Sh. Paltoo Ram (Deceased) Through ... vs Smt. Uma Devi (Deceased) Through ...
2011 Latest Caselaw 1967 Del

I8
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 05.04.2011


+      RSA No.237/2008 & CM No. 16711/2008 & 7661/2010



SH. PALTOO RAM (DECEASED) THROUGH LRS.
                                                   ...........Appellant
                         Through:    Mr.Anil Sapra, Sr. Advocate
                                     with Mr.Vinay Pati Triapthi,
                                     Mr.Shravanth Shanker, Ms.
                                     Vrinda Kapoor & Ms. Urvi
                                     Kuthiala, Advocates.

                   Versus

SMT. UMA DEVI (DECEASED) THROUGH REPRESENTATIVE
                                     ..........Respondent.

                         Through: Mr. Amarjit Singh, 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. (Oral)

1 This appeal has impugned the judgment and decree dated

09.07.2008 which has endorsed the findings of the trial Judge

dated 07.01.2005 whereby the suit filed by the plaintiff Smt. Uma

Devi seeking recovery of possession and mesne profits qua the suit

property i.e. agricultural land situated at Khasra No. 586-589,

Village Chanderwali (now known as Illaqa Kanti Nagar, Shahdara,

Delhi) had been decreed in her favour.

2 The case of the plaintiff is that she along with her son Vinay

Pal had inherited the aforenoted suit property from her deceased

husband Om Prakash who was the owner of the suit property. The

defendants had illegally and unauthorisedly encroached upon 550

square yards of the land seven years ago without the consent and

permission of the plaintiff; unauthorized construction had also

been raised therein. Inspite of legal notice dated 16.04.1990, the

defendants had failed to vacate the suit property. Suit was

accordingly filed.

3 The defendants filed separate written statements. The

defennce was more or less common. It was contended that the suit

is barred by limitation; the defendants had become owners by

adverse possession; additional plea was that they had purchased

their respective portions from Krishna Devi who is the widow of

Vinay Pal and who had inherited this property from her deceased

husband Vinay Pal; Smt. Uma Devi could not have inherited this

property as there was a bar under Sections 85 & 185 of the Delhi

Land Reforms Act, 1954; the land being agricultural could not have

been inherited by a lady; suit was liable to be dismissed.

4 On the pleadings of the parties, the following eight issues

were framed:-

1. Whether the suit is within limitation? OPP

2. Whether the suit is bad for mis-joinder of necessary parties? If so, its effect? OPD

3. Whether suit is properly valued for the purpose of Court Fees and jurisdiction? OPP

4. Whether plaintiff has suppressed/concealed material facts? If so, to what effect?

5. Whether defendants have become owner of the suit property by way of adverse possession? OPD

6. Whether plaintiff is entitled to decree for possession as claimed? OPP

7. Whether plaintiff is entitled to damages for enjoying the suit property. If so, at what rate and for which period.

8. Relief.

5 Oral and documentary evidence was led which included the

testimony of PW-1 Krishan Bal Sharma who was the power of

attorney holder of the plaintiff Uma Devi. PW-1 had entered into

the witness box and deposed on behalf of his aunt; power of

attorney Ex. PW-1/1 executed in his favour by Uma Devi was of the

year 1982-83. The deposition of PW-1 was made in December,

1997. This testimony of PW-1 was coupled with the documentary

evidence which was the khasra girdawari and jamabandi of the

aforenoted property evidencing the factum of possession of this

land in favour of the plaintiff with the additional documents i.e.

certified copy of a judgment dated 22.11.2001 passed by the

Additional District Judge in Suit No. 656/1994 titled as Uma Devi

Vs. Om Prakash wherein the court had held that Uma Devi had

inherited the property i.e. khasra No. 586-589 in Village

Chanderwali now known as Illaqa Kanti Nagar, Shahdara, Delhi

from her deceased husband. This judgment had been re-affirmed

by the High Court and also by the Apex Court. The Court had also

noted that the Halka Patwari had come into the witness box as

DW-5; he had deposed that this land was mutated in the name of

the plaintiff vide mutation No.7717; certified copy of which was

proved as Ex. DW-5/1. This oral and documentary evidence had

been taken into account to substantiate the claim of the plaintiff

that she was the owner of the suit property. Even otherwise, there

was no specific defence that the plaintiff was not the owner of the

suit property. The defence in the written statement was that the

defendants have become owners by adverse possession; additional

plea was that they had purchased their respective shares from the

widow of Vinay Pal (son of Uma Devi). No issue had also been

framed in the court below on the question of ownership as this was

never a disputed or contentious issue between the parties.

6 Argument urged before this Court that a suit for possession

could not have been decreed in the absence of the plaintiff having

proved her ownership is an argument without any force. Reliance

by learned counsel for the appellant on the judgment reported in

AIR 1994 SC 227 Guru Amarjit Singh Vs. Rattan Chand & Others is

misplaced. There is no doubt to the proposition that the entries in

the jamabandi are not by themselves proof of title; they are only

statements for revenue purpose. However, as noted afore this was

not the only document which had weighed in the mind of the court

to establish the claim of the plaintiff that she was the owner of the

suit property. The written statement also did not show that the

claim of ownership was seriously disputed by the defendants.

Reliance upon (2008) 4 SCC 594 Anathula Sudhakar Vs. P. Buchi

Reddy is also without any force. Contention of the appellant is that

when the plaintiff's title itself was under a cloud, the appropriate

remedy was to file a suit for declaration and possession coupled

with a relief of injunction. This argument is devoid of force;

especially in view of the fact that no such defence had been taken

in the written statement; there was no dispute on the ownership.

The twin defence of adverse possession and the additional plea of

the defendants having purchased their respective shares from the

daughter in law of Uma Devi were the two defences of the

defendants. This submission of learned counsel for the appellant is

thus without any force. It does not raise a substantial question of

law.

7 The second argument urged by learned counsel for the

appellant is that a power of attorney holder is not in his capacity to

depose on facts which are outside his knowledge. This is an

undisputed proposition. Reliance by learned counsel for the

appellant on the judgment reported in AIR 1999 SC 1441

Vidhyadhar Vs. Mankikrao & Another is totally out of context. Para

16 has been highlighted. There is no doubt that when a party to the

suit does not appear into the witness box and does not offer himself

for cross-examination by the other side, a presumption against him

would arise. The second judgment relied upon by learned counsel

for the appellant reported in AIR 2005 SC 439 Janki Vashdeo

Bhojwani & Another Vs. Indusind Bank Ltd. is also out of context.

In this case, the Apex Court had held that a power of attorney

holder who does not have personal knowledge of the matters of the

appellant is not a fit person to depose on behalf of such a person. It

is not pointed out anywhere from the testimony of PW-1 that PW-1

was a person who did not have personal knowledge about the case;

in fact no such suggestion has been given to PW-1. PW-1 was

holding a power of attorney Ex. PW-1/1 duly executed by the

plaintiff in his favour; his aunt being old; he as her nephew was

watching her whereabouts; they were living in the same house.

This argument of learned counsel for the appellant is thus bereft of

any merit.

8 This is a second appeal. Substantial questions of law have

been embodied at page 3 of body of the appeal. No such

substantial question of law has arisen.

9 The impugned judgment after a detailed scrutiny and

reappreciation of evidence both oral and documentary HAS

endorsed the finding of the trial Judge which had decreed the suit

of the plaintiff; defence of the defendants had been rejected. These

concurrent findings of fact call for no interference. There is no

merit in this appeal. Appeal as also pending applications are

dismissed in limine.

INDERMEET KAUR, J.

APRIL 05, 2011 a