Nazakat Ali Siddiqui vs Lt.Col.Pawan Kumar Dandona
2011 Latest Caselaw 393 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.423/1999

%                                                    24th January, 2011

NAZAKAT ALI SIDDIQUI                                    ...... Appellant
                                Through:    Mr. Sachin Chopra, Advocate


                          VERSUS


LT.COL.PAWAN KUMAR DANDONA                              ...... Respondent

Through: Mr. S.C.Singhal, Advocate

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of the present first appeal under

Section 96 of the Code of Civil Procedure, 1908 is to the impugned

judgment and decree dated 6.3.99. By the impugned judgment, decree,

the suit of the respondent/plaintiff has been decreed against the

appellant/defendant with respect of the second floor of the property

bearing no.1024-1028, Bazar Chitli Qabar, Jama Masjid, Delhi on the

ground that the appellant was in illegal possession of the second floor.

Appellant was otherwise a tenant of the ground floor of the very premises.

2. Two issues were argued before the Trial Court and are also the

issues which have been argued before me. The first issue is that the

respondent/plaintiff was not a legal heir of the deceased original owner

late Smt. Urmil Dandona. The second issue which was urged before me is

with respect to the receipt, Ex.DW-1/1 dated 2.7.1986 on the basis of

which, the appellant/defendant claims to be in legal possession of the

second floor and terrace as a tenant and was allowed to construct on the

same.

3. So far as the first argument is concerned, the Trial Court has

dealt with this aspect in detail while discussing the issue no. 1 from para

14 of the impugned judgment till para 20 of the impugned judgment.

The Trial Court has firstly relied upon the Will of late Smt. Urmil

Dandona which has been proved as Ex.PW-2/1 through the attesting

witness of the Will. The Trial Court has noted that in any case, the

respondent/plaintiff was the co-owner of the property because late Smt.

Urmil Dandona was the sister of the father of the respondent/plaintiff and

Smt. Urmil Dandona died as a spinster. The brother of late Smt. Urmil

Dandona therefore became one of the co-owners of the suit property under

the Hindu Succession Act, 1956 and consequently the respondent/plaintiff

who was the son of the brother of late Smt. Urmil Dandona became a co-

owner.

I do not find any illegality or perversity in the findings of the

Trial Court in this respect. Once the Will has been proved, and nothing has

been otherwise led in evidence by the appellant/defendant to dis-prove the

same, the respondent/plaintiff was no doubt a legal heir of late Smt. Urmil

Dandona and the complete owner of the property. In any case, the

respondent/plaintiff was one of the co-owners and it is settled law that any

one of the co-owners can file a suit for possession against an illegal

trespasser. The Trial Court has rightly relied upon the various judgments

of the Supreme Court as per which one co-owner can always file a suit for

eviction on behalf of other co-owners and the onus is on the trespasser or

the person who is being evicted to show that other co-owners had not

agreed to the suit for possession, and which onus has not been discharged

by the appellant. The judgments which have been relied by the Trial Court

of the Supreme Court are the judgments of Sri Ram Pasricha vs.

Jagannath & Ors. AIR 1976 SC 2335, Pal Singh vs. Sunder Singh, AIR

1989 SC 758 and Kanta Goel vs. B.P. Pathak, AIR 1977 SC 1599. I may

note that besides these judgments there are many other judgments

subsequently of the Supreme Court which hold that one co-owner is

perfectly justified in filing a suit for eviction against the tenant and is

entitled to file a suit for eviction of property. This contention of the learned

counsel for the appellant is therefore rejected.

