Shanti Devi & Orthers vs Laxmi Devi & Others
2011 Latest Caselaw 2757 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment reserved on : 18.5.2011
                               Judgment delivered on : 23.05.2011

+            R.S.A.No. 48/2008 & CM No. 2406/2008

SHANTI DEVI & ORTHERS                            ...........Appellant

                         Through:    Mr.G.P. Thareja, Advocate.

                   Versus

LAXMI DEVI & OTHERS                             ..........Respondent
                 Through:            Mr.   Pradeep   Dewan,    Sr.
                                     Advocate along with Mr. Rajiv
                                     Samaiyar, 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

01.12.2007 which had reversed the finding of the trial judge dated

21.07.2005. Vide judgment and decree dated 21.07.2005, the suit

filed by the plaintiff Sh. Kailash Nath Shukla (now being

represented through his LR‟s- Laxmi Devi & Ors.) seeking

possession of the suit property (i.e. 221 sq. yards of land bearing

plot nos. 108-109-110 in Khasra no. 53/25 situated at Guru Ram

Dass Nagar, Delhi 32 (depicted in red colour in the site plan) had

been dismissed. Impugned judgment had reversed this finding;

suit of the plaintiff stood decreed.

2. The plaintiff claimed himself to be the owner of the

aforenoted suit property. It was bounded as follows:-

North-plot nos. 105-106-107 (now a street)

South-plot nos. 111-112-113

East-Road

West-Street

3. The contention of the plaintiff was that he had purchased

these said pieces of land from Dr. Balwant Singh , the sole

Proprietor of Harmender Collonisation Board, vide a registered

sale deed dated 25.09.1956 (Ex. PW 1/1); possession of the same

was handed-over to him on the same date. Plaintiff constructed

one room and a boundary wall therein. He was in service with

Bharat Heavy Electricals Ltd (BHEL), Haridwar where he was

living with his family. He had a intention to return to Delhi

permanently; on his return, he was surprised to find that the

defendants were in illegal possession and occupation of the suit

land; unauthorized construction was also raised by them; in spite

of requests, the suit land was not handed-over to him. Present

suit was accordingly filed.

4. Defendants contested the suit. It was stated that the

plaintiff had no right, title or interest in the suit land. Preliminary

objection about limitation had been taken; in para 5 it was

contended that the defendants have nothing to do with plot nos.

108-109-110 which is owned and possessed by some other person;

plaintiff is not the owner of the said plots;; it was denied that on

the North side of the plot nos. 108-109-110, there is a street. It

was contended that an earlier suit filed by the plaintiff against

Ram Chander (predecessor in interestof the defendant) had also

been dismissed.

5. On the pleadings of the parties, the following 11 issues were

framed:-

1) Whether the suit is barred by limitation?

2) Whether the suit is barred by res judicata?

3) Whether plaintiff has no locus standi to file the

present suit?

4) Whether the plaintiff has no cause of action to file the

present suit against the defendant?

5) Whether the suit is not properly valued for purposes of

court fees and jurisdiction?

6) Whether plaintiff is owner of plot No. 108,109,110 in

Khasra no. 53/25 measuring 221 sq. yards at Guru

Ram Dass Nagar?

7) Whether the defendant has taken over forcible

possession of the plots no. 108,109,110?

8) Whether the location and number of plots no. 108,109

and 110 have been wrongly mentioned by the plaintiff

in the site plan?

9) Whether the plaintiff is entitled for possession of these

plots?

10. Whether the defendants are in possession of plots no.

105,106 & 107?

11. Relief.

6. Oral and documentary evidence was led.

7. Trial court was of the view that the suit was within

limitation. This finding was returned in favour of the plaintiff.

However, on merits, the suit of the plaintiff was dismissed. Ex.

PW 1/1, PW 5/1 , DW 1/1, DW 5/1, DW 6/2 and DW 7/2 had been

adverted to hold that there was nothing on record to show that

plot noss. 105-106-107 had merged with the gali; suit of the

plaintiff stood dismissed.

