Birender Singh & Anr. vs Delhi Cemeteries Committee & Anr.
2011 Latest Caselaw 1260 Del

A-2
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 03.3.2011


+                  RSA No.3/2009 & CM No.31/2009


BIRENDER SINGH & ANR.                  ...........Appellants
             Through: Mr.N.D. Pancholi, Advocate.

                   Versus

DELHI CEMETERIES COMMITTEE & ANR.                 ..........Respondents
             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. (Oral)

1. This appeal has impugned the judgment and decree dated

22.11.2008 which had endorsed the finding of the trial dated

16.9.2005 whereby the suit filed by the plaintiff Delhi Cemeteries

Committee through Mr.A.B.Goodwin its Chairman seeking

possession of the suit property i.e. comprising of two rooms, a

kitchen, bath room in a part of the cemetery located at 3, Prithvi

Raj Road, New Delhi had been decreed in his favour.

2. The case of the plaintiff is that the plaintiff no.1 is the

custodian of the suit property; plaintiff no.2 is the Chairman. Late

Jordan Singh was acting as a Care- Taker and has been serving

plaintiff no.1; he was permitted to use the suit property in the said

capacity. Jordan Singh expired in 1991; thereafter the defendants

have unauthorizedly and illegally occupied the suit property; in

spite of requests and legal notices dated 07.9.1992, 23.12.1992

and 22.3.1993 the suit property has not been vacated. Suit was

accordingly filed.

3. Defence of the defendant was that defendant no.2 was a

tenant qua the suit property at monthly rent of Rs.200/- excluding

electricity and water charges. Preliminary objection on the

valuation of the suit property; the suit not having been filed

through a competent person had also been taken.

4. On the pleadings of the parties, the following six issued were

framed:

1.Whether the suit has not been filed by the duly authorized person? OPD

2.Whether this court has got no jurisdiction to try the suit? OPD

3.Whether the suit has not been valued properly for the purpose of court fee and jurisdiction? OPD

4.Whether the proper court fee has not been filed on the plaint ?OPD

5.Whether the plaintiff is entitled to claim relief as prayed for ?OPP

6.Relief.

5. Two witnesses had been examined on behalf of the plaintiff.

They had been examined and discharged; pursuant thereto an

application had been filed for recalling the said witnesses. PW-2

had been thereafter cross-examined and discharged but PW-1

could not cross-examined. The order permitting the recall of the

said witness had been passed on 15.8.2003 which had categorically

stated that only one opportunity would be granted to the defendant

to cross-examine the witnesses. Perusal of the record shows

otherwise. It evidences that on 8.3.2003 and again on 24.3.2004

counsel for the defendant had sought adjournment to cross-

examine the witnesses of the plaintiff. Time had been granted for

02.6.2004. Meanwhile in the intervening period an application had

been filed for early hearing on which date record shows that both

the PWs were present but the said application had been dismissed.

On 02.6.2004 PW-2 had been cross-examined and discharged.

Nothing has been recorded in this order dated 2.6.2004 to support

the submission now made before this court that PW-1 was not

present on that day and that is why he was not cross-examined; no

such objection has been recorded in the order sheet. Evidence of

the plaintiff stood closed vide a separate statement; even at that

point defendant did not urge or object that PW-1 yet remained to

be cross-examined.

6. The trial judge vide judgment and decree dated 16.9.2005

has dismissed the suit of the plaintiff. It was primarily on the

contention that the suit has not been verified and signed by duly

authorized person; further the suit has not been properly valued

for the purpose of court fee. Even up to this stage no objection was

taken by the defendant that a valuable right had been lost to him of

non cross-examination of PW-1. The only answer which can be

gauged is that the defendant had given up his right to cross-

examine PW-1.

7. The impugned judgment had decreed the suit. It had relied

upon the version of PW-1 although admittedly as per the record

PW-1 had not been cross-examined. Impugned judgment had noted

that the fault for not cross-examining PW-1 was primarily upon the

defendants. Record shows that PW-1 had, in fact, been discharged

on 11.12.2001. On this day the defendants were ex parte. They

had chosen not to appear. Thereafter on an application filed by

them seeking recalling of the witnesses of the plaintiff; vide order

dated 15.8.2003 permission had been granted and one last

opportunity had been granted to the defendants to cross-examine

witnesses of the plaintiff. Record further shows that several

opportunities had been granted to the defendant and he had been

taking dates to cross-examine the witnesses of the plaintiff. Even

on 02.6.2004 when the evidence of the plaintiff stood closed, there

was no objection made by the defendant (although he was

represented by his counsel) that PW-1 was yet to be cross-

examined. Court in these circumstances had rightly adverted to

the testimony of PW-1. In AIR 1955 Himachal Pradesh 57 Bijai

Ram Kanshi Ram & Anr. Vs. Jai Ram Ganga Ram & Anr. where the

statements of the witnesses of the plaintiff were recorded and the

defendant in spite of notice did not appear either in person or

through his pleader to cross-examine the witnesses; the result was

that the evidence of these witnesses must be accepted unless there

are some inherent probabilities in their versions.

8. The defence of the defendant that he is a tenant has been

rejected by both the courts i.e. by the trial court as also by the first

appeal court. These are two concurrent findings against the

defendant. On a specific query put to the learned counsel for the

appellant as to what is the status of the defendant as on date, the

appellant has no answer. Admittedly, father of the appellant

Jordan Singh had been appointed as a care-taker of the plaintiff.

The case of the plaintiff is that the Jordan Singh was a licencee

who had been permitted to use the suit property only in that

capacity; the appellant who is the son of Jordan Singh had

unauthorisedly occupied the suit property.

