Krishan Lal Dutta vs Ishwer Chand
2010 Latest Caselaw 5842 Del

 R-21
 *           IN THE HIGH COURT OF DELHI AT NEW DELHI
 +                      RFA No. 88/1998
 %                                               22nd December, 2010


 KRISHAN LAL DUTTA                                       ...... Appellant
                                    Through:     Mr. S.K. Dubey,
                                                 Mr. Abhinav Rao,
                                                 Advocates
             VERSUS

 ISHWER CHAND                                        .... Respondent

                                    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. By the present first appeal under Section 96 of the

Code of Civil Procedure, 1908, the appellant impugns the

judgment and decree dated 24.9.1997 whereby the suit for

possession filed by the appellant/plaintiff was dismissed.

2. The facts of the case are that the appellant/plaintiff

claimed himself to have become owner of the plot No. VC-12,

admeasuring 220 sq.yds. situated in Varinder Nagar, New RFA No. 88/1998 Page 1 Delhi by means of registered sale deed dated 22.9.1967.

The plot was purchased from one Sh. Ram Gopal, a

Coloniser. It was alleged that the respondent defendant

forcibly took possession of the property in April 1978 and

therefore the suit for possession was filed. After completion

of pleadings, the trial court framed Issues and Issue Nos. 1

to 3 are relevant and the same read as under:-

"1. Whether the plaintiff is the owner of the suit plot? OPP

2. Whether the plaintiff is entitled to a decree of possession of the suit plot? OPP

3. Whether the suit is not maintainable in view of the preliminary objections no.2 and 3 made in the written statement? OPD"

3. These Issues have been dealt with by the trial court

very exhaustively from paras 8 to 14 of the judgment. These

paras with which I wholly agree are reproduced hereunder:

"8. All these three issues are inter connected and so I proceed to decide them together. The case of the pltff. is that he is the owner of plot no.VC-12, Measuring 220 Sq. yds. situated in Varinder Nagar, New Delhi, forming part of kh.no.810 & he had purchased this plot from Ram Gopal by a registered sale deed which was registered on 22.9.67 in the office of the Sub Registrar, Kashmere Gate, Delhi.

The possession of the plot was also delivered to his

RFA No. 88/1998 Page 2 on the registration of the sale deed. In April, 78 the defendant forcibly and at the instance of the local police took possession of the plot by storing and dumping waste in the plot. On the other hand, the case of the defendant had been that he himself is neither owner nor in possession of the suit plot. He also had not taken possession of the same forcibly in April, 78 as is alleged by the defendant. His case is that the sale deed registered on 22.9.67 in favour of the plaintiff is a forged, fabricated and fake documents as Sh. Ram Gopal was even not the owner of the suit plot on 22.9.67 when he is alleged to have sold the suit plot to one Ram Lubhaya by registered sale deed dated 8.10.53. Further Shri Ram Lubhaya had sold the suit plot to Sh. Chatan Dass vide registered sale deed dated 1.12.55 and Sh. Chatan Dass further sold the suit property to the wife of the defendant namely Smt. Devi Bai for Rs.22000/- by registered sale deed dated 9.2.78. The physical possession of the suit property was given to Smt. Devi Bai by Sh. Chetan Dass when the same was sold to her. As Sh. Ram Gopal was neither the owner nor in possession of the suit property in the year 1967, there could be no question of his having sold and delivered possession of the suit property to the plaintiff. As Smt. Devi Bai who is owner in possession of the suit property has not been impleaded in this case as a party by the plaintiff, the suit is bad for not joining the necessary and proper party.

9. As regards the evidence, the defendant examined his son Sh. Darshan Kumar Juneja as DW1 in this case. The defendant has executed power of attorney in favour of his son DW1 Sh. Darshan Kumar Juneja which is Ex.PW1/1. He has asserted that his mother Smt. Devi Bai purchased the suit property in the year 1978 for Rs.22000/- by

RFA No. 88/1998 Page 3 way of registration of sale deed, the certified copy of which is Ex.DW1/3. This document thus proves that Smt. Devi Bai wife of Sh. Ishwar Chand defendant has purchased the suit property on 30.1.78 from Shri Chetan Dass and the sale deed was registered with the sub-registrar, Delhi on 9-2- 1978. It is also mentioned in this sale deed that the vendor Sh. Chetan Dass was the exclusive owner of the suit property and he had also delivered vacant possession to Smt. Devi Bai at the spot.