8. In appeal, this finding was reversed. The impugned

judgment had decreed the suit of the plaintiff.

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

19.01.2010, the following substantial question of law was

formulated:-

1) Whether the findings of the Appellate Court are perverse

and not based on sound principle of appreciation of

evidence and law?

2) Whether the Courts below adopted right approach while

coming to the conclusion that suit of the respondent was

within the period of limitation?

10. On behalf of the appellant it has been urged that the

impugned judgment suffers from a perversity; it has reversed the

finding of the trial judge which was based on cogent and coherent

documentary evidence on mere surmises and conjectures;

documentary evidence has to be read over and above the oral

testimony of the witnesses. Attention has been drawn to the sale

deed executed in favour of the plaintiff qua suit plot nos. 108-109-

110; attention has also been drawn to the testimony of PW-5

(purchaser of plot nos. 111-112) wherein he had admitted that on

the north side of this property purchased by him, there is property

no. 109 and 110; it is pointed out that PW -5 had admitted that on

plots bearing no. 111 and 112, the Punjab National Bank exists. It

is pointed out that even in the memo of parties, the address of

defendant no. 2 has been depicted as plot nos. 105, identity of the

suit land of the defendant has been recognized by the plaintiff; it

is also difficult to imagine that this plot which is 21 ft in width

could have been merged with the gali which is only 16 ft in width.

Attention has been drawn to Ex. PW 8/1 dated 14.11.1968, which

is a house tax demand letter issued to Ram Chander (predecessor

in interest of the defendant) as also Ex. PW 8/2 dated 10.08.1970

evidencing payment of house tax by Ram Chander substantiating

the submission of the appellant that this suit land existed in the

year 1970. The impugned judgment returning a finding in favour

of the plaintiff on limitation is also a perversity. It is pointed out

that the suit has been filed by the plaintiff on 18.04.1983,

limitation would have commenced at best from 14.11.1968; when

Ex. DW 8/1 had been served upon the defendant or latest by

10.08.1970 (Ex PW 8/2) when the defendant had paid the house

tax. Suit was filed after a delay of 12 years i.e. on 18.04.1983, it

was time barred. Impugned judgment had not dealt with this

submission of the learned counsel for the appellant. This has also

raised a substantial question of law.

11. Arguments have been rebutted. It is pointed out that on no

score does the impugned judgment call for an interference. The

suit is within limitation; attention has been drawn to the

averments in the plaint as also the testimony of DW-1 wherein he

had admitted that when he had purchased the suit land, there was

nothing constructed thereon meaning thereby that when he had

purchased his property on 22.04.1971 (Ex. DW 1/1), it was vacant

land; contention being that the unauthorized construction was

raised by the defendant admittedly after 22.04.1971; suit filed on

18.04.1983 was within a period of 12 years and thus within time.

On merits also, attention has been drawn to the testimony of DW-

2, DW-3 and DW-8; it is pointed out that land, in fact, has since

been acquired and the compensation has been received by the

defendant; impugned judgment does not call for any interference.

12. Record has been perused. Court shall answer the query on

limitation although this has not been formulated as substantial

question of law. Nevertheless it is the duty of court to go into the

question of limitation in view of the mandate of Section 3 of the

Indian Limitation Act, 1963. This question had been answered by

the Trial Judge in favour of the plaintiff while disposing of issue

no. 1. The grounds of appeal pressed before the first appellate

court show that this contention was never pressed; limitation was

never an argument urged before the first appellant court. This

being a mixed question of law and fact and a second appellate

court not being the third fact finding court it is de-barred from

delving into facts. Be that as it may; testimony of PW 1 clearly

shows that at the time when he had purchased this plot (i.e. on

22.04.1971), there was no construction thereon meaning thereby

that the construction was admittedly raised hereinafter i.e. after

22.04.1971;. Suit filed on 18.04.1983 was well within the period

of 12 years. This has been correctly appreciated by the trial

judge. Finding on limitation as returned by the trial judge does

not call for any interference. Suit was within limitation.