4. The second contention, and which was in fact the main

contention which was argued before the Trial Court and which is also

argued before me, is that, the receipt which is exhibited as Ex.DW-1/1

dated 2.7.1986 gave the legal basis to entitle the appellant to stay in

possession of the second floor on account of the said document creating

tenancy of the terrace floor in favour of the appellant. In this regard the

Trial Court has noted, that the receipt in question was not mentioned in the

written statement, and in the written statement on the contrary the case of

the appellant was that the agreement with late Smt. Urmil Dandona was an

oral one. Further, the Trial Court has noted the fact that the appellant in

his examination-in-chief himself mentioned that the agreement with late

Smt. Urmil Dandona was oral, though I may note that subsequently this

stand was sought to be improved upon by saying that originally it was an

oral agreement and thereafter it was reduced to writing subsequently by

exhibit DW-1/1. The Trial Court has also noted that when one of the

witness to the document Ex.DW1/1 was confronted with the photograph of

late Smt. Urmil Dandona, he could not recognize late Smt. Urmil Dandona,

and on the contrary referred to another lady who was not Urmil Dandona

as Smt. Urmil Dandona. The Trial Court has also noted that the receipt

Ex.DW-1/1 was introduced for the first time only in the evidence of the

appellant/defendant and that too without seeking to get the document

placed on record by means of an application under Order 13 Rule 2 CPC,

and which application was mandatory because the time for filing of the

documents had expired way back when the issues were framed on

27.10.95. Photocopy of Ex.DW-1/1 was filed for the first time through a list

of documents dated 23.10.97, after the respondent/plaintiff closed his

evidence, and the original of Ex.DW1/1 was thereafter brought on record

during the evidence of the appellant/defendant on 15th January, 1998.

Though, the discussion of the Trial court in this regard is quite an elaborate

one, since in my opinion, the same extensively and thoroughly deals with

the subject issue, I am tempted therefore to reproduce the entire

discussion/conclusions and findings which are in paras 23 to 30 of the

impugned judgment and which read as under:

"23. Another limb of the case of the plaintiff is that the defendant has raised unauthorized construction over the roof of the first floor of the property in question in the year 1992 without the consent and permission of Urmil Dandona and thus his occupation is unauthorized and illegal.

24. On the other hand, the defendant in para 3 of the written statement has submitted that the alleged construction was made in the year 1986, after taking permission from late Urmil Dandona but same was not in writing. The rent receipts have been issued to the defendant after a payment of Rs.25,000/- was made to Urmil Dandona and same was to be adjusted at the rate of Rs.200/-p.m. as a future rent. Thus from the pleading of the defendant, it is clear that the permission to occupy and raise the construction over the roof of the first floor of the property in question was not in writing and consequently, late Urmil Dandona has issued the rent receipt in respect of the premises in dispute only after receipt of Rs.25,000/- True to his case, the defendant did not file the receipt of Rs.25,000/- nor such a case was made out in the written statement nor the same was put up by the defendant in the cross-examination of PW-1. Suddenly, the defendant in his chief examination as DW-1

has come out with documents alleged to be a receipt of Rs.25,000/- duly executed by late Urmil Dandona. This document was never placed on the record at the appropriate time nor any permission was taken subsequently. In chief-examination, the defendant as DW- 1 has tried to prove the receipt alleged to be executed by Urmil Dandona on 2.7.86, wherein, it has been stated that Urmil Dandona has permitted the defendant to raise construction of three rooms, kitchen, bath and latrine on the roof of the first floor of property no. 1024 and sum of Rs.25,000/- has also alleged to have been received. Thus, the document is not admissible in evidence firstly, because the same was never placed on the record; secondly, the same is contrary to the pleadings; and thirdly, statement of DW-1 and DW-2 are full of contradictions and amount to making improvement over the case pleaded in the written statement. Fourthly, DW-2 in cross-examination, could not identify late Urmil Dandona while he is claiming that he has met Urmil Dandona and the document Ex.DW-1/1 has been signed by Urmil Dandona in his presence. EX.DW2/P1 is photograph. DW-1 has identified Urmil Dandona as a lady which is marked B while DW-2 in his cross-examination has identified Urmil Dandona as mark A. When DW-2 could not identify the executants on Ex.DW1/1 then it shows that testimony of DW-2 is neither trust-worthy nor same can be relied upon and considered.

