500/- and transferred the suit property

in favour of the defendants who were in continuous physical

possession even prior thereto i.e. since the year 1975. They

were adequately protected under the doctrine of part

performance as contained in Section 53A of the Transfer of

Property Act.

16. Appeal has no merit. The appeal as also the pending

application is dismissed.

INDERMEET KAUR, J.

AUGUST 13, 2010 nandan