Shri Chander Shekhar vs M/S Santosh Surana And Anr.
2010 Latest Caselaw 5657 Del

 *             IN THE HIGH COURT OF DELHI AT NEW DELHI
 +                       RFA No. 164/1997
 %                                                13th December, 2010
 SHRI CHANDER SHEKHAR                               ...... Appellant

                                     Through:     Mr. Vinay Kr. Garg and
                                                  Mr. Fazal Ahmed and
                                                  Ms. Namrata Singh,
                                                  Advocates.
                         VERSUS

 M/S SANTOSH SURANA AND ANR.                            .... Respondents

                                     Through:     None.
 CORAM:
 HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

2. To be referred to the Reporter or not?

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

VALMIKI J. MEHTA, J (ORAL)

1. The present appeal under Section 96 of the Code of Civil

Procedure, 1908 (CPC) impugns the judgment and decree dated

31.3.1997 passed by the trial court dismissing the suit of the

plaintiff/appellant for declaration that the articles which were lying with

the police were owned by the appellant/plaintiff.

2. The plaintiff filed a suit for declaration claiming ownership of the

articles which were seized/recovered from his premises in connection

with an action pursuant to an FIR and when the certain stated

accomplices of the plaintiff made statements to the police with respect

to the stolen articles lying at the premises of the plaintiff.

3. The criminal prosecution/case against the plaintiff, who was an

accused not only in that case, but also in various other cases, was

dismissed. In that case, the plaintiff moved an application for recovery

of the articles, however, ultimately when the matter reached this court,

it was ordered that the plaintiff will have to file a civil suit to establish

his ownership in articles and hence the subject suit.

4. In the plaint, the plaintiff made the following averments in para 5

with respect to ownership of articles.

"5. That the above articles exclusively belonged to the plaintiff and to nobody else and they have been received by the plaintiff in the matter of letter of administration of the locker of deceased Sukh Devi wife of Shri Ram Chander in the Union Bank of Bombay which was decided by the District Judge at Delhi."

A reference to this paragraph shows that the articles were said to

belong to the plaintiff because they were the articles which were

received by the plaintiff/appellant in the letter of administration of the

estate of the deceased one Smt. Sukh Devi and who owned a Bank

Locker where these articles were there.

5. The trial court after completion of pleadings framed issues

on 27.9.1983 and the relevant issue in this regard is issue no.4, which

reads as under:-

"4. Whether the plaintiff is the owner of the property in dispute?"

This issue has been dealt with by the trial court from paras 15 to

17 of the judgment. The discussion in this regard to the respective

cases, the evidence led etc.is detailed and exhaustive. The said paras

15 to 17 reads as under:-

"15. As above said the present plaintiff had exhausted all the forums on the criminal side. The learned M.M. had decided that the case property be returned to the rightful owner. In revision before the learned Addl. Sessions Judge was decided that the parties should get ownership decided through civil court. Even in further revision before the Hon‟ble High Court of Delhi it was directed that the present plaintiff can file civil suit for declaration of ownership.

What has been done before the criminal courts, the same has been repeated before the civil courts by the present plaintiff. Nothing new has been brought on record, no new grounds stated. What was the oral version of the plaintiff before the criminal courts, the same is the version before the civil courts. If that was the case, criminal courts could have returned the case property to him. Before civil courts he has to establish his ownership by satisfactory and cogent evidence.

When the case was still pending for trial, the present plaintiff had filed an application dt. 25.5.1978 Ex.D.2 for return of the case property delivered to Smt. Pritibha Kaushik on superdari. He claimed that the articles belonged to him but no details were given. At that time he had made a prayer that spurdari of articles be cancelled in the name of deft. no.2. The case was decided on 7.4.1979 on the ground that public witnesses were declared hostile in that case. The evidence of the formal witnesses was not relied upon.

In the statement made by him under section 313 Cr.P.C., before the learned trial court, the plaintiff has only stated about the articles recovered from him in the said theft case when the question was that by the learned trial court to him as under:-

Q "It is in evidence against you that articles Ex.P.2 to Ex.P.3 were identified by Mrs. Pritibha Kaushik as her property. What have you to say?

                    A.     The question does not relate to him.
               The last question was as under:-

                    Q.     What else to you want to say?

                     A.    I am innocent. I have been falsely
               implicated in this case.

At that time also he did not claim the articles alleging that these articles belonged to him After acquittal he filed the application dt. 26.4.1979, he only mentioned that case property i.e. silver boxes 2, diamond rings 2, loose diamonds and other articles belonged to him. that he has got proof of owner ship of thee articles belonging to him but no details were given.