26. In para 1 of the written statement, the defendant has further stated,

"The defendant is prepared to pay or tender the rent upto date, to any body who is held entitled by the Courts to realize the same"

In para 2 of the written statement on merits, the defendant has further stated that,

"Very fact that she was bed ridden for few years proves beyond doubt that she was not in a sound disposing mind and was not in a position to execute any Will, which is the creation of the mind of the plaintiff, with ulterior motives and to usurp the properties, left by late Urmil Dandona".

The defendant cannot be allowed to reprobate and approbate. On the one hand, he has admitted that Urmil Dandona was not having sound disposing mind and was not in a position to execute the Will, then how it can be expected that she was in a position to execute Ex.DW1/1 and to permit the defendant to raise unauthorized construction and to occupy the roof of the first floor. From the aforementioned pleadings, it is explicit that the case of the defendant has been ambiguous and vague from the very beginning while the case of the plaintiff is definite.

27. Admittedly, Ex.DW1/1 was never placed on the record for admission and denial. It has come on the record at a very belated stage and that too without permission of the court under Order 13 Rule 2 CPC. The case on the basis of this document was also not put to the plaintiff in his cross- examination. The case of the defendant in the written statement is also that no permission in writing was given by Urmil Dandona for raising construction for occupation of the roof on the first floor. A contention to substantiate the evidence which is necessary has to be pleaded. If there is no pleading, raising construction there is no question of substantiating such new existing contention by evidence. It is well settled that allegation/defence which is not pleaded, even if there is evidence in support of it, cannot be accepted because other side has no notice of it and if entertained if would tantamount to granting unfair advantage to the first mentioned party. The pleading must be such as to give sufficient notice to other party of the case it is called upon to meet. The rules of fair play demand that where a party seeking to establish a contention which is proved would be sufficient to deny relief to the opposite site, such a contention has to b e specifically pleaded and then proved. But if there is no pleading there is no question of proving something which is not pleaded. This is very elementary and this view has been reiterated by the Hon'ble Supreme Court in case of AIR 1979 SC 1652.

29. In the civil suit, when there is no direct documentary evidence to support or to rebut a particular issue or contention of the parties, then the court has to decide the same after weighing the pleadings and available evidence of the parties I the golden scale of pre-ponderance of probabilities. On the basis of the above discussion, the defendant cannot be allowed t prove Ex.DW1/1, and if

same has been placed on the record without permission of the court, and surreptitiously, and the plaintiff has been taken by surprise then the same is in admissible in evidence and cannot be considered for adjudication of the point in issue involved in this case. The defendant has also miserable failed to prove that he is a tenant over the roof of the first floor and his entry is with the permission of late Urmil Dandona. The defendant has also miserably failed to show that he has ever paid sum of Rs.25,000/- to Urmil Dandona or she has ever permitted the defendant to occupy the premises in question.

30. The status of defendant as a tenant is basis on two basic ingredients, firstly, that his occupation over the premises in question must be with the consent, and secondly his occupation over the premises in question is accepted by Urmil Dandona as a tenant. The onus of proving these facts was heavily on the defendant who has miserably failed to discharge. Thus, in view of the above discussion, I hold that the defendant has miserably failed to prove that he is a tenant in the premises, in question, and accordingly, this issue is decided in favour of the plaintiff and against the defendant." (Emphasis added)

5. The learned counsel for the appellant firstly sought to canvass

that the observations of the Trial Court that the receipt is not mentioned in

the written statement and was in fact filed only during the evidence are

incorrect observations and therefore the impugned judgment is clearly

illegal and bound to be set aside. I have with the assistance of the

counsel, gone through the written statement and the only reference in the

written statement with respect to the right of the appellant/defendant qua

the second floor is contained in para 3 of the written statement and the

same reads as under:-

"Para 3 of the plaint is absolutely false, is not admitted and is denied. The alleged construction was made in the year 1986, after taking permission from late Urmil Dandona at the cost of defendant, but the same was not in writing. The rent receipts have been issued to the defendant, after a payment of Rs.25,000/- was made to late Urmil Dandona and the same was to be adjusted at Rs.200/- per mensem as future rent. Each and every plea in the para under reply, which is not expressly admitted, may be treated as denied. The alleged notice dated 16.8.1993 is false, illegal, motivated and without any cause and is also unwarranted. The alleged construction is an old one. The defendant holds valid receipt for the second floor." (Emphasis added)

