Sh. Chand Ram (Since Deceased) ... vs Sh. Narender Kumar & Ors.
2011 Latest Caselaw 1150 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 25.02.2011

+                 RSA No.13/2009& CM No. 814/2009



SH. CHAND RAM (SINCE DECEASED)
THROUGH LEGAL HEIRS
                                             ...........Appellant
                        Through: Mr.Sunil Chauhan , Advocate.

                  Versus

SH. NARENDER KUMAR & ORS..
                                                ..........Respondent.
                        Through: Mr. Ajay Arora, Advocate for R-4


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

22.11.2008 which had endorsed the findings of the trial Judge

dated 21.11.2005 whereby the suit filed by the plaintiff Chand

Ram through his legal heirs seeking a permanent and mandatory

injunction against four defendants had been dismissed. Defendant

No. 4 was the Municipal Corporation of Delhi (MCD).

2 The case of the plaintiff is that he had purchased plot No. 26-

A, B Block, Sarai Pipal Thala Extension, Adarsh Nagar, Delhi

measuring 150 square yards comprising of one room, latrine,

bathroom, handpump and boundary wall for defendant No. 4.

Relevant documents to the said effect had been executed. The said

documents had been proved before the trial Court as Ex. PW-2/A to

Ex. PW-2/C. They were an agreement to sell, power of attorney,

Will etc. In the trial court, the trial Judge was of the view that only

the photocopies of the said documents had been produced yet the

appellate court had examined these documents and had exhibited

them holding that they are originals. The said documents had been

read in evidence. The impugned judgment had noted that the said

documents are not reliable as the text of the said documents was

contrary to the version set up by the plaintiff. The plaintiff had

himself not come into the witness box. His legal

representative/power of attorney had been examined as PW-3.

PW-3 in his cross-examination had stated that his father had

constructed the structure on the suit property after purchasing it

from one Shri Narender Singh. Documents of purchase by the

plaintiff are Ex. PW-2/A to Ex. PW-2/C. Ex. PW-2/A categorically

recites that the plaintiff had purchased plot No. 26-A, B Block,

Sarai Pipal Thala Extension, Adarsh Nagar, Delhi comprising of one

room, latrine, bathroom, handpump and boundary wall built on it.

The impugned judgment had noted that the oral evidence of PW-3

was clearly in contrast with the documentary evidence Ex. PW-2/A

to Ex. PW-2/C adduced by him; his version was not believed. The

supporting statements of PW-1 & PW-2 had also not been believed

by both the courts below. Per contra, defendant No. 4 had

examined an Executive Engineer from the MCD as DW-4. The said

witness had reiterated that the lay out plan was the correct lay out

plan of the location of the suit property. The said document had

been proved as Ex. DW-4/1. No cross-examination had been

affected either of DW-1 or DW-4 on this count that this document is

not a true copy of the layout plan. DW-4 who was the Engineer

from the MCD was an official witness. He had deposed that as per

this layout plan, there should be a lane of 30 ft. at the site but on

inspection, it is found to be only 10-12 ft; 20 ft of the same had

been encroached by the property owners of both sides and this

encroachment had been noted by him; he had further deposed that

the plaintiff Chand Ram was a encroacher. This witness had no axe

to grind. He was an official witness who have come on behalf of

defendant No. 4. Apart from the fact that no cross-examination had

been done on the authenticity and veracity of the layout plan which

had been proved in the version of DW-3 and endorsed by DW-4,

even otherwise the plaintiff through his own testimony i.e. PW-3

had destroyed his case. His oral evidence was contrary to the

documents relied upon by him.

3 To obtain a relief of injunction which is a equitable relief, the

plaintiff must come to the Court with clean hands. Both the courts

below had noted that the plaintiff had not come with clean hand;

he was not entitled to the relief as prayed for by him. The

impugned judgment has returned the following findings:-

"8. Ld. Trial Court has observed that documents proved on record are the zerox copies. It is correct that documents Ex.PW2/A to PW2/C are not the zerox copies, but the original documents. However in order to prove these documents PW2 the son of a friend of plaintiff appears in th witness box. As per the case of the appellant respondent no. 1 was the executant of these documents. As per record he had appeared before the court initially. Executant of these documents was the best witness to prove the documents. Even if he was arrayed as defendant no. 1, there was no legal bar to examine him as plaintiff witness to prove the documents Ex.PW2/A to PW2/C. Otherwise also, the testimony of PW2 suffers from material contradictions. He stated that he was not aware where the documents Ex. PW2/A to PW2/C were prepared and on which