10. Sh. Darshan Kumar Juneja DW1 has further asserted that the suit property has been subjected to property tax and the same is in the name of his mother Smt. Devi Bai and she has been paying the house tax ever since its purchase. The mutation of the suit property has also taken place in her name after the same was purchased by her.

11. It is also in the evidence of Sh. Darshan Kumar Juneja DW1 that the suit property was purchased by Sh.Chatan Dass from one Shri Ram Lubhaya in the year 1955 vide sale deed, the photo copy of which is Ex.PW1/4. He has asserted that Shri Chetan Dass remained in possession of the suit property from 1955 to 1978 till such time he executed the sale deed in favour of his mother. Shri Ram Lubhaya in turn had purchased the suit property earlier from Sh. Ram Gopal in 1953 vide sale deed, certified copy of which is DW-1/5 and the suit property remained in possession of Sh. Ram Lubhaya from 1953 to 1955 when the sale deed was made by him to Sh. Chetan Dass.

12. It is also in the evidence of Shri Darshan Kumar Juneja DW1 that Sh. Chetan Das had obtained sale permission from L&DO at the time of the sale of this property to his mother Smt. Devi Bai. The original sale permission document given

RFA No. 88/1998 Page 4 by the office of L&DO were brought by this witness to the Court and photo copy of these documents are Ex.DW1/6 and Ex.DW1/7. Thus Sh. Chetan Dass had sold the suit property after obtaining permission from L&DO.

Shri Darshan Lal Juneja has asserted that Shri Ram Gopal after the sale of the suit property by him to Ram Lubhaya in the year 1953 had lost all his rights and title in the suit property and as such he could not have sold the suit property to the plaintiff in the year 1967 vide sale deed Ex.PW1/1 as has been claimed by the plaintiff. There is force in the evidence brought on record by the defendant. As Sh. Ram Gopal from whom the plaintiff claims to have purchased the suit property in the year 1967 himself had no title to the same, how could he have sold the suit property to the plaintiff in 1967. The sale deed Ex.PW1/1 in favour of the plaintiff thus is not a valid sale deed. As Sh. Ram Gopal was not the owner of the suit property on 19.9.67, his claim in Ex.PW1/1 that he was the owner of the suit is on the face of it a false assertion. As Ram Gopal had no title to the suit property on 19.9.67 he could not have conveyed a good title to the plaintiff and as such the plaintiff can not be held to be the owner of the suit property by virtue of sale deed Ex.PW1/1. Though Smt. Devi Bai is the owner of the suit property but she has not been impleaded as a party by the plaintiff in this case. Smt. Devi Bai is certainly a necessary and proper party to the suit and the suit must be held to be bad for not joining a necessary party to the suit.

13. Though the plaintiff has pleaded that he remained in possession of the suit plot upto April, 1978 when the defendant forcibly and at the instance of the local police took possession of the same by storing and dumping waste into the plot but there is absolutely no satisfactory evidence on

RFA No. 88/1998 Page 5 record to come to that conclusion. As already pointed out, Smt. Devi Bai purchased the suit property vide registered sale deed on 30.1.78 and the sale deed was registered on 9.2.78 and the time of registration of the sale deed, she got possession of the suit property from the vendor Shri Chetan Dass who earlier was in possession of the suit property right from 1955 onwards when he (Chetan Dass) purchased the suit property from Ram Lubhaya vide sale deed Ex.DW1/4. Shri Krishan Lal the plaintiff has stated that he got the possession of the suit property on 19.9.67. However, there is absolutely no evidence on record to accept that assertion of the plaintiff. Plaintiff, Krishan Lal was asked if he lodged any report against the defendant when he allegedly took forcible possession of the suit property and to that he had to admit that he did not lodge any report. He even could not tell the exact date when the possession of the suit property was illegally taken by the defendant. There is absolutely no evidence on record to prove that the defendant trespasser into the suit plot in April, 78 or at any other time. The plaintiff in cross examination has also admitted that he himself had not seen the defendant taking forcible possession of the suit property. No notice was given by the plaintiff to the defendant that he had taken illegal possession of the property from him as has been admitted by the plaintiff in cross examination. No criminal case has been registered against the defendant nor any criminal complaint has been filed by plaintiff against the defendant for the alleged trespass as the also been admitted by him in cross examination. The plaintiff has also admitted that he did not lodge any complaint with the MCD with respect of the alleged trespass by the defendant. The plaintiff has admitted in cross examination that he is not in possession of the suit property. The

