Shri Ishwar Singh & Anr. vs Shri Rohtash Singh & Anr
2011 Latest Caselaw 1889 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment reserved on: 28.03.2011
                        Judgment delivered on: 31.03.2011

+     RSA No.62/2006 & CM Nos 7239/2010 & 10110/2010


SHRI ISHWAR SINGH & ANR.               ...........Appellants
              Through: Mr.P. Norula & Ms.Prerna Mehta,
                       Advocates.
              Versus

SHRI ROHTASH SINGH & ANR               ..........Respondents
             Through: Mr. A.K. Singla, Sr. Advocate with
                      Mr. J.K. Sharma, Advocate.

      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.

1 This appeal has impugned the judgment and decree dated

03.01.2006 which had reversed the findings of the trial Judge dated

20.09.2005. Vide judgment and decree dated 20.09.2005, the suit

filed by the plaintiff Rohtash Singh seeking recovery of possession

in respect of two plots i.e. plots No 132 & 133 measuring 250

square yards situated at Karawal Nagar, Abadi of New Sabha Pur,

Illaka Shahdara, Delhi as also recovery of Rs.1,70,000/- had been

dismissed. Vide the impugned judgment, the suit of the plaintiffs

stood decreed.

2 The case of the plaintiffs as is evident from the averments

made in the plaint is that the father of plaintiff No. 1 had on

06.02.1989 purchased plot No. 132 of the aforenoted suit property.

Plaintiff No. 2 had purchased plot No. 133 on the same day. These

plots were purchased through the defendants; defendant No. 1 was

a witness to the aforenoted documents of purchase. In November,

2001, the defendant had threatened to encroach upon the property

of the plaintiffs. In January-February, 2002, they had encroached

upon the land and committed criminal trespass. Suit No. 973/2002

was filed by the defendants seeking an injunction against the

plaintiffs; the plaintiffs had made a statement that the defendants

would not be dispossessed without due process of law; suit of the

defendants stood withdrawn. A second suit was thereafter filed by

the defendants seeking permanent injunction and declaration; the

plea set up by the defendants was that they had become owners by

adverse possession. The defendants have illegally trespassed into

the property of the plaintiffs; they are also liable to pay damages @

Rs.10,000/- per month. Present suit was accordingly filed.

3 In the written statement, the defence set up was that the suit

is not maintainable. The contention of the defendants was that the

said two plots had been purchased for a consideration of

Rs.1,40,000/-; the plaintiffs did not have the money to pay the said

consideration; defendant No. 1 had advanced a sum of Rs.70,000/-

to the plaintiffs; on account of family relations, no receipt was

exchanged between the parties; parties had agreed that the

physical possession of the suit property would be handed over to

the defendants on a rental basis; the defendants are tenants in

their own right; they cannot be evicted.

4 On the pleadings of the parties, the following five issues were

framed:-

1. Whether the plaintiff is entitled for a decree of possession as prayed for? OPP

2. Whether the plaintiff is entitled for a decree of Rs.1,70,000/- along with interest, if so at what rate? OPP

3. Whether the suit is time barred and liable to be dismissed? OPD.

4. Whether the suit is not maintainable as it is barred by resjudicata? OPD

5 Whether the suit is hit by under Order 2 92) CPC? OPD.

5 One PW was examined on behalf of the plaintiffs. The site

plan of the suit property had been proved as Ex. PW-1/A. In

defence, the defendants had adduced their evidence. On the basis

of oral and documentary evidence produced in the courts below,

the trial Judge was of the view that the plaintiffs have failed to

discharge the onus to prove that they had become owners of the

suit property in terms of the documentary evidence relied upon by

them; i.e. a power of attorney, Will, agreement to sell etc. do not

transfer title; suit of the plaintiffs stood dismissed.

6 In appeal, the impugned judgment had reversed this finding.

The impugned judgment had noted that the plaintiffs have become

owners of this property vide the aforenoted documents relied upon

by them dated 06.02.1989; PW-1 had averred that the physical

possession of the suit land had also been handed over to them

contemporaneously with the execution of the said documents; the

defendants had failed to show their status in the suit property;

testimony of DW-1 was held to be unreliable and no credence was

given to his version. Suit of the plaintiff stood decreed.

7 This is a second appeal. It had been admitted and on

14.02.2011, the following substantial question of law was

formulated. It reads as under:-

"Whether the findings in the impugned judgment dated 03.01.2006 are perverse? If so its effect?"

9 On behalf of the appellant it has been urged that the

judgment of the trial court is illegal and arbitrary. The impugned

judgment in para 14 had noted that the plaintiffs have failed to

bring on record any evidence to establish the fact that the

defendants had encroached upon the suit land in January-February,

2002. Attention has also been drawn to para 16 of the impugned

judgment wherein it had been noted that no evidence had been

brought on record by the plaintiffs to prove his claim of damages @

Rs.10,000/- per month; it is submitted that thereafter the Court

having awarded damages @ Rs.5,000/- per month is a gross

illegality. For this proposition, reliance has been placed upon a

judgment of this Court reported in 122 (2005) DLT 629 National

Radio And Electronic Co. Vs. Motion Pictures Association. It is

further pointed out that PW-2 had given his affidavit by way of a

rebuttal evidence; this evidence was rightly rejected by the trial

Judge; the impugned judgment could not have relied upon it as PW-

2 had not come into the witness box in chief; evidence in rebuttal

of such a witness could not have been read. For all the aforenoted

reasons, the judgment being perverse it is liable to be set aside. It

is further submitted that the first appellate court while reversing

the findings of the trial Judge was required to record reasons in

arriving at the reversed finding which it has not done. For this

proposition, reliance has also been placed upon JT 1999 (3) SC 163

Kondiba Bagabu Kadam Vs. Savitri Bail Sopan Gujjar & Ors. as also

another judgment reported in JT 1999 (3) SC 168 Allahabad Paper

Mills Corporation Ltd. & Others Vs. Bengal Paper Mills

Corporation & Others.

