Pt.Ganga Prasad Sharma ... vs Dr.Beni Prasad Sharma (Since ...
2010 Latest Caselaw 4682 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Judgment Reserved on: 30.09.2010
                  Judgment Delivered on: 05.10.2010

+                        RSA No.116/1982

PT.GANGA PRASAD SHARMA (Deceased)
THROUGH L.Rs.                           ...........Appellant
              Through: Mr.Jose Chiramel and Mr. Ramesh
                       Kumar, Advocates.

                   Versus


DR.BENI PRASAD SHARMA
(SINCE DECEASED) THROUGH L.Rs.         ..........Respondent
              Through: Mr.Seeraj Bagga, Advocate.

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. This second appeal has impugned the judgment and decree

dated 26.3.1982 passed by the First Appellate Court which had

reversed the judgment and decree of the Trial Judge dated

4.12.1979 vide which the suit of the plaintiff namely Beni Prasad

Sharma was dismissed.

2. Briefly stated the factual matrix of the case is as follows;

i. The respondent/plaintiff had filed a suit for possession

against the defendant; he claims to be the owner of the plot

of a land measuring 300 sq. yard i.e. 6 biswas, 9‟ x 27½‟

comprising in Khasra No.390 Min Khewat No.44, Khata

No.171, situated at Saleempur (Madipur) presently known as

Rishi Nagar. He had purchased this plot of land from its

owner Khubi Ram vide a registered sale deed dated

21.9.1951 at consideration of Rs.300/-. Possession of the

land had been taken over by the plaintiff. Possession

remained with the plaintiff. The boundary of the plot was as

under:

      i. East      -         Gali 12‟
      ii. West     -         Another plot of vendor Khubi
      iii. North   -         Kacha Road, Mangolpuri which is now
                             pakka
      iv. South    -         Factory of Harband Lal Gulati

In January 1969 defendant took illegal and forcible

possession of 186.5 sq. yards of the land owned by the

plaintiff and constructed a house on a portion of it. In spite

of oral requests of the plaintiff, the defendant did not vacate

the property. Defendant has no right or title to remain the

suit land. Suit for possession was accordingly filed.

ii. Defendant contested the suit. It was stated that the suit

was not properly valued for court fee; it is barred by

limitation having been filed after 19 years. On merits, it was

stated that the plaintiff had purchased the plot of land

measuring 200 sq. yd. under his possession at a

consideration of Rs.700/- in Khasra No.390 from Khubi Ram

vide a registered sale deed dated 7.6.1952. He is in

continuous possession since that date. Defendant has never

been in possession of the land which is owned by the

plaintiff. Defendant was transferred to Kashmir in 1962. On

his re-transfer to Delhi in 1966 he had got a part of his house

constructed. The land in his possession is owned by him.

iii. Replication was filed reiterating the averments made in

the plaint and denying the case as set up by the defendant.

iv. On 9.6.1971, six issues were framed which on an

application under Order 14 Rule 5 of the Code of Civil

Procedure (hereinafter referred to as „the Code‟) were recast

on 11.2.1976 they inter alia read as follows:

1. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP

2. Whether the plaintiff is owner of the disputed land shown yellow in the plan marked „A‟? OPP

3. Whether the plaintiff was in possession of the disputed plot till January, 1969? OPP

4. Whether the suit is within time? OPP

5. Relief.

v. Trial judge compared the sale deeds of the plaintiff and the

defendant i.e. the registered sale deed Ex.PW-1/1 and the

registered sale deed Ex.DW-3/1. The boundaries were found

to be not common. Site plan filed by the plaintiff Ex.PW-4/1

and Ex.PW-4/2 had also been scrutinized. It was held that

the boundaries of the Ex.PW-1/1 and Ex.DW-3/1 did not tally;

the plaintiff was the owner of the plot which he had

purchased vide Ex.PW-1/1 but he had failed to establish that

the property in possession of the defendant was a part of his

plot of land. Suit of the plaintiff was dismissed on this count.

