Sh.Som Dutt vs Yogesh Kumar Sharma @ Yogeshwar ...
2011 Latest Caselaw 2142 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Judgment Reserved on: 19.4.2011
                  Judgment Delivered on: 21.4.2011



+ RSA No.170/2006, CM No.7619/2005 & CM No.7620/2006



SH.SOM DUTT                         ...........Appellant
                   Through:    Mr.Mohit Gupta & Mr.A.N.Aggarwal,
                               Advocates.

                   Versus

YOGESH KUMAR SHARMA @ YOGESHWAR SHARMA
                               ..........Respondents
            Through: Mr.Shiv Kumar Sharma, 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.

CM No.7619/2005 (for exemption)

Allowed subject to just exceptions.

CM No.7620/2006 (for delay in refiling)

There is no opposition to the application. The delay in

refiling the appeal is condoned. Application is disposed of.

RSA No.170/2006

1. This appeal has impugned the judgment and decree dated

14.9.2005 which had endorsed the finding of the trial judge dated

10.8.2004 whereby the suit filed by the plaintiff Yogesh Sharma

seeking possession, mandatory and permanent injunction qua the

land measuring 26 sq. yards in Khasra No.93/25 situated within the

revenue estate of village Palam, New Delhi (now known as Sadh

Nagar) had been decreed in favour of the plaintiff.

2. Plaintiff claimed himself to the owner of the aforenoted suit

property; his contention was that out of 26 sq. yards of land 13 sq.

yards of land had been purchased by him from defendant no.6 by

virtue of a agreement to sell, will, affidavit and receipt dated

23.5.1986; the remaining 13 sq. yards of land had been gifted to

him by defendant no.6. Plaintiff had constructed a boundary wall

and a room therein. He was in physical possession of the suit

property. However, the defendant no.1 tried to trespass over the

suit property on the basis of certain forged documents;

proceedings under Section 145 of the Code of Criminal Procedure

(Cr.P.C.) had been initiated; final order was passed by the SDM on

12.5.1988. Possession of the plaintiff was maintained. On

16.5.1988 the defendant no.1 trespassed into the suit property;

criminal complaint was lodged on 17.5.1988. Thereafter present

suit was filed on 22.5.1988.

3. Defendants had contested the suit. Separate written

statements were filed by defendants no.1 and 2, defendants no.3 to

5 and defendant no.6. Their stand was the same. Defendant no.1

claimed himself to be a bonafide purchaser of the suit property in

terms of the documents which included GPA, agreement to sell,

receipt dated 07.3.1988; this property had been purchased by him

from Surender Kaur and Nirmal Singh. Defendant no.6 has,

however, supported the claim of the plaintiff.

4. On the pleadings of the parties seven issues were framed.

Two witnesses were examined on behalf of the plaintiff. Plaintiff

had proved his documents of purchase which was the agreement to

sell Ex.PW-1/1, receipt Ex.PW-1/2. PW-2 (Bishan Swaroop) had

stated that 13 sq. yards of land had been sold by him to the

plaintiff and the balance 13 sq. yards had been donated by him to

the plaintiff. Defendant had proved his documents of purchase i.e.

GPA as Ex.DW-1/A, agreement to sell as Ex.DW-1/B and registered

receipt as Ex.DW-1/C. His affidavit had been proved as Ex.DW-2/A.

On the basis of this oral and documentary evidence, the suit of the

plaintiff was decreed; it was held that the suit property falls in

khasra No.93/25. Village Palam; plaintiff on the basis of the oral

and documentary evidence was entitled to the relief claimed for.

5. This finding was endorsed in the first appeal.

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

in the impugned judgment is erroneous. The plaintiff has to stand

on its own legs. He has failed to discharge his onus. For this

proposition reliance has been placed upon AIR 1998 SC 2352

Punjab U.P.& D. Authority Vs. M/s Shiv Saraswati Iaron & S.R.

Mills. It is pointed out that the order of the SDM dated 12.5.1988

is only a prima facie view; SDM has no authority to decide on the

question of title. For this proposition reliance has been placed

upon AIR 1959 SC 960 Bhinka & Ors. Vs. Charan Singh as also on

2011 [1] JCC 182 Amaravati (Since Deceased) Vs. Dharamraj &

Ors. It is pointed out that it had been brought to the notice of the

SDM that a revision petition was pending against his order dated

06.4.1988 yet the SDM has chosen to pass the final order dated

12.5.1988 notwithstanding this fact. Impugned judgment

decreeing the claim of the plaintiff on documents which were

unregistered is clearly an illegality. Reliance has been placed upon

(2008) 8 SCC 564 K.C.Saha and Sons Pvt. Ltd. Vs. Development

Consultant Ltd. to support his submission that if a document is

inadmissible in evidence for want of registration its terms cannot

read; it is pointed out that in this case the documents of purchase

relied upon by the plaintiff which are an agreement to sell, will and

receipt are unregistered documents; they could not have been read

in evidence. For all the aforenoted reasons the judgment suffers

from a perversity and is liable to be set aside.

