Kenneth Loyal @ Manmohan Singh ... vs Shri Vipin Vinod Diwan & Ors.
2011 Latest Caselaw 2062 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment delivered on: 18.04.2011

+                       RSA No.48/2009 & CM No.5299/2009

KENNETH LOYAL @ MANMOHAN SINGH LOYAL
                                                     ........Appellant
                  Through:    Ms. Geeta Luthra, Sr. Advocate with
                              Mr. Harish Malik, Advocate.
                  Versus

SHRI VIPIN VINOD DIWAN & Ors.
                                                   .......Respondent
                  Through:    Mr. S.C. Singhal, 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

16.07.2007 which had endorsed the findings of the trial Judge

dated 22.10.2005 whereby the suit filed by the plaintiff Kenneth

Loyal @ Manmohan Singh Loyal seeking mandatory injunction qua

dispossession from the suit property (No. 254, ground floor, double

storey, new Rajinder Nagar, New Delhi) had been dismissed.

2 The plaintiff is the nephew of defendant No. 1. He was holder

of British Passport and a resident of Dubai. His contention was that

his maternal great grandmother Radha Rani had gifted a sum of

Rs.12,000/- to the mother of the plaintiff who being the sister of

defendant No. 1 had given a loan of Rs.12,000/- to him for the

purchase of the aforenoted property. There was an understanding

between the brother and the sister that the house would be

purchased in the name of the mother of the plaintiff. Defendant No.

1 however did not abide by this understanding. He purchased the

suit property in his own name. A skirmish took place between the

parties. In October, 1994, it was agreed between the plaintiff's

mother and defendant No. 1 that defendant No. 1 would occupy the

first floor of property No. 259 whereas the plaintiff would occupy

the ground floor portion of property No. 254 i.e. the suit property;

respective possession of the properties had also been taken. In mid

January, 1997, defendant No. 1 telephoned the plaintiff that he is

no longer interested in permitting the plaintiff to retain the suit

property without any rent; advance rent was demanded; it was

agreed that the rent deed would be executed; Rs.50,000/- was paid

as advance rent by the plaintiff to defendant No. 1 which

comprised of Rs.15,000/- and Rs.25,000/- by way of account payee

cheques dated 05.01.1997 & 20.05.1997; balance sum of

Rs.10,000/- was paid in cash. On 09.08.1997 defendant No. 1

picked up a quarrel with the plaintiff and his mother. Again a

quarrel was picked up. The plaintiff faced threats of dispossession

from the defendants. Criminal complaint was also lodged. Present

suit was accordingly filed.

3 On 26.09.1997, a Local Commissioner was appointed in the

presence of the parties. He was an Advocate namely Sanjay Sethi

who had been directed by the court to visit the suit property to

verify the factum of possession; time and date was fixed by the

Court. The Local Commissioner had reported that the suit property

was in possession of defendant No. 1. Allegation of the plaintiff is

that this report of the Local Commissioner is false.

4 The defendants filed written statement. It was stated that the

plaintiff has no locus-standi to file the present suit; a sum of

Rs.40,000/- received by defendant No. 1 was by way of gift to

defendant No. 3 (son of defendant No. 1); it was paid on the

occasion of Lohri festival and on the first marriage anniversary of

defendant No. 3. It was denied that Rs.10,000/- had been paid by

cash.

5 On the pleadings of the parties, seven issues were framed.

Oral and documentary evidence was led. All the issues were

decided against the plaintiff. The Court was of the view that the

plaintiff has failed to show his legal status in the suit property;

defendant No. 1 was admittedly the owner of the suit property.

PW-4 was the plaintiff. The contradictions in his testimony had

been noted; different addresses had been given by him; he was not

clear as to whether he has given Rs.10,000/- in cash directly or

through Mr. Ashwani Kumar Ahluwalia. In his cross-examination,

he had admitted that the relations between himself and defendant

No. 1 were cordial. The report of the Local Commissioner had been

proved as Ex.DW-1/2. On the preponderance of probabilities, suit of

the plaintiff stood dismissed.

6 The order of the trial Judge was affirmed in first appeal.

7 This is a second appeal. On behalf of the appellant, vehement

arguments had been urged. It is urged that the report of the Local

Commissioner cannot be read in evidence in view of provisions of

Order XXVI Rule 9 of the Code of Civil Procedure (hereinafter

referred to as the 'Code') as a mandatory notice is required to be

given before the Local Commissioner visits the spot. For this

proposition reliance has been placed upon the judgment reported

in 1995 111 AD Delhi 414 Sh. B.L. Nijhawan Vs. Satish Ray Kapoor

as also another judgment reported in 2009 (13) SCC 569 Rani

Aloka Dudhoria & Others VS. Gautam Dudhoria. For the same

proposition reliance has also been placed upon AIR 1980 ORI 52

Chaitan Das Vs. Purnbasi Pattnayak. It is submitted that the Local

Commissioner has also to be necessarily examined as a witness

which was not done so in this case. No reliance could have been

placed on the report of the Local Commissioner.

8 This argument is bereft of any force. Reliance placed as

aforenoted also does not advance the submission made by learned

counsel for the appellant. Admittedly the Local Commissioner had

been appointed by the Court in the presence of the parties and

with the consent of the counsel for both the parties. The Local

Commissioner who was an Advocate namely Sanjay Sethi was

present in Court; he had been directed to visit the suit property on

27.09.1997 i.e. on the following day at 01:00 PM; he had been

directed to verify the factum of possession of the suit property; the

date & time and notice of the purpose of the visit was well-known

to both the parties; in this scenario, the question of a second notice

by the local commissioner does not arise. The submission of

learned counsel for the appellant that the local commissioner had

to be examined as a witness before his report could be read in

evidence is also a meritless objection. If the plaintiff was aggrieved

by the report of the local commissioner, she should have filed

objections to the said report; no such objection had been filed. No

application had also been filed before the Court to summon the

local commissioner in order to examine him. This argument holds

no water.

9 The second argument urged by learned counsel for the

appellant is that the court below had committed a patent illegality

in not allowing certified copy of a probate petition to be filed

before it when a certified copy of the same had been placed before

the trial Judge; under Section 74 of the Indian Evidence Act, there

was a presumption about the correctness of a certified copy of a

document and same should have been read in evidence. There is no

doubt about the proposition that a certified copy of a judgment can

be taken on record and presumption can be drawn in favour of

such a document. However, in this case both the courts below had

correctly noted that this probate petition did not concern the

plaintiff; the plaintiff was not a party to it. Defendant No. 1 had

sought probate of Will of his mother in which objections had been

filed by the mother of the plaintiff; the plaintiff was not a party;

this position is admitted. In these circumstances, the trial Judge

had rightly held that the plaintiff seeking permission to place on

record the certified copy of the probate petition is not going to

advance his case; his prayer was rightly rejected. This was

endorsed in first appeal. This argument is also meritless.

10 Substantial questions of law have been embodied on page 3

of the body of the appeal. No such substantial question of law has

arisen. There is no merit in this appeal. Appeal as also pending

application are dismissed in limine.

(INDERMEET KAUR) JUDGE APRIL 18, 2011, A