Delhi High Court

Shri Samay Singh @ Bali & Anr. vs Shri Kehar Singh on 13 January, 2011

Author: Indermeet Kaur

R-142
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment Reserved on: 11.01.2011
                              Judgment Delivered on: 13.01.2011


+      RSA No.203/2003 & CM No.698/2003 (for stay)


SHRI SAMAY SINGH @ BALI & ANR.         ......Appellants.
              Through: Mr.Rajendra Dutt, Advocate.

                   Versus

SHRI KEHAR SINGH                                 .....Respondent
              Through:         None.


       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.699/2003 (u/S 151 CPC)

Allowed subject to just exceptions.

RSA No.203/2003 & CM No.698/2003 (for stay)

1. This appeal has impugned the judgment and decree dated

26.8.2003 which had endorsed the finding of the trial judge dated

22.8.1996 whereby the suit of the plaintiff Kehar Singh seeking

permanent injunction had been decreed in his favour.

2. The plaintiff had filed a suit for permanent injunction.

Contention was that he is owner in possession of the property

marked ABCDEF and the property marked ABHG in the site plan

attached along with the plaint situated in the Ababdi Salahpur Majra,

Delhi. The property marked ABCDEF was partly built up and rest is

vacant land used by the plaintiff for tying his cattle. Defendant did

not own and was not in possession of any land around or in the

vicinity of the plaintiff. Defendant with malafidie and ulterior

motive threatened to occupy the open portion of the plaintiff's

property marked CDEB. In spite of the request, the defendant did

not desist from his act; suit was accordingly filed.

3. Defendant had contested the suit. In the written statement, it

was contended that the site plan filed by the plaintiff is not a correct

depiction of the site. Defendants are in possession, use and

occupation of the land marked BEDC in the site plan filed by them.

4. On the pleadings of the parties, the following four issues were

framed:

"1.Whether the plaintiff is the owner in possession of the property in suit described as in para -1 of the plaint ?OPP

2.Whether the portion CDEF as marked in the site plan of the plaintiff is in possession and ownership of the defendants as alleged in para-1 of the written statement, if so, its effect? OPD

3. Whether the Local commissioner's report dated 22.12.1981 is liable to be set aside as alleged in the objection petition? OPP

4. Relief."

5. Six witnesses were examined on behalf of the plaintiff and four

witnesses were led on behalf of the defendant. The trial court on

the basis of the oral and documentary evidence had decreed the suit

of the plaintiff. Apart from the oral evidence, the documentary

evidence i.e. the gift deed Ex.PW-5/1 executed by Sarti in favour of

Balbir proving the location of the plot as also certified copy of the

judgment in case no.3/86 dated 02.8.1996 between one Umed Singh

and plaintiff Kehar Singh Ex.P-2 had been relied upon by the trial

court to draw the aforenoted conclusion.

6. In appeal this judgment was confirmed.

7. This is a second appeal. After its admission, the following

substantial question of law was formulated on 10.2.2005; it inter alia

reads as follows:

"Whether the impugned order dated 26.8.2003 is perverse and

vitiated inasmuch as the Trial Court and the Appellate Court have

failed to consider the material evidence on record while arriving at

their conclusions?"

8. On behalf of the appellant, it has been urged that the site plan

has not been proved in accordance with law and as such no reliance

could have been placed upon the said document Ex.P-1. Draftsman

has not come into witness box. For this proposition reliance has

been placed upon AIR 1968 Bombay 112 Sir Mohammed Yusuf &

Anr. Vs. D. & Anr. It is contended that the courts below have

ignored the cross-examination of PW-6 who had admitted that the

disputed portion was in part possession of the defendant. Testimony

of PW-3 has not been appreciated. The document Ex.PW-5/1 could

not have been relied upon as Balbir Singh has not come into witness

box. The site plan proved by the defendant has also been overlooked.