6. Quite clearly, it is not correct to state that the

appellant/defendant had taken the stand of the receipt Ex.DW1/1 dated

2.7.1996 in the written statement. On the contrary, the para 3 of the

written statement referred to above clearly shows that there was no

agreement in writing with respect to the taking of the second floor on

tenancy by the appellant/defendant. The learned counsel for the appellant

then tried to argue that the agreement was oral at that point of time when

the permission was given, however subsequently, the same was reduced

in writing by virtue of Ex.DW-1/1. In my opinion, this argument is also not

worthy of acceptance because of the fact that not only this stand is

conspicuous by its absence in the written statement, even in the evidence

and that too in examination-in-chief, the appellant himself firstly has said

that the agreement between the parties was oral, and, it is thereafter only

in the cross-examination, that the appellant tried to improve his case. As

already noted above, a document being Ex.DW-1/1 which is the entire

basis of the defence, has come on record, without it, in any manner, being

mentioned in written statement, only after framing of issues, in fact after

the entire evidence of the respondent/plaintiff was completed and the case

was listed for the evidence of the appellant/defendant and lastly without

any application filed under Order 13(2) CPC for permission to place the

same on record. The Trial Court has therefore rightly observed that there

are great doubts as to the authenticity with regard to the Ex.DW-1/1, to

which I cannot but agree, in view of the discussion already given above

and the findings and conclusions of the Trial Court already reproduced

herein before.

7. Learned counsel for the appellant then argued that after all

when a structure is standing since 1986 which is visible to the naked eyes

it should therefore be held that the construction was done with the consent

of the landlady Smt. Urmil Dandona and the respondent/plaintiff should not

be allowed to succeed on the ground that the second floor was not in the

tenancy of the appellant/defendant. I do not agree. The fact of the matter

is that the admitted position which emerges from the record is that the

landlady was an old lady without any family. The respondent/plaintiff was

serving outside Delhi being an Army Officer. In this view of the matter, I do

not think that there is any valid basis to contend that since the

construction exists on the second floor which is visible to the naked eyes,

the same would be taken to have been constructed with the consent of the

landlady. In my opinion, on the contrary, the facts of the case show undue

advantage taken by the appellant/defendant of the age of the landlady

who was generally confined to bed. In fact, I may note that the appellant

himself contended that the landlady was not of sound mind because of her

age and which defence was taken while objecting to the Will of the late

Smt. Urmil Dandona in favour of the respondent/plaintiff.

8. Lastly, the learned counsel for the appellant argued that the

respondent/plaintiff himself admits that property tax has been assessed

retrospectively since 1986 and therefore it should be held that the

construction which existed in 1986 is as per the consent of Smt. Urmil

Dandona and in fact there was a tenancy of the second floor. In my

opinion, this aspect and argument has already been dealt with above and

suffice to say that once the document i.e. Ex.DW-1/1 has been rejected,

and also it has been shown that late Smt. Urmil Dandona was an aged lady

who had no family members and the respondent/plaintiff was posted

outside Delhi, it cannot be said that merely because house tax is said to be

admitted to be payable since 1986, there should be held to be a tenancy of

the second floor in favour of the appellant/defendant. At best the

admission as alleged will show the existence of construction since 1986

and surely the house tax would be paid from the date of construction but

this does not mean that the construction was done after taking second

floor on tenancy by the appellant/defendant.

9 In view of the above, I do not find any merit in the appeal,

which is therefore dismissed leaving the parties to bear their own costs.

The security which is given by the respondent/plaintiff for withdrawing the

amount pursuant to the orders of this Court stands discharged. All interim

orders, if any, are vacated. The Trial Court Record be sent back.

JANUARY 24, 2011                               VALMIKI J. MEHTA, J.
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