Delhi High Court
Sh. Sukhey (Deceased) Through ... vs Sh.Gauri Shanker & Anr. on 8 February, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 08.02.2011
+ RSA No. 15/2011
SH. SUKHEY (DECEASED) THROUGH LRS. ...........Appellant
Through: Mr.R.K.Shukla, Advocate.
Versus
SH.GAURI SHANKER & ANR. ..........Respondents
Through: Nemo.
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
13.10.2010 which had endorsed the finding of the trial judge dated
19.8.2009 whereby the suit of the plaintiff i.e. Sukhey (deceased)
filed through his legal heirs seeking possession of the suit property
i.e. property bearing Municipal No.D-100, Laxmi Nagar, Delhi
forming part of Village Shakarpur Khas, Delhi comprising part of
Khasra No.83 had been dismissed.
2. Plaintiff claimed himself to the owner of the aforenoted suit
property. He had earlier filed a suit for ejectment of the
aforenoted suit shop and recovery of rent against defendant no.1
which was suit No.196/98. Plaintiff has claimed relationship of
landlord and tenant between the parties. Defendant had denied
the said relationship; that suit had been dismissed on 11.8.1999.
Thereafter this suit has been filed.
3. In the written statement, the defendant had disputed the
ownership of the plaintiff. Preliminary objection of res judicata had
also been taken.
4. On the pleadings of the parties seven issues were framed.
Plaintiff had examined his attorney PW-1 Balak Ram; two
documents had been brought on record to substantiate his
ownership. Ex.PW-1/3 is the house tax receipt evidencing the
payment of house tax of Rs.5000/- qua the suit property. This
document had rightly been rejected by the Courts below as not
conferring any ownership or title on the plaintiff qua the suit
property. The second document brought on record was the
L.R.form Ex.PW-1/4; this is a document which is in urdu.
Admittedly english translation of this document had not been filed
in both the Courts below. While disposing of issue no.5, the trial
judge had noted that Ex.PW-1/4 on the basis of which the plaintiff
has claimed ownership is a photocopy of the L.R. form no.4 which
is in urdu and the english translation of the same has not been
filed. No other document has been filed by the plaintiff to set up
his claim. The Courts below had rightly held that the plaintiff has
failed to show that he is the owner of the suit property and as such
his suit was dismissed. These findings were re-examined in detail
in the impugned judgment and were confirmed. Para 43 and 44 of
the impugned judgment is relevant in this context; it read as
follows:
43.Since the plaintiff has filed the present suit for possession and
recovery of damages on the basis of his ownership and the
defendant has denied the ownership of the plaintiff, so, it was
incumbent on the part of the plaintiff to prove his title, because
the plaintiff Shri Sukhey has claimed to be the exclusive owner of
the suit property and in order to prove his title the plaintiff has
examined his attorney PW-1 Shri Balak Ram and in order to prove
his title he has filed certified copy of LR form no.4, the same is
Ex.PW-1/4, which is in Urdu language.
44. Since, the plaintiff has failed to summon any witness to prove
document Ex.PW-1/4, the law is well settled that with the mere
exhibition of the document, same is not proved, so the same
document cannot be looked into. The plaintiff has also relied upon
an other document i.e. Ex.PW-1/3 which is the house tax receipt,
but, the law is well settled that the entries in the receipt of the
House Tax is not proof of ownership. The ld. Counsel for the
appellant has submitted that the co-owner can file a suit. I have
full inclination with such submissions of the ld. Counsel for the
appellant."
5. The plaintiff not being able to establish his ownership qua
the suit property, the suit for possession was rightly dismissed.
6. It is also relevant to point out that the attorney of the plaintiff
while deposing in his capacity as PW-1 in his cross-examination
had stated that he is the exclusive owner of the suit property where
in his cross-examination he claimed himself to be a co-owner. The
judgment relied upon by the learned counsel for the appellant
reported in 40(1990) DLT 82 Mahavir Prashad Vs. Sukhdev Mongia
lays down the undisputed proposition that a co-owner can file a
suit for possession against a trespasser without impleading the
other co-owners. The ratio of this judgment in no manner come to
the aid of the plaintiff. The case of the plaintiff was that he is the
owner of the suit property; in the plaint he has not specifically
claimed to be a co-owner or an exclusive owner. Even assuming
that he is a co-owner; and a co-owner can file a suit for possession
yet the fact that when the defendant had specifically disputed the
ownership of the plaintiff it was incumbent upon the plaintiff to
have prove the same; he had failed to do so. Ex.PW-1/3 and
Ex.PW-1/4 were not sufficient for this purpose.
7. Substantial question of law have been formulated on page 16
of the appeal. They largely border on the documents Ex.PW-1/3
and Ex.PW-1/4. No substantial question of law has arisen. The
appeal is dismissed in limine.
INDERMEET KAUR, J.
FEBRUARY, 08, 2011
nandan
