Ramesh Mohan Mittal vs Suresh Kumar Arora & Anr.
2010 Latest Caselaw 3527 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment : 29th July, 2010

+                         RSA No.74/2006


RAMESH MOHAN MITTAL           ...........Appellant
           Through: Mr.R.K.Shukla, Advocate.

                   Versus

SURESH KUMAR ARORA & ANR.      ..........Respondents

Through: Mr.Girdhar Govind and Ms.Noorun Nahar Firdoshi for R-1.

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.(Oral)

1. This second appeal has been directed against the impugned

judgment dated 29.9.2005 wherein the judgment and decree of

the Trial court dated 7.7.2004 had been confirmed. Vide

judgment dated 7.7.2004, the Trial Judge had dismissed the suit of

the appellant/plaintiff namely Ramesh Mohan Mittal which was a

suit for possession and mesne profits. The first Appellate Court

had endorsed this finding.

2. Present suit has been filed by the plaintiff seeking

possession of a plot of 1500 sq. yards land measuring 60' x 225'

forming a part of Khasra No.35/1 situated in the revenue estate of

village Baprola. The Trial Judge on the pleadings of the parties

had framed four issues. Two witnesses on behalf of the plaintiff

and one witness on behalf of the defendant had been examined.

While disposing of issue nos.2 and 3, the Court had held that the

identity of the suit property on which possession had been claimed

by the plaintiff has not been established by him. The layout plan

Ex.PX had mentioned the name of the colony as Nitin Enclave but

the site plan proved through the version of PW-1 Ex.PW.1/A did

not mention Nitin Enclave at all; it related to the revenue estate of

village Baprola. Sale deed Ex.PW-2/1 relied upon by the plaintiff

was also related to property situated in Village Baprola.

3. Further the version of PW-1, the draftsman, who had proved

Ex.PW-1/A was not relied upon as even as per his own admission

his knowledge of the case had been based upon instructions given

to him by the plaintiff; no other independent verification has been

done by him. Testimony of PW-2, the plaintiff himself was also

found to be suspect. Identity of the suit property i.e. the correct

description not having been established by the plaintiff suit was

dismissed.

4. On 29.5.2005, the first Appellate Court dismissed the

appeal. Relevant findings are as under:-

"The grudge of the appellant is that the defendant has tress- passed into his land which was purchased by plaintiff/appellant situated in the Revenue Estate of Village Baprola. The evidence on the other hand is shaky inasmuch as there is no reference or village Baprola in the lay out plan. The lay out plan was prepared and copy of the same was given to the appellant by the colonizer at the time of purchase of the suit land. Incidentally, the colony lay out of which has been shown as Nitin Enclave, whereas the appellant/plaintiff has no-where in the plaint uttered a word about Nitin Enclave. As it was the responsibility of the plaintiff/appellant to show that part piece of land which was purchased by him was encroachment by the defendant and he is entitled to have it back thus on this count the appellant/plaintiff has failed and could not identify and connect the defendant with the alleged tress-pass in his land. The counsel for the appellant has vehemently argued that plaintiff/appellant is able to pin point the position through the

testimony of Bhoop Singh PW1. However, in the cross examination that said Bhoop Singh Sharma has not been able to say that he was aware of Khasra number, location etc. He had stated that it was plaintiff/appellant who informed him about the details and he had not confirmed it from any other source, nor checked it from the Revenue records etc. Therefore, his knowledge is based upon the information provided to him by the plaintiff/appellant. As such his testimony is of no consequence rather the testimony of the plaintiff/appellant Ramesh Mohan Mittal becomes vital. Here, the plaintiff/appellant has faulted on many occasions. His testimony has collapsed during the cross examination for he has stated that the land was purchased by him through Colonizer but did not verify the ownership of the land from the Revenue records. He has categorically stated that he is not aware of the fact as to whether the vendor is the owner of the suit property or not. He has admitted this fact that in the lay out plan there is not mention of village Baprola. Again, he has also fumbled on the point as to how he came to know about the encroachment by the defendant and he had no answer cogent enough as to why no one visited the suit land for such a long time when he has three sons and all are residing in Delhi. The land purchased was an agricultural piece of land. In these circumstances, the plaintiff/appellant is under obligation to verify the status of the land through Revenue record or from other sources."

5. Before this Court, it has been urged that both the Courts

below had dismissed the suit of the plaintiff summarily without

considering the fact that it was admitted by the defendant himself

that the part of the suit property i.e.500 sq. yards is situated in

Khasra no.35/1 at village Baprola. Attention has been drawn to

the application filed by the defendant seeking demarcation of the

land through Tehsildar (page 68 of the paper book). In paras 2

and 5 of the said application, it has been averred as follows:

"2. That the applicant/defendant filed a detailed written statement wherein he stated that he had never been in possession of any plot measuring 1500 sq. yards (one bigha and 10 biswas) forming part of Khasra no.35/1 situated in the Revenue Estate of Baprola, Delhi- 41 and also gave an undertaking before this Hon'ble Court that he undertakes not to part with possession of any land measuring

1500 sq. yds. forming part of Khasra no.35/1 situated in the Revenue Estate of Baprola.