In para no.4 of the plaint the plaintiff has taken the stand that all these articles were received by him under the Letter of Administration of the locker of deceased Sukhdevi w/o Shri Ram Chander from the Union Bank of Bombay. As PW1 the plaintiff himself has admitted in cross-examination that inventory of the locker was prepared with regard to the property now locker under Ex.P.2. Where is that inventory, no proof and no list filed, no witness summoned from the bank. So it cannot be known in the absence of any inventory under Ex.P.2 whether these articles were received by the present plaintiff under Ex.P.2 by operating the said locker. There is no definite proof. Rather no such stand taken by him earlier that these articles were received by him from the locker Ex.P.2. No such case before the learned trial court, no such case before the learned Addl. Sessions Judge and no such case before the Hon‟ble High Court of Delhi.

16. In this behalf reference to the judgment of the Hon‟ble High Court of Delhi dt. 25.11.1980 is necessary which is reproduced as under:-

"The learned Addl. Sessions Judge was right in her findings that the accused did not at the trial claim the property to be his, In these

circumstances, the only reasonable conclusion that the possible was that Mrs. Surana was the rightful owner of the property but only mentions two silver boxes, two diamond rings, loose diamonds, an other articles. Certainly, he did not know what those „other articles‟ were and he could not claim restoration of the property which was recovered from the possession of the other co-accused. The disclosure statements and the recovery memos can be looked into for deciding the ownership and for rejecting the claim of the petitioner; as we weld in Dhanraj Baldeokishan Vs. The State A.I.R. 1965 Raj. 238".

In view of the above said, the present plaintiff after having exhausted all the forums available to him, he has not succeeded to establish his case before this court also. No documents were filed with regard to the alleged articles.

17. The learned counsel for the plaintiff had argued that the articles were recovered from the plaintiff in the eyes of law the articles be returned to him after acquittal of the plaintiff from the said criminal case. If that is so Smt. Santosh Surana has made statement that these were stolen from her house and identified the articles at the police station, then these articles should be returned to Smt. Santosh Surana. If the stolen articles were to be given to the accused, then that could have been done by the learned M.M. and by the learned Addl. Sessions Judge, New Delhi. It could have been done by the Hon‟ble High Court of Delhi also and there was no need to give any direction to establish fact of ownership before the civil court. In my view, the plaintiff has miserably failed to establish his ownership of the articles. So the issue is decided against the plaintiff and in favour of the defts."

6. This court sitting as an appellate court is not entitled to

interfere with the findings and conclusions of the trial court, unless the

findings and conclusions are wholly illegal or perverse. Merely because

another view is possible from the facts and circumstances, this court is

not entitled to interfere in exercise of its powers under Section 96 CPC.

A reference to paras 15 to 17 shows that the trial court has specifically

referred to the fact that the plaintiff/appellant failed to file the

inventory of the goods prepared in the succession case and which was

the basis of the claim of the ownership of the articles in para 5 of the

plaint reproduced above. The trial court has also noted that the

criminal prosecution/case against the appellant was dismissed only on

a technical ground because the prosecution failed to produce the

necessary material on record. It need not be gain said that in a civil

case, onus of proof lies on the plaintiff who approaches the court. The

appellant/plaintiff approached the court with a specific case with

respect to the claim of ownership of articles and which was not proved

before the trial court and hence disbelieved.

7. Before this court, the learned counsel for the plaintiff very

strenuously relied upon Section 110 of the Evidence Act, 1872 to

contend that once the articles were found to be in possession of the

plaintiff, they are presumed to be owned by the plaintiff and therefore,

the suit ought to have been decreed. Firstly, this case which is now

been argued was not laid out by the appellant/plaintiff in the trial court

and in fact no arguments were addressed in this regard. Even in the

grounds of appeal, no such ground is found. Also, the presumption

under Section 110 of the Evidence Act is only a rebuttable presumption

and therefore, it is necessary for the plaintiffs to have specifically

pleaded the same so that an opportunity could have been given to the

respondent/defendant to meet the same. All of the aforesaid is

conspicuously absent in the facts of the present case and accordingly

no arguments can be advanced by the plaintiff on the basis of the 110

of the Evidence Act.

8. In view of the above, I do not find any error much less a

grave error, to arrive at a finding that the impugned judgment suffers

from any illegality or perversity. The appeal is therefore dismissed,

leaving the parties to bear their own costs.

Trial court record be sent back.

DECEMBER 13, 2010/ib VALMIKI J. MEHTA,J