9. Ex.PW-1/7 proved through PW-1 is the minutes of the

emergent meeting of the Delhi Cemeteries Committee dated

28.4.1994 wherein it was resolved that Mr.A.B.Goodwin, the

Chairman was authorized to sign and verify the plaint and all

pleadings on behalf of the committee qua the ejectment of

Mr.Jordan Singh, Mr. Birender Singh and his family from a portion

of the suit property comprised in the cemetery on Prithvi Raj Road,

New Delhi. Plaint had been signed and verified by plaintiff no.2

namely A.B. Goodwin described as Chairman of the Delhi

Cemeteries Committee.

10. PW-2 was the Honorary Secretary of the Delhi Cemetery

Committee. He had on oath deposed that the defendant is in illegal

occupation of the suit property. The order of the Rent Controller

Sh. R.K.Gauba dated 24.4.1995 (Ex.PW-2/1) had been proved

through him which had evidenced that the status of the defendant

in the suit property was only that of a trespasser; he had not been

recognized as a tenant. The suit property which is in unauthorized

occupation of the defendant has been demarcated in the site plan

in the red portion in Ex. PW-2/2. Admittedly the defendant had no

documents to support his submission that he was a tenant. Letter

Ex.PW-2/6 was written to the plaintiff no.2 by defendant no.1

(widow of Jordan Singh) wherein she had stated that her son

Birender Singh is looking after the duties of care taker in the

Cemetery and since they had sentimental attachment to the house

and since her son was carrying out the duties of the Care-Taker the

house allotted to them should be allowed to be retained by them.

This letter of defendant no.1 clearly evidences that after the death

of her husband she along with her son and daughter-in-law were

unauthorizedly occupying the suit premises; admittedly her

deceased husband was working as a Care-Taker; she along with

her son and daughter in law wished to retain the suit property only

because of sentimental attachment. Even in this letter she was

not able to give any legal status to herself in the suit property.

DW-1 in his cross-examination had admitted that the plaintiff had

been asked by the government to run the cemetery; he admitted

that he has not paid rent since the death of his father; he admitted

that he has no proof to show that he had paid rent. Court below

had thus rightly arrived at the finding that the defendants are

nothing but unauthorized occupants in the suit property.

11. The first court i.e. the trial judge had dismissed the suit of

the plaintiff primarily on the ground that the suit had not been

signed, verified and filed through an authorized person and was

under-valued. The substantial questions of law urged before this

Court are also bordered on these submissions. They are, however,

negatived. Ex.PW-2/3 is the letter by the Government of India,

Ministry of Defence, through its Deputy Secretary to the Counselor

of the High Commission of the United Kingdom informing them

that it is primarily the concern of the U.K. Government to maintain

and manage Cemeteries in Delhi and it was open for them to enter

into any working arrangement with the Indian Church Trustees or

any other Association in India to the said effect. Ex.PW-2/4 is a

letter by the British High Commission giving information that all

necessary authority and cooperation would be given to the Delhi

Cemeteries Committee. It is endorsed to Rev.R Smyth, the

Chairman of the Delhi Cemetery Committee. These documents

show that there was an internal arrangement between the British

High Commission and the Delhi Cemeteries Committee which in

fact had been authorized to carry out the maintenance and to look

after these cemeteries. PW-1 had identified the signatures of

plaintiff no.2 on the plaint.

12. Reliance has been placed upon AIR 1965 SC 1506 Brahma

Nand Puri Vs. Neki Puri as also AIR 1931 Cal 76 John Boisogomoff

Vs. Manmatha Nath Mullick to support the submission that the

plaintiff in a suit for ejectment must establish his title; this is

undisputed proposition of law.

13. Issue no.3 had been specifically framed as to whether the

suit has been properly valued for the purpose of court fee and

jurisdiction. The impugned judgment had noted that the suit

property is a part of the cemetery on a protected land. Premises

had been occupied by the deceased Care-Taker only as a part of his

service and employment. The cemetery itself could not be

assigned any market value; it had no market value. These are

admitted pleadings. These fact findings call for no interference.

Reliance by the learned counsel for the appellant in the judgment

reported in AIR 1962 Punjab 479 Kucha Chellan Panchayat Vs.

Nandu Mal Mool Chand is misplaced; it has no application.

14. Learned counsel for the appellant has also placed reliance

upon a judgment of the Apex Court reported in JT 2001 (10) SC 83

Maneklal Mansukhbhai Cooperative Housing Society Ltd. Vs.

Rajendra Kumar Maneklal Shah to support his submission that a

society which is unregistered cannot file a suit. Averments in the

plaint have been perused. Respondent/plaintiff has nowhere

described itself as a society. It is a committee. This judgment is

inapplicable.

15. The substantial questions of law have been embodied in the

para 4; they read as follows:

"i. Whether the suit filed by the plaintiff can be decreed on the weakness of the defendant?

ii. Whether a suit for possession is maintainable without proving the title of the property when the same has not been filed on the basis of prior possession?

iii. Whether a suit for possession of immovable property is maintainable without filing the proper court fee? iv. Whether the "Appeal" is equivalent to the word "Pleading"? v. Whether the testimony of a witness who did not come forward for his cross-examination could be relied upon? vi. Whether an unregistered society can file a suit for possession? OPP vii. Whether an appeal can be filed by the unregistered society without any resolution?

viii. Whether the photostate copy of a demni official letter is admissible in evidence?

ix. Whether the title of an immovable property can be proved by a certificate issued on the behest of a party? x. Whether the learned Add. Distt Judge has erred in not noticing and considering the points of arguments raised and submitted by way of written submissions/arguments during the course of arguments before him?"

16. No such substantial question of law has arisen. Appeal as also

pending application is dismissed in limine.

INDERMEET KAUR, J.

MARCH 03, 2011 nandan