5. That the site plan as supplied by the plaintiff with the plaint stating his plot in Vill. Baprola out of Khasra No.35/1 resembles with the plot of the applicant/defendant which was situated in the Vill.Tilangpur Kotla and which was out of Khasra no.7/21/1 and 7/21/2."

Attention has been drawn to another application filed by the

subsequent transferee of defendant no.1 seeking a prayer for his

transposition under Order 1 Rule 10 of the CPC (page 76 of the

paper book). Para 6 of the application inter alia reads as follows:

"That after the aforesaid sale, the applicant remains the owner of the land measuring 500 sq. yards comprising of Khasra no.35/1, situated at Village Baprola (Bapdola), Delhi and his interest is involved in the present suit as per the information received by the applicant from the defendant no.1 Shri Suresh Kumar Arora, on telephone yesterday. Hence the applicant wants to participate in the present proceedings to watch and safeguard his interest over the aforesaid land measuring 500 sq. yards, as stated above."

It is submitted that these contentions of the defendant show

that the defendant through his transfree had admitted that 500 sq.

yards of the suit property is situated in Khasra No.35/1 and as

such the finding of the Courts below that the suit property had not

been properly identified is a perversity which has raised a

substantial question of law in the present proceedings.

6. Learned counsel for the appellant has placed reliance upon

AIR 1970 Kerala 310 Thiruvanchan Sankaran Vs. Kunjipillai

Amma Gouri Amma & Ors. to support his submission that in terms

of Section 114 of the Indian Evidence Act there is a presumption

that possession goes with the title. It is submitted that sale deed

Ex.PW-2/1 had been proved by the plaintiff evidencing his title;

possession necessarily follows.

7. These arguments have been countered by the learned

counsel for the respondent. It is stated that no interference is

called for in the judgment of the two Courts below; the

appellant/plaintiff has to stand on his own legs; the deficiencies, if

any, in the defence of the defendant cannot substitute the legal

requirement of the onus of proof to be discharged by the plaintiff.

8. Perusal of the record shows that there is no fault in the

findings of the Courts below. Suit had been filed qua 1 Bigha and

10 Biswas of land situated in part of Khasra No.35/1, Village

Baprola. In the written statement it had been stated by the

defendant that he was never in possession of land measuring 1500

sq. yards in Khasra No.35/1; his case was that he had a plot of

land measuring 1 Bigha 10 Biswas out of Khasra No.7/21/2 and

7/21/1 in the revenue estate of Village Tilangpur Kotla, Delhi and a

part of it in Village Baprola. In view of the defence of the

defendant issue no.2 had been framed which inter alia reads as

follows:

"Whether the defendant no.1 has trespassed into the suit land and raised super structure thereon? OPP"

This issue had been decided along with issue no.1. The

Court had examined the layout plan Ex.PX-1 as also the

corresponding documents i.e. sale deed Ex.PW-2/1 and the site

plan Ex.PW-1/A. Layout plan did not mention the revenue estate

of Village Baprola; the name of the colony mentioned was Nitin

Enclave. The documents annexed along with the plaint i.e. the

sale deed Ex. PW-2/A, site plan Ex. PW-1/A had mentioned the suit

property as located in Village Baprola. Identity of the suit

property was clearly in doubt. Both the Courts below had also

gone into the oral as well as documentary evidence produced

before them i.e. the testimony of PW-1, the draftsman, who had

categorically admitted that he had prepared the site plan only on

the information given to him by the plaintiff with no other

independent input. Version of PW-2, the plaintiff, was also not

relied upon; the documents spoke against him. Suit of the plaintiff

could have been decreed only after the plaintiff had been able to

show that the portion of the land owned by him had been

encroached upon by the defendant. Onus of this had not been

discharged by the plaintiff. He could not connect the defendant

with the identity of the suit property which he claimed that the

defendant had illegally usurped.

9. In these circumstances, the judgment relied upon by the

learned counsel for the appellant does not come to his aid.

10. These are fact findings given by the two Courts below on the

basis of the oral and documentary evidence adduced before them.

This is not a third fact finding court. Section 100 of the CPC is

couched in mandatory terms. It casts a duty upon the court not to

admit appeals which do not involve a substantial question of law;

for such appeals are not provided for. The questions of law

phrased in the memo of appeal finds mention on page 11; they all

relate to findings of facts i.e. whether the oral or documentary

evidence adduced by the plaintiff was not sufficient, the non-

consideration of the averments made by the applicant in the

application under Order 1 Rule 10 CPC. At this stage, it is also

relevant to point out that this application under Order 1 Rule 10

CPC had been filed by a proposed successor-in-interest of

defendant no.1 seeking to be impleaded in place of defendant

no.1. Application of this applicant had been dismissed. Even

presuming that these admissions were made by such an applicant,

they could not in any manner bind the defendant. The Courts

below have rightly held that it was for the plaintiff to establish his

case but he had failed to do so.

11. No question of law much less any substantial question has

arisen in this appeal. It is dismissed. Records be returned. File

be consigned to record room.

INDERMEET KAUR, J.

JULY 29, 2010 nandan