13. On merits also, this court is not inclined to interfere with the

findings of fact arrived at in the impugned judgment. The issues

framed had been adverted to. Impugned judgment had correctly

noted that the provisions of Section 110 of the Indian Evidence

Act are not applicable to the facts of the present case. Section

110 of the Indian Evidence Act reads as follows:-

"110-Burden of proof as to ownership- When the

question is whether any person is owner of anything of

which he is shown to be in possession, the burden of proving

that he is not the owner is on the person who affirms that he

is not the owner."

14. Plaintiff had averred that he is the owner of plot nos. 108-

109-110; his possession had been illegally usurped by the

defendant who had raised an unauthorized construction thereon;

suit for possession had accordingly been filed by the plaintiff.

Applicability of Section 110 of the Indian Evidence Act was clearly

excluded. It had no application.

15. Ex. PW 1/1 is the registered sale deed dated 25.09.1956 qua

plot nos. 108-109-110, the boundaries noted in the sale deed read

as follows:-

1) North side -shop no. 105-106-107.

2) South side- plot nos. 111-112 and 113.

3) East side -road of colony.

4) West side -gali.

16. Plaintiff had specifically averred that the possession of the

plot had been handed over to the plaintiff. Defendant is claiming

his title of plot noss. 105-106-107 vide sale deed Ex. DW 1/1. The

boundaries shown in the said sale deed read as under:-

1) North side -road of the colony.

2) South side- plot noss. 108-109 and 110.

3) East side- bazaar.

4) West side- road of the colony.

17. PW-5 is the purchaser of plot noss. 111 to 113. He had

admitted that he had purchased this plot vide registered sale deed

Ex. PW 5/1 on 28.10.1971; on the North- is property no. 109-110;

on the south- property no. 117-118; on the east- is the road; on the

west- is the plot noss. 113-114; on plot nos. 112 and 113, Punjab

National Bank exists i.e. on his plots. Plaintiff had purchased this

piece of land ( plot nos. 108-109-110) vide Ex PW 1/1. There is no

dispute to this document. Issue before the court was whether the

land in possession of the defendant were the plots of the plaintiff

(plot nos. 108-109-110) or whether it was the plot of the

defendant which he had purchased in his own right i.e. plot nos.

105-106-107. The identity of the suit land was the crux of the

dispute before the court below.

18. Disputed plot is Plot nos. 108-109-110. DW-2 had admitted

that the Punjab National Bank is adjacent to the disputed plot but

he could not tell the number; it may be property no. 108-110. DW-

3, in his cross-examination, had admitted that plot nos. 105-106-

107 had been acquired by the DDA; DW-8, the Inspector of the

Geeta Colony, had produced the record including the notice dated

14.07.1968 Ex. DW 8/1 (received by the predecessor in the

interest of defendant) pertaining to property no. 105-106-107. In

his cross examination, DW-8 had admitted that the record of this

property (property no. 105-106-107) is only up to the year 1984,

there is no survey conducted after that and no assessment has

been made because the said plots i.e. plot nos. 105 to 107 had

become the part of the street.

19. The vehement contention of the learned counsel for the

respondent/plaintiff is that these plots i.e. plot noss. 105-106-107,

after 1984 had, in fact, merged into the street and that is why

there is no survey report of MCD qua this suit land after 1984; it

had become the part of the public street. This submission of the

appellant has considerable force. It is also relevant to state that

the plaintiff Kailash Nath Shukla had filed an earlier suit (Ex. PW

2/1) seeking perpetual injunction wherein in para 1, he had stated

that he had purchased suit plot nos. 108-109-110 from one

Balwant Singh; in the corresponding para of the written

statement, it was admitted that the plaintiff is in possession of plot

nos. 108-109-110). This written statement had been filed on

21.11.1968 meaning thereby that the possession of the suit land

(plot no. 108 to 110) qua the plaintiff stood admitted by the

defendant at that time. In the present plaint also, the plaintiff in

para 5 has specifically averred that the defendant had raised an

illegal construction in his plot (plot nos. 108-109-110); in the

corresponding para of the written statement, it was stated that

the defendants had nothing to do with the aforenoted plots which

are owned and possessed by some other person. The identity of

the suit land had not been disputed.