It was further held that the suit is barred by limitation having

been filed 12 years after the date when the defendant had

taken illegal possession of the same.

vi. The First Appellate Court reversed the findings of the

Trial Judge. Before passing the judgment, the First Appellate

Court had made a spot inspection of the suit property. This

was on 23.3.1982. The said inspection note reads as follows:

" I today inspected the spot in this case in the presence of Counsel for the parties and prepared the site plan alongwith the boundaries of house in dispute which is duly signed by the parties and their counsels in token of its

correctness as it exists on the spot.

2. On the east of the house in dispute is a gali which goes deep into the south. On the north of the house is Mangolpur Road. On the west of the house in dispute is house of Shri Vishan Narain Marwaha and immediately after the house of Shri Vishan Narain Marwaha towards west is a row of other houses. Towards south of house in dispute is a gali and immediately to the south of the gali is a row of houses. No other thing worth noting was witnessed on the spot. A copy of this inspection note be given to the parties for their reference."

vii. The First Appellate Court after the scrutiny of the

documentary evidence i.e. the registered sale deed of the

plaintiff Ex.PW-1/1 read along with site plan proved by him

Ex.PW-4/1 and Ex.PW-4/2 when compared to the sale deed

Ex.DW-3/1 proved by the defendant, held that the boundaries

of the two properties are the same; plaintiff had established

that the property in possession of the defendant was the

property which the plaintiff had purchased vide Ex.PW-1/1

thereby decreeing the suit of the plaintiff.

3. This is a second appeal. The following substantial questions

of law formulated by this court have to be answered. They inter

alia reads as follows:

"1. What is the interpretation of boundaries of the properties forming subject matter of the two sale deeds in the suit namely PW-1/1and DW-3/1?

2. Whether the finding of the finding of the first appellate court, reversing the finding of the trial court thereby holding that the suit of the plaintiff/respondent was within limitation was a perverse finding? it so, its effect?"

4. On behalf of the appellant, it has been urged that the

impugned judgment is illegal and arbitrary. The document of title

of the plaintiff Ex.PW-1/1 had been misread and misconstrued; it

was for a plot of land measuring 300 sq. yards, boundaries of which

were different and distinct from the boundaries and plot of land

which had been purchased independently by the defendant vide

Ex.DW-3/1 which was for a plot of land measuring 200 sq. yards. It

is submitted that even as per the case of the plaintiff, the

defendant had illegally usurped 186.5 sq. yards of the plot; the

land in possession of the defendant was 200 sq. yards. Attention

has been drawn to the boundaries as depicted in Ex.PW-1/1,

EX.DW-3/1 as also the spot inspection report conducted by the

First Appellate Court proceedings of which are dated 23.3.1982 to

substantiate these arguments.

5. Arguments have been countered by the learned counsel for

the defendant. At the outset it is pointed out that vide order of this

Court dated 26.5.1982 the appellant had been directed to furnish a

bank guarantee which has not been furnished till date as such he

cannot be heard. It is further pointed out that the first substantial

question of law as formulated by this Court is pure finding of fact;

it cannot be gone into by the Second Appeal Court. For this

proposition reliance has been placed upon a judgment of Supreme

Court cited as (1999) 3 SCC 722 Kondiba Dagadu Kadam Vs.

Savitribai Sopan Gujar & Ors. The second substantial question of

law formulated by this Court is also on the aspect of limitation

which is again a finding of fact and cannot be interfered with. For

this proposition reliance has been placed upon a judgment of

Supreme Court cited as AIR 1986 SC 1509 Dudh Nath Pandey Vs.

Suresh Chandra Bhattasali. The stand of the appellant/defendant

is not clear; in the written statement he has taken a plea of title by

ownership; yet a contrary plea of adverse possession has also been

set up. It is pointed out that the defendant had illegally usurped a

portion of the property of the plaintiff and had super imposed

himself upon this plot of land; obviously three sides of the

boundaries would be the same and the difference would only be on

one side; the impugned judgment had correctly interpreted this

and had held that a comparison of Ex.PW-1/1 and Ex.DW-3/1

evidenced no discrepancy. It had been established that the

defendant was in occupation of the same plot of land which had

been sold to the plaintiff vide Ex.PW-1/1; he having purchased this

property prior in time, his title stood validated. DW-3, the

defendant, Ganga Prasad had himself stated that he had raised a

boundary wall on the plot for the first time in 1964, reliance upon

this version, on this score calls for no interference. Suit was also

held to be within limitation.