7. Arguments have been rebutted. It is pointed out that there

are two concurrent finding of fact against the appellant and

findings of the fact cannot be interfered unless there is a

perversity. No perversity has been pointed out and no substantial

question of law has arisen. Reliance has been placed upon 2009 IV

AD (SC) 277 Narayanan Rajendran & Anr. Vs. Lekshmy Sarojini &

Ors. to support this submission.

8. This is a second appeal. It has been admitted and on

03.8.2007 the following substantial question of law was

formulated:

Whether the plaintiff/respondent is entitled to possession on the basis of documents produced by him before the court?

9. Plaintiff had proved on record the agreement to sell qua 13

sq. yards of the land as Ex. PW-1/1; receipt had been proved as Ex.

PW-1/2. The SDM had passed his order on 12.5.1988; by virtue of

this order the possession of the plaintiff had been recognized.

There is no dispute to the proposition that the order of a criminal

court is not binding on a civil court; yet this was only one piece of

evidence which was looked into by both the courts below to draw a

finding in favour of the plaintiff that he was in possession of the

suit property at the relevant time; i.e. at the time when the dispute

arose. PW-2 had also corroborated this version of PW-1 wherein he

had stated that the possession of the suit property had been

handed over by him to the plaintiff on the said date i.e. on

23.5.1986. PW-2 had sold this 13 sq. yards of land to PW-1; he had

proved his affidavit as Ex.PW-2/1; he had on oath further deposed

that balance 13 sq. yards of land had been gifted by him to the

plaintiff. It is relevant to state that in the entire cross-examination

of PW-2 no suggestion has been given to him that he was not the

owner of this 26 sq. yards of land or that he could not have either

sold or gifted the same to the plaintiff. Per contra the defendants

had relied upon a power of attorney, agreement to sell and receipt

dated 7.3.1988 (Ex.DW-1/A to Ex.DW-1/C); his contention was that

he had purchased this property from Surender Kaur and Nirmal

Singh who had been examined as DW-2 and DW-1. Testimony of

DW-1 and DW-2 had been appreciated; they were the persons from

whom the defendant had purchased this property; they were

themselves not sure about the location of the suit property. DW-2

was unable to give the khasra number in which the disputed

property fell. The defendant no.1 had examined himself as DW-3.

His contention was that he had purchased 28 sq. yards of land from

DW-1; he admitted that in his documents of purchase there is a

mention of only 13 sq. yards of land having been sold to him and

balance 15 sq. yards of land was government land which had

admittedly been encroached upon by him. The site plan filed by

him evidenced that he was in possession of 28 sq. yards of land;

admittedly balance 15 sq. yards of land was public land and for

which there is no explanation as to how and in what capacity he

was occupied this land. DW-13 had also failed to show that the suit

property falls in khasra no.492 in village Nasirpur as was his plea;

this was a specific issue i.e. issue no.6 and the onus to discharge

this issue was on the defendant but he had failed to discharge this

onus. On the other hand evidence of the plaintiff had established

that this suit property is located in Khasra no.93/25.

10. Both the Courts below had held that the documentary

evidence does not establish that the plaintiff is the owner of the

suit property. However, it was established that the possession of

the suit property had been handed over to the plaintiff at the time

when he had purchased it vide Ex.PW1/1, PW1/2 & PW2/1 i.e. on

23.5.1986.

11. Plaint has clearly averred that the plaintiff had been

dispossessed from the suit property on 17.5.1988; present suit was

filed on 31.5.1988.

12. This was a suit under Section 6 of the Specific Relief Act;

having been filed within six months from the date of dispossession,

the suit was within time. Even otherwise limitation was never an

issue before the courts below.

13. Both the courts below have returned positive fact findings in

favour of the plaintiff on all the aforenoted issues and they are

concurrent findings. They can in no manner be said to be

perverse. They do not call for any interference. The plaintiff has

been able to establish by cogent oral and documentary evidence

that he was in possession of the suit property at the time when he

was dispossessed on 17.5.1988. He was entitled to recovery of the

aforenoted suit property. Substantial question of law is answered

in favour of the plaintiff/respondent and against the appellant.

There is no merit in the appeal. Dismissed.

INDERMEET KAUR, J.

APRIL 21, 2011 nandan