20. Finding returned in the impugned judgment is as follows:-

"Before proceeding further, certain facts have to be

noticed which have very important bearing upon the matter.

The property in question formed part of land admittedly

owned by one Dr. Balwant Singh who was a colonized and

the proprietor of M/s Harminder Colonization Board, Delhi.

The colony developed by him was unauthorized. This is

evident from the letters sent by DW2 Sh. Bir Dutt to the

original Plaintiff and exhibited as Ex. DW 2/P1 and DW 2/P2.

Thirdly, no site plan have been issued by Dr. Balwant Singh

proprietor of M/s Harminder Colonization Board, Delhi at

the time of execution of the sale deed (as deposed by PW 1

Shri. Kailash Nath and the fact that no original site plan has

been filed by the defendant no. 1 as having been issued to

Smt. Sohan Devi by Dr. Balwant Singh alongwith sale deed

dated 1.12.1955). It is also noted that no area plan has been

filed on the record or produced.

What is to be gathered from these facts is that Dr. Balwant

Singh owner of vast tracts of land developed a colony in village

Khureji by the name of Guru Ram Dass Nagar, demarcated plots

and sold them to various person including Smt. Sohan Devi in

1955 and the plaintiff on 24.09.1956, the layout of the colony was

not approved at the time the colony had been demarcated by Dr.

Balwant Singh, this is apparent from the communication of DW 2

to the plaintiff dated 15.01.1976 (Ex DE2/P2) where it has been

recorded that the colony had been declared as unauthorized but

the Government of India, Ministry of Work and Housing in their

report for the year 1971-72 had published that the regularization

polan of the colony had been approved and that they were still

fighting for approval. Therefore, upto the year 1976 there was no

approved area plan for the colony. The non issuance of site plan

alongwith sale deed has clearly created confusion as in other

places in Delhi where colonizers said plots, according to them in

sequence of various sizes and measurement to various persons,

but facing shortage of ..at site upon actual measurement and

physical demarcation.

In the present case the plaintiff has admitted that the site

plan had been given to him by Dr. Balwant Singh and the same is

Ex. PW 1 / 2. This site plan signed by Dr. Balwant Singh

sanctioning construction has been first signed on 16.12.1957.

Thereafter, it has been attested by him on 19.02. 1969. The

defendants as noticed above have not produced such attested site

plan issued to Smt. Sohan Devi. If nothing else this fact would

reveal that the demarcation of land at site had taken place at

different points of time and therefore, the exact position at site

was possibly not known till actual possession and demarcation had

taken place even in the present case.

While the plaintiff Shri. Kailash Nath has deposed that he

had taken the possession of the land in 1956 itself there is no such

evidence on behalf of Smt. Sohan Devi. The defendants have

claimed their title from Shri. Ram Chander who came on the

scene vide sale deed of the year 1966. By then the confusion had

clearly arisen for it led to the first round of litigation between the

plaintiff and the owners of plot no. 105,106 and 107. Ex PW 2/1 is

the amended plaint filed by Shri. Kailash Nath Shukla though his

attorney against Shri. Ram Chander seeking perpetual injunction

against the defendant restraining the defendant from trespassing

upon the room and plot built thereupon belonging to the plaintiff

Shri. Kailash Nath Shukla bearing plot no. 108,109 and 110

measuring 221 sq. yards. Shri. Ram Chander had filed his written

statement which is Ex. PW 2/2 dated 21.11.1968 . It may be

mentioned that the suit was originally filed on 11.10.1968 and

amended on 14.02.1969. In this written statement despite the

preliminary objections being raised that the plaintiff was not in

possession of the room and that the suit was not maintainable, in

para no. 1 on merits Sh. Ram Chander admitted „that the plaintiff

is in possession of plot no. 108,109 and 110.‟. In para no. 2 he has

stated that the defendant was the purchaser of plot no. 105, 106

and 107 and was in possession of these plots from the time of sale

and was not trying to trespass into the plot no. 108, 109 and 110.