6. The substantial questions of law have been aforenoted. The

first substantial question of law had been framed on 26.4.1982.

Almost three decades have gone by; that it was wrongly formulated

has never been agitated till now. The second substantial question

of law was formulated on 19.7.2010. The question of limitation

raised in the instant case is a mixed question of law and fact; this is

evident from the arguments addressed on this score; the judgment

of Dudh Nath Pandey (supra) is inapplicable.

7. This Court shall answer the first question first. The disputed

documents are the two sale deeds i.e. Ex.PW-1/1 which has been

set up by the plaintiff claiming his title over the suit property;

defendant has set up a sale deed Ex.DW-3/1 contending that this

suit property purchased by him and which is in his possession is

different and distinct from the subject matter of Ex.PW-1/1. Both

these documents are in urdu. The record of the Trial Court and the

first Appellate Court does not evidence that official translation of

the said documents had been filed on their record. Before this

Court on 22.2.2006 it had been noted that since both Ex.PW-1/1

and Ex.DW-3/1 are in urdu, the respondent counsel will file english

translation of the said documents. On 19.10.2006 the translated

copy of the said documents had been furnished by the respondent

counsel to the learned counsel for the appellant. On 8.12.2006 this

Court had recorded that the english translation of Ex.PW-1/1 and

Ex.DW-3/1 has been filed by both the parties which is challenged

by both of them; the translation branch of the High Court had been

directed to translate the said documents. The translated versions

are on record. As per this translated version the boundaries of

Ex.PW-1/1 which is a sale deed dated 21.9.1951 executed by Khubi

in favour of plaintiff Beni Prasad Sharma S/o Pandit Girdhar Lal

reads a follows:

"East- By 15 feet gali West- By other plot of me, executant safe from sale. South- By factory of Harbans Lal Gulati North By Kachcha Road of Mangol Pur."

The english translated version of Ex.DW-3/1 which was a sale

deed dated 7.7.1952 executed by Khubi S/o Behari in favour of

Ganga Prasad Sharma S/o Pandit Ram Saroop, the boundaries read

as follows:

"East- 15 feet wide gali West- Plot of me, the executant safe from sale South- 10 feet wide gali North- 41 feet wide road."

8. Before this Court vehement arguments have been urged by

learned counsel for the appellant. Attention has been drawn to the

impugned judgment wherein in various parts of the judgment i.e. in

para 6 and para 7 the name of Balwant has been mentioned; the

impugned judgment has recorded in three paras of the said

judgment that in Ex.PW-1/1 the west side is bound by the house of

Balwant and others. It is submitted that the name of Balwant has

figured from nowhere; it is pointed out that in the english

translation filed by the respondent before this Court the name of

Balwant had occurred for the first time but it is a mystery as to

how this name has been recorded in the judgment of the first

Appellate Court when there was no official translation of the

document filed before the said court.

9. This Court with the consent of both the parties and in order

to unravel this turmoil has summoned the official translator from

the translation branch of the High Court. In presence of both the

parties (as has been recorded in the order of this Court dated 29th

October 2010) the said documents have been read.