The material evidence having been ignored the impugned judgment

is liable to be set aside. For this proposition reliance has been

placed upon AIR 1988 SC 703 J.B.Sharma Vs. State of Madhya

Pradesh & Anr. AIR 1968 SC 466 Smt. Sonawati & Ors. Vs. Sri Ram

and Anr. and AIR 1988 SC 1858 Dilbagrai Punjabi Vs. Sharad

Chandra.

9. None has appeared for the respondent.

10. The record had been perused. The site plan Ex.P-1 had been

filed along with plaint. It had been proved through the version of

PW-1. Submission of learned counsel for the appellant that the

draftsman has not been produced into witness box to prove the site

plan is of little avail in view of the fact that there is a categorical

averment by PW-1 that the draftsman had since expired. In the

cross-examination of PW-1 a bald suggestion has been given that the

site plan is not as per the site at the spot. This, however, is not

sufficient to demolish the document Ex.P-1 as not only has this site

plan and the location of the suit property qua this document been

proved through the version of PW-1 but the supporting statements of

the other witnesses of the plaintiff have also conformed to this site

plan. PW-2 Satbir Singh was known to both the parties. He has also

endorsed the location of the suit property in Ex.P-1 as also the

adjoining properties; so also is the version of PW-3 Hukum Chand

who was also known to both the parties. He had deposed that the

space marked G in Ex.P-1 is the gali used by the plaintiff. PW-2 and

PW-3 had not been suggested that the site plan is not as per the site

and as deposed by them. The version of Pw-6 Ram Niwas, the

photographer of the location, has also been perused. The cross-

examination sought to be highlighted by the learned counsel for the

appellant does not in any manner support him. In his cross-

examination PW-6 has stated that there is a portion of vacant land in

front of the house of the plaintiff and in front of the house of the

defendant as well; in the open area the defendant has tied his

buffaloes; nowhere PW-6 has stated that the site in dispute is in

possession of the defendant. The photograph Ex.PW-6/12 has also

been seen. In his cross-examination PW-6 has admitted that the

family members of the defendants are sitting on the bricks and the

lower level of the property belonged to the plaintiff. This testimony

also does not in any manner advance the case of the defendants.

Ex.PW-5/1 was the gift deed proved though testimony of PW-5

Purshotam Lal Bhatia who has produced the record from the office of

Sub-Registrar, Kashmere Gate. As per this registered document on

13.11.1964 Sarti Devi had executed the gift deed in favour of her

grandson Balbir Singh which is Ex.PW-5/1. Ex.PW-5/1 is a document

in urdu but admittedly this document has gifted the property which

is adjoining the house of the plaintiff to Balbir Singh. Location of the

suit property had been established through Ex.PW-5/1; the

boundaries mutated in Ex P-1 matched the boundaries in Ex PW5/1

showing the house of Balbir Singh at Point I. Ex.P-2 is a judgment

dated 12.8.1986 passed by the Circle Office in proceedings between

the plaintiff Kehar Singh and Umed Singh wherein it has been held

that the open portion in front of the plot of Kehar Singh is owned by

him and is in possession with him. Both these documents

i.e.Ex.PW-5/1 and Ex.P-2 had been relied upon by the Courts below

to hold that the preponderance of probabilities were more in favour

of the plaintiff than that of the defendant entitling the plaintiff to a

decree of permanent injunction.

11. This finding in the impugned judgment reads as follows:

"Undoubtedly, the said document is not between the parties but being judicial pronouncement having evidentiary value more particularly when the appellants relied upon the oral testimonies. It is settled proposition of law that written document shall prevail upon the oral testimony. No only this the registered Gift Deed dated 13.11.1964 as Ex.PW-5/1 also falsify the plea of the defendants of having his house near the suit property. The boundaries of the gifted house marked-I in the site plan Ex.P-1 do not suggest or show any house/property of Shri Man Singh (since deceased). PWs have also

corroborated with each other and fully supported the case of the plaintiff with regard to his ownership in possession. There is no contrary evidence on record. The appellants have failed to prove their case through acid test of truth.

On the basis of re-appreciation of the evidence and pleadings of the parties I am of the considered view that the Ld. Trial Court has rightly arrived at a conclusion that plaintiff (respondent herein) had successfully proved his claim.