He claimed that the room was build on his plot and was in the

possession of the defendant. Yet, he made a statement upon

which, vide Ex. PW 2/3, the suit was decreed in favour of the

plaintiff and against the defendant. Ram Chander restraining him

from trespassing upon the plot of land bearing no. 108, 109 and

110. This restraint order was issued on 1969.

That suit would not have ended in favour of the plaintiff

there in who was the original plaintiff in this case, had not the

plaintiff retained his possession on the plots. Therefore, it has to

be concluded that on 01.03.1969, the position stood cleared that

the plaintiff‟s plots 108,109 and 110 existed at site and the

plaintiff was in its possession at that time. It is important to note

that the special attorney of Kailash Nath Shukla was none other

than the original colonizer Dr. Balwant Singh.

The house tax records brought on record by the defendants

do not help the defendants. That notice is dated 12.11.68. The

suit for perpetual injunction already stood filed by them. In fact

the written statement was filed on 21.11.1968 admitting the

existence of the plots 108,109 and 110. The house tax record may

show that service had been ejected upon Ram Chander through

his son, but it cannot be over looked that the suit for injunction

was filed to restrain trespass. The service of notice will not help

the defendants also because no contemporaneous proof has been

furnished to above that the 2 sets of plots did exist at site. Rather,

it is clear that only one set existed, in respect of which the

defendants come into possession in 1971-72.

This is proved from the document placed by the defendant

themselves which is a suit filed for declaration and injunction by

the original colonizer Dr. Balwant Singh against not only Ram

Chander but also the original defendant no. 1 in this case Sh.

Jagan Nath and the original purchaser Smt. Mohan Devi. This suit

was filed for declaration and injunction on the ground that the

original purchaser of plot nos. 105,106 and 107 who had

transferred the property to Ram Chander and which was

transferred by Ram Chander to Jagan Nath had violated the terms

and conditions of the original sale relating to the consent to be

obtained from Dr. Balwant Singh before construction on the land.