The boundaries of Ex.PW-1/1 are as follows:

" East -Gali 15 feet West- Kabza (can be read as Balwant) North- Karkhana South- Kachi Sarak Mangolpur"

In Ex.DW-3/1 the boundaries have been translated as follows: East -Gali 15 feet West- Makbuja (cannot be read as Balwant) North- Gali 10 feet South- Sarak 41 feet"

10. Before the Trial Court the plaintiff had proved the site plan

Ex.PW-4/1 of his suit property; the portion shown in yellow was

purported to be in unauthorized occupation of the defendant of

which he had sought possession. This portion is what the

defendant claims to be his personal plot purchased by him vide sale

deed Ex.DW-3/1. In Ex.PW-4/1 the boundaries of the plot are a

workshop of Gulati, a street, the road leading to Mangolpur, the

property of Bishan Dass. This site plan had been proved through

the version of PW-4 who was the architect who had prepared it;

Ex.PW-4/1 was the copy of the original; the original site plan has

been proved as Ex.PW-4/2. In his cross-examination PW-4 had

admitted that there is a variation in Ex.PW-4/1 qua Ex.PW-4/2; the

word "kit"(kitchen) and "tin shed" as contained in Ex.PW-4/2 does

not find mention in Ex.PW-4/1. Trial Court had noted these facts.

It had also recorded that in Ex.PW-4/1 the number of the property,

number of the plot and number of the khasra are not given; it could

not and did not match the sale deed Ex.PW-1/1. It is thus clear that

Ex.PW-4/1 and Ex.PW-4/2 are not the correct reproduction of the

depiction of the suit property of the plaintiff as purchased by him in

terms of Ex.PW-1/1. Suit of the plaintiff had been dismissed by the

Trial Judge. The Trial had returned a finding that the portion

shown in yellow colour in Ex.PW-4/1 was not proved to be a portion

of the property purchased by the plaintiff in terms of Ex.PW-1/1.

The first Appellate Court had reversed this finding. The

impugned judgment had recorded the fact that the Presiding

Officer had visited the site and had conducted a spot inspection of

the said property. The inspection note has been reproduced afore.

As per the inspection conducted of the suit premises the Presiding

Officer had noted the following boundaries on the plot:

"East- Gali going deep into the south.

North- Mangul pur Road.

West- House of Vishan Narain Marwaha thereafter a row of houses.

South- Gali and thereafter a row of houses."

The impugned judgment had further held that this

establishes that there was only one plot situated at the conjunction

point of Mongolpur Road with a gali in the east and this was the

plot which had been sold to the plaintiff in the first instance and

part of the same plot had been sold to the defendant later on;

„Naksha Nazaria‟ prepared in the presence of the parties had been

relied upon to arrive at this conclusion. Further that both the

plaintiff and the defendant had purchased land from Khubi Ram;

when Khubi Ram had already sold 300 sq. yards of land from

Khasra No.390 to the plaintiff he could not have sold another 200

sq. yards which is also located in the same Khasra. Consequently

the impugned judgment had returned a finding that the later sale

deed i.e. Ex.DW-3/1 has to be discarded in view of fact that the

same property already stood sold to plaintiff vide Ex.PW-1/1; suit of

the plaintiff was decreed.

11. This impugned finding is perverse. The inspection report had

noted discrepant boundaries; the said boundaries on inspection of

the suit property did not match the boundaries as described in

Ex.PW-1/1. This is evident from the aforenoted recording of the

boundaries of Ex.PW-1/1 and the inspection note. The inspection

note had noted that on the southern side of the disputed house

there is a gali; Ex.PW-1/1 had recorded this as a factory of Harbans

Lal Gulati. On the other hand Ex.DW-3/1 which was the sale deed

evidencing the property purchased by the defendant had noted that

the boundary on the south is bounded by a 10 feet wide road. This

southern boundary in Ex.DW-3/1 had in fact matched the

inspection note which had also recorded that on the southern side

there is a gali.

12. From this documentary evidence i.e. a perusal of the sale

deeds Ex.PW-1/1, Ex. DW-3/1 coupled with the inspection note of

the Presiding Officer dated 23.3.1982, it is clear that the

boundaries of Ex.PW-1/1 and Ex.DW-3/1 are distinct and different ;

they do not in any manner tally with one another. It is also not in

dispute that the owner of the lands which were sold vide Ex.PW-1/1

and Ex.DW-3/1 was Khubi Ram; Khubi Ram had 40-50 bighas of

land in the village which he had sold to different purchasers; this

has been testified by PW-1 and PW-3, the plaintiff himself. Both

the plaintiff and the defendant were purchasers of land from him.