RFA No. 88/1998 Page 6 plaintiff has admitted that he was prosecuted alongwith Ram Gopal in case FIR 26/70, P.S. Tilak Nagar under section 420/120-B IPC and he was convicted and sentenced by the Metropolitan Magistrate, Delhi. However he was acquitted in appeal though he could not tell the exact date when he was acquitted by the appellant court. The plaintiff was given the suggestion that the deeds lying in the suit property belong to Smt. Devi Bai and not to her husband the defendant Ishwar Chand.

14. From the above discussed evidence, it is abundantly clear that the plaintiff has failed to prove that he is the owner of the suit property and is entitled to a decree of possession for the same. On the other hand, the defendant has been able to prove that the suit property belongs to his wife Smt. Devi Bai who is in possession of the same and she though is a necessary party to the suit has not been impleaded in this case by the plaintiff and as such the suit shall have to be held as bad for not joining Smt. Devi Bai a necessary party to the suit also. All these issues are decided accordingly against the plaintiff and in favour of the defendant."

From the above said findings and conclusions of the

trial court, it becomes clear the the property in question was

sold by the owner Mr. Ram Gopal firstly in favour of Sh. Ram

Lubhaya by a registered sale deed dated 08.10.1953, Sh.

Ram Lubhaya sold the suit property to Sh. Chetan Dass by

means of registered sale deed dated 1.12.1955 and Sh.

RFA No. 88/1998 Page 7 Chetan Dass thereafter sold the suit property to the wife of

respondent/defendant Smt. Devi Bai by registered sale deed

dated 09.02.1978. At the time when the property was sold

by Sh. Chetan Dass to the wife of respondent/defendant,

permission was duly taken from the L&DO. Further, in spite

of allegedly being dispossessed in April 1978, the appellant

did not file any Police complaint with regard to his

dispossession of the valuable suit property and which he

surely would have done if he was illegally dispossessed. The

various Title Deeds by a chain have been duly filed and

proved as Ex. DW-1/5 (from Sh. Ram Gopal to Sh. Ram

Lubhaya), Ex. PW-1/4 (from Sh. Ram Lubhaya to Sh. Chetan

Dass) and Ex. DW-1/3 (from Sh. Chetan Dass to the wife of

the respondent/defendant).

4. The findings of the trial court are therefore completely

in order and do not call for any interference by this Court

sitting in an appeal. It appears that the appellant was taken

for a ride by the Coloniser Sh. Ram Gopal and the remedy of

the appellant would therefore be against Sh. Ram Gopal and

RFA No. 88/1998 Page 8 not with respect to the suit property which through a chain

of Title Deeds presently vests with Smt. Devi Bai, wife of the

respondent/defendant.

5. Learned counsel for the appellant vehemently sought to

argue that it was only the son of Smt. Devi Bai, who

appeared as witness as her attorney and, therefore, such

evidence cannot be looked into in view of the case of the

Supreme Court reported as Janki Vashdeo Bhojwani &

Anr. vs. Indusind Bank Ltd. & Ors., (2005) 2 SCC 217.

The said judgment is not applicable in the facts of the

present case because as I have already narrated above the

instant case has been decided on the basis of the

documentary evidence and other evidences which stand

established. It is not general law that an Attorney can never

depose. In the facts of the present case therefore the

contention of the counsel for the appellant is not well

founded and is rejected. The second argument was that the

contents of the chain of the sale deed should have been

independently proved. I, for one, have failed even to

RFA No. 88/1998 Page 9 understand his argument because once Title Deeds being

registered Sale Deeds are duly proved and exhibited

showing the flow of ownership, it does not stand reason as to

what is the meaning of the argument that contents of the

documents being required to be proved.

6. In view of the above, I do not find any reason to

interfere with the impugned judgment and the decree. The

appeal is therefore dismissed leaving the parties to bear

their costs. The trial court record be sent back.

DECEMBER 22, 2010                         VALMIKI J. MEHTA,J
godara




RFA No. 88/1998                                         Page 10