10 Arguments have been countered. It is pointed out that the

judgment suffers from no perversity. Findings of fact can be

interfered only if there is substantial question of law; in this case

no substantial question of law has arisen.

11 Record has been perused. The case of the plaintiff is that the

father of plaintiff No. 1 had purchased the suit property vide

agreement to sell, Power of attorney, receipt and Will dated

06.02.1989. This was qua plot No. 132. Plaintiff No. 2 had

purchased the plot No. 133. The defendants have not denied this

factum. It has in fact been admitted that the plaintiffs had

purchased the aforenoted plots; defence of the defendants is that

they had lent a sum of Rs.70,000/- to the plaintiffs for purchase of

the said plots; parties had agreed that in terms of the aforenoted

money advanced by defendant No. 1 to the plaintiffs, defendant No.

1 would retain the physical possession of the premises as a tenant.

Defendant has also admitted that no rent thereafter was demanded

by the plaintiffs; no document to this effect was also executed

between the parties.

12 This version of the defendants is palpably false and rightly

held so in the impugned judgment. DW-1 in his cross-examination

has admitted that he has no documentary proof to show that he

had paid Rs.70,000/- to Rohtash Singh; no such entry had also been

maintained in his books of record; he has admitted that documents

of purchase of the plaintiffs dated 06.02.1989 had been witnessed

by defendant No. 1 namely Jai Bhagwan. DW-1 had on oath

deposed that on the date of execution of the aforenoted documents

i.e. for plot No. 132 in favour of father of plaintiff No. 1 and plot

No. 133 in favour of plaintiff No. 2, the physical possession of the

suit property had also been handed over to the plaintiffs. It is also

not in dispute that the aforenoted documents had been attested by

defendant No. 1 as a witness. It is also admitted that two suits had

been filed by the defendants. The first suit was suit No. 973/2002

which was a suit for injunction had been withdrawn on the

statement of the plaintiffs that they would not dispossess the

defendants without due process of law. The second suit filed by the

defendants had sought relief of permanent injunction and

declaration; in this case the defendants had claimed title by way of

adverse possession. Stand of the defendants is unsure and

confused. He is claiming tenancy and adverse possession in the

same breath; in any eventuality, he has not been able to prove

either tenancy or his claim of adverse possession.

13 The plaintiffs have by cogent and clear evidence established

their claim in the suit property. Along with the documents i.e.

power of attorney, registered Will, GPA and receipt PW-1 had

specifically averred that the physical possession of the suit

property had been handed over to the plaintiffs. A Bench of this

Court in 94 (2001) DLT 841 Asha M. Jain Vs. Canara Bank &

Others has recognized sales by means of power of attorney; if these

documents are coupled with transfer of possession, such a mode of

transfer of immoveable property has been given recognition in

Delhi. This has been reiterated by a Bench of this Court in Indian

Institute of Finance Vs. Shakti Tower (P) Ltd. & Anr in RFA

No.99/2005 decided on 10.10.2006.

14 The contention of the plaintiffs that the defendants had

encroached upon the suit land was also clear and categorical; the

plaintiffs were however not able to prove the exact date of

encroachment. The status of the defendants in the suit property of

the plaintiff was nothing but that of trespassers; in these

circumstances, the plaintiffs were rightly granted a decree of

possession. This finding calls for no interference.

15 The claim of Rs.1,70,000/- (as pre-suit amount qua damages)

claimed by the plaintiffs had been dismissed. The impugned

judgment has noted that apart from the statement of PW-1, there

was no other evidence forthcoming to establish the claim of

quantum of damages claimed @ Rs.10,000/- per month. The

impugned judgment had granted damages @ Rs.5,000/- per month;

it had relied upon the "size of the property involved". The suit

property which is admittedly in the unauthorized occupation of the

defendants are two plots i.e. plots No. 132 & 133 which comprise

of one room with boundary wall; area is 260 square yards. Para 8

of the affidavit by way of evidence of PW-1 states that the

defendants are liable to pay damages @ Rs.10,000/- per month; the

plots in the same area can easily fetch a monthly rent of

Rs.15,000/- per month. In the entire cross-examination of PW-1, not

even a suggestion has been given to this witness that this amount

has not been correctly evaluated. This finding having remained

unassailed, it cannot be discredited. This is clearly not a case of no

evidence. It is also not in dispute that judicial notice can be taken

by the Court of escalating rates of the property prices including

rentals. In Manu/DE/3746/2010 Ms. Vanita Vohra Vs. Voith Paper

Fabrics India Ltd., a Bench of this Court had recognized this fact; it

was reiterated that the courts bear in mind that for grant of mesne

profits, judicial presumption and judicial notice can be taken with

respect to the constantly increasing rents in urban areas or

cosmopolitan cities. Damages awarded @ Rs.5,000/- per month in

favour of the appellants are fair; this fact finding calls for no

interference.

16 Last argument urged by learned counsel for the appellants

was that the version of PW-2 cannot be relied upon as he had only

adduced evidence in rebuttal is belied by the record. On

06.07.2005, PW-2 had tendered his affidavit by way of evidence; no

cross-examination had been affected of this witness; thereafter PW-

2 had tendered rebuttal evidence.

17 There is no perversity in the finding in the impugned

judgment. Substantial question of law is answered in favour of the

respondents and against the appellants. There is no merit in this

appeal. Appeal as also pending applications are dismissed.

(INDERMEET KAUR) JUDGE MARCH 31, 2011 A