Evidence adduced has established that both these purchases were

independent transactions with Khubi Ram. Land in dispute was

was not a part and parcel of what the plaintiff had purchased vide

Ex.PW-1/1. In this view of the matter, it could not be said that the

defendant had encroached or constructed upon the property of the

plaintiff. The impugned judgment had recorded a perverse finding;

that it is perverse is apparent from the fact that the inspection note

had recorded that the southern site as bounded by a gali which was

also the position in Ex.DW-3/1 meaning thereby that yellow portion

constructed on the site was the suit property which had been

purchased by the defendant in terms of Ex.DW-3/1; this

southern boundary in Ex.DW-3/1 did not match the southern

boundary in Ex.PW-1/1. As per Ex.PW-1/1, there was a factory of

Harbans Lal Gulati on the southern side. The plaintiff was not

entitled to any relief. Suit of the plaintiff was rightly dismissed by

the Trial Judge. The stand of the defendant all along was that he is

owner of this property by virtue of the registered sale deed

executed by Khubi Ram in his favour; the plea of adverse

possession was set up as an additional plea; stand of the defendant

cannot be said to be contrary or oscillating.

13. The present suit was a suit for possession; it had been filed

on 6.12.1969. As per the averments in the plaint, the plaintiff had

purchased this property in 1951; for sometime the property

remained vacant, thereafter Nathu Ram took the property on rent

at a rental of Rs.2/-. Nathu Ram was examined as PW-2. He stated

that he had retired in 1967 and had lived in the disputed land by

putting a chappar; however, PW-2 had failed to produce any

evidence to establish this factum. Admittedly, purchase of this

property was effected by the plaintiff in 1951; suit had been filed

on 9.9.1970; i.e. after a span of 20 years. Contention of the

defendant was that he had raised a boundary on the suit land in the

year 1954, this is evident from the testimony of the witnesses

examined as DW-1, DW-2 and DW-3. Counsel for the respondent

has vehemently urged that the DW-3 who was the defendant

himself and in the best knowhow of the date of the construction of

his property had deposed that he had first put the pillars in the

four corners of the land in 1964 and constructed a boundary wall of

one feet; it is pointed out that the version of the other witnesses

namely DW-1 and DW-2 on this score wherein the contention was

that the defendant had raised a boundary wall in 1954 is not

worthy of any merit as the defendant was the best person to know

about the date of this construction. Counsel for the appellant has

urged that the testimony of DW-3 be read as a whole and this

mention of the year 1964 is clearly a typographical error as the

very next sentence speaks of the year 1962 which when read in

conjunction with the earlier version of DW-3 speaks of a later date.

This submission of the learned counsel for the appellant finds force

and is apparent from the testimony of DW-3 and as has been

correctly noted by the Trial Court below. Thus it is clear that the

defendant had occupied the suit property in 1954 when he had

raised construction by making a boundary wall there. The

limitation for filing a suit for possession of immovable property

based on title of which illegal possession had been taken by the

defendant would be 12 years from the date of possession by the

other party which period has to be computed at best from 1954.

This is as per Article 65 of the 1st Schedule of the Indian Limitation

Act, 1963. Present suit filed in 1970 i.e. more than 16 years after

1954 was time barred. Trial Judge had correctly appreciated this

fact. The impugned judgment had reversed this finding in a

perverse manner.

14. The Supreme Court in (2001) 1 SCC 501 Gaya Din Vs.

Hamuman Prasad has defined the expression "perverse" to mean a

finding not supported by the evidence brought on record or against

the law or suffering from the vice of procedural irregularity.

Impugned judgment has ignored the versions of DW-1, DW-2 and

DW-3 who had clearly stated that the defendant had raised

construction therein in the year 1954; interference on this score in

the impugned judgment is a perversity.

15. The substantial questions of law are answered accordingly.

Appeal is allowed. Suit of the plaintiff is dismissed.

INDERMEET KAUR, J.

OCTOBER 05, 2010 nandan