date the same were prepared. He further deposed that documents were signed by his father in the area of Aadarsh Nagar in a plot situated just behind the plot no. 26-A on 15.5.87. He was not aware that who brought the documents to get it sign from his father. He further deposed that payment of Rs. 55000/- was made at the same time and receipt Ex. PW2/C was prepared and signed by his father on 15.05.07. This portion of his testimony is just contrary to the pleadings and documents filed by the appellant. As per the case of the appellant documents Ex. PW2/A to PW2/C were executed at the office of Sub Registrar and not in the area of Adarsh Nagar. Similarly as per the case of appellant consideration amount of Rs. 55000/- was also paid at Sub Registrar office at the time of execution of receipt Ex.PW2/C and not at Adarsh Nagar. Further as per the testimony of PW2 the receipt Ex.PW2/C was executed on 15.5.07 whereas the receipt Ex.PW2/C clearly established that the same was executed on 21.5.1987. In view of the above observations, in my view, the testimony of PW2 is full of contradictions and lies contrary to the basic case of the appellant. The testimony of PW2 does not appears to be trustworthy, credible, reliable and truthful. I am convinced that PW2 is not a genuine and natural witness.

9. Therefore, in my opinion, Ld. Trial court correctly concluded that documents Ex. PW2/A to PW2/C could not be proved in accordance with law of evidence and the chain was interrupted, incomplete and broken.

10. Now coming to the testimony of PW1 Sh. Sher Singh. As per his testimony he was the resident of the same locality. As per his testimony Sh. Chand Ram has raised construction of room, one latrine and bathroom over the property, which were removed in the year 1992. His testimony is also contrary to the documents relied by appellant. As per GPA Ex.PW2/A, on the date of execution of this document, the suit property was comprising of one room, latrine, bathroom and boundary wall. If GPA Ex.PW2/A is taken as correct, the testimony of PW1 appears to be false. The testimony of PW1 does not appear to be trustworthy and reliable.

11. PW3 Sh. Jeet Singh the son of Sh. Chand Ram stated that when his father purchased the suit property, it was totally a vacant plot and there was no construction on the suit property. As per his testimony his father raised the construction over the suit property, whereas mentioned above document Ex.PW2/A filed by plaintiff clearly established the facts just contrary to the testimony of PW3. In my opinion PW3 is also not trustworthy and reliable witness.

12. On the other hand testimony of D3W1 Sh. Suresh Kataria, D3W2 Sh. Inder Singh, D3W3 Sh. Inderjeet Sharma appears to be natural. They are independent witnesses, resident of the same locality. As per their testimony suit property bearing plot no.26A never existed. As per their testimony it was a public lane, which was admitted to be encroached firstly by the colonizer and then by the plaintiff. In this regard they have clearly mentioned about the holding of Punchayat and reports to the police. Testimony of Sh. Ashok Drabu D4W1, who was the Executive Engineer of the MCD further proved that he filed a report after a survey of the locality. As per his testimony, in accordance with lay out plan, there was a lane of about 30' and 20' of the road was encroached upon by the property owners on both the sides. He also stated that plaintiff has made encroachment on the municipal land/gali and as per lay out plan there was no plot bearing no.26A. During cross examination of witness nothing material could be achieved. As per the lay out plan Ex.D3W1/4 duly certified by the MCD, between 28B and 29B, there was a lane about 30'.

13. After careful consideration of entire material on record and in view of the above findings, in my opinion appellant has failed to prove his case before the trial court. He could neither proved the documents Ex.PW2/A to PW2/C in accordance with law of evidence nor could established his possession. From the testimony of witnesses and material on record, I am convinced that appellant in collusion with other parties filed the present suit with a motive to grab the public land of a gali.

14. With these findings, in my opinion, there is no illegality or infirmity in the judgment of the Ld. Trial Court."

4       There is no infirmity in the same.

5       Substantial questions of law have been formulated at page 4

of the body of the appeal. They read as under:-

(a) "Whether the registered documents, such as General Power of Attorney coupled with Agreement to Sell and Receipt executed by respondent No. 1 in favour of the appellants, could have been ignored by the courts-below while dismissing the suit for injunction simplicitor filed by the appellants ?

(b) Whether the courts-below erred in law in relying upon the oral testimony of the witnesses and ignoring the documentary evidence placed on record by the appellants, which were duly proved ?

(c) Whether question of title could have been gone into in a suit for permanent and mandatory injunction without there being a specific issue?

(d) Whether a document placed on record in complete contravention of the provisions of CPC and which was not even proved in accordance with law could have been considered for denying the relief to the appellant ?"

6 They are all facts based and have been gone into in detail by

the two facts finding courts. No substantial question of law has

arisen. There is no merit in this appeal.

7 Appeal as also pending application are dismissed in limine.

INDERMEET KAUR, J.

FEBRUARY 25, 2011 a