This suit was filed on 21.03.1972 alleging that the defendant no. 3

there in that is Jagan Nath had begun construction without

getting the plant approved and passed by the plaintiff. It is

therefore clear that till 21.03.1972, Dr. Balwant Singh had not

sanctioned construction on any plot of land, in contrast to the

possession of the plaintiff who has placed on record the site plan

issued by Dr. Balwant Singh as Ex. PW 1 / 2 mentioning

construction in the year 1957. Dr. Balwant Singh no doubt,

mentioned that he had said plot no. 105,106 and 107 to Mohan

Devi who had said it to Ram Chander and from whom Jagan Nath

had purchased the property. But the question is not regarding the

sale deed but the existence of the plots sold at site. It is not

enough that plots that had been numbered 105,106 and 107 had

been sold by the original colonizer but that the plots had actually

been handed over to the purchaser and demarcated at site. The

plaintiff has been able to prove through the said plan Ex. PW 1 /2,

the suit for injunction and the orders there on being Ex. PW 2 /2

to 4 that his plot actually existed at site. The defendants on the

other hand have not been able to establish the existence of two

sets of plots one which they admitted existed and was in

possession of the plaintiff in the year 1968-69 and one which has

remained in their possession. Rather their case is that the plots

which are in their possession had continued from the time of Ram

Chander and that Ram Chander had been in possession of the

plots at sit. But this is not borne out factually. It is apparent from

the material on record that one set of plots had been last. They

may have existed on paper but were not available at site. This has

occurred on account of the planeed development of plots but it

appears that Dr. Balwant Singh sought to maintain some control

by asking all purchasers to seek his approval and sanction before

raising construction at the site. When Ram Chander occupied the

plot at site Dr. Balwant sued him. Thereafter there could have

been no polt which Ram Chander could have transferred at site to

the defendants. Ram Chander admitted existence of plot no. 108

to 110 in the year 1968. These plots could not have got lost

thereafter. On the other hand it is clear that the plots number

105 to 107 were not available at the spot. It is only one set of

plots that have been occupied and for which there has always

been disputes from 1968.

That the plots that have been lost are plot number 105 to

107 is clear from the fact that the plot of the Punjab National

Bank is admittedly where it ought to be that is on plot nos. 111 to

116. The defendants have tried to wash their hands off claiming

that they were not concerned with the question as to where the

property belonging to the plaintiff had disappeared. That is

taking a simplistic view. Merely because a gali exists to the North

of the property in question there is no basis to hold that the plots

105 to 107 and not 108 to 110. The plots may have been lost in

the gali not subsequent to demarcation but during demarcation,

the colonizer had no doubt planned for houses in sequence from

102 to 110 this and more. But planning requires provision for

streets and public utilities. When it is not the case that houses

have shifted location from the southern side as it is admitted that

the bank is located at the correct site at plot nos 111-116, a plot in

between cannot be said to have been lost during demarcation of

property at site. This argument of the Ld. Counsel for the

defendant that had the plot been swallowed by the gali some land

would have remained since plot was wider than the gali is

therefore misconceived. Had such plots existed at site his

contentions would have had some worth. Why the entire dispute

has taken place is onloy because one set of plots apparently sold

by Dr. Balwant to one Sohan or (Mohan) Devi never existed at the

spot after site demarcation and sanction of construction by Dr.

Balwant Singh. The mere existence of plots numbered 102 across

the gali and the description of a gali in the North side, these

circumstances will not be of any use, were the plots 105-107. This

circumstance alone will not lead to the inference that the plots

existing at site were plots 105 to 107. The original colonizer

intended a gali between the two blocks one ending with house no.

102 to 104 and one beginning with houses 106 onwards.

However, unfortunately, it appears that the plots 105 to 107 could

not be demarcated unless carved out in the gali itself. If this had

not been so, there would have been no dispute between the

parties as encroachment and amalgamation of plots is one thing

and whole sale take over and supplanting is quite another.

On the basis of the evidence that has come on record

therefore the only conclusion that could be drawn is that the

plots at site are plot nos. 108,109 and 110 and not plot nos.

105, 106 and 107. Therefore irrespective of the fact that the

defendants had purchased plot nos. 105,106 and 107, the

right to the possession of the plots at site is that of the

plaintiff and now his Lrs. Therefore, the

plaintiffs/appellants are entitled to receive back the

possession of the plots from the defendants who are in

occupation of the same. The suit of the plaintiff (Now LRs)

ought to have been decreed by the Ld. Trial Court. The

appeal is therefore accepted. The impugned judgment and

decree of the Ld. Trial Court dated 21.07.05 is set aside.

The plaintiff (now through Lrs) is granted a decree of

possession in respect of 221 sq yards of land presently

described by them as plot nos. 105,106 and 107 but have

been found to be actually plot nos. 108,109 and 110 situated

in Guru Ram Dass Nagar, Delhi-110032 out of Khasra no.

63/25 as shown in red in the site plan."

21. In no manner can it be said to be perverse. It had

appreciated the documentary and oral evidence in the

correct perspective to reverse the finding of the trial judge.

22. The substantial questions of law formulated on

19.01.2010 are accordingly answered against the appellant

and in favour of the respondent.

23. Appeal is dismissed.

INDERMEET KAUR, J.

MAY 23, 2011 SS