Shri Krishan Lal & Ors vs Shri Alok Kapoor & Ors.
2011 Latest Caselaw 5390 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.426/1999


%                                           8th November, 2011

SHRI KRISHAN LAL & ORS                                ...... Appellants
                Through:        Mr. Atul Nigam with
                                Mr. Rajeev Saxena, Advs.


                          VERSUS

SHRI ALOK KAPOOR & ORS.                                 ...... Respondents

Through:

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 this Regular First Appeal filed under

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

judgment of the Trial Court dated 8.4.1999. By the impugned judgment, the

Trial Court dismissed the suit for permanent injunction filed by the

appellants/plaintiffs without allowing the appellants any opportunity to lead

evidence, i.e. the suit was disposed of at the stage of framing of issues. The

rival cases as pleaded are that the appellants/plaintiffs claimed to be the

owner of the suit property by virtue of a sale deed dated 19.3.1870 from Mir

Tufail Ali who was said to have transferred it thereafter to the forefathers of

the plaintiffs whereas the defendant no.1 claimed to be the owner of the

property as he claimed to have purchased the same from one Sh. Jagu in

whose favour it was alleged that there was a registered sale deed dated

4.6.1920.

2. Quite clearly therefore there was a disputed question of fact as

to ownership of the suit property being plot no. 166, forming part of the

Abadi of Basti Nizamuddin, New Delhi.

3. The Trial Court has disposed of this contentious/disputed

question of fact by observing as under:-

"5. During the pendency of the proceedings, plaintiffs were asked to file the original title deeds on which the claim of the plaintiffs was based. Despite the repeated opportunities plaintiffs did not file the original title deeds. Ultimately, statement of plaintiff was recorded under Order 10 CPC and the plaintiff stated that he had never been in possession of the title deeds. Title deeds were in possession of one Pratap Singh who had filed it in a case. From that case, the title deed was taken back by the counsel. The counsel had handed over the title deed to one of the plaintiffs and the plaintiff got it translated and gave back to the counsel but the counsel states that the title deed has not been given back to him.

6. This is a suit in which the plaintiffs have claimed title over the property on the basis of title document. The plaintiffs have failed to produce the original title deed. The copy which has been produced and whose translation has been filed shows that it was a piece of land measuring 150 Dara owner by Mir Tufail Ali. This piece of land was given by him to Chandu, s/o Lalji, Roopram s/o Teja, Tula s/o Khushhali, Maula s/o Dharampal and Gurdayal s/o Rupa, caste Gadaria. From this document, it is evident that claim of the plaintiff that the property was owned by his forefather Teja, is an

absolutely false claim and has no force. On the other hand, the defendant has filed the documents including lease deed, the house tax receipts, mutation, etc, in respect of plot No.166. The plaintiffs had come to the court claiming that the property in question belonged to his forefathers. The plaintiff made false allegations in the plaint, concealed the material facts from the court. The plaintiffs had not come to the court with clean hands. The document, in fact, shows that a few persons of Gadaria community has jointly purchased the piece of land and Teja Singh alone had not purchased the property. Moreover, no link of the land mentioned in alleged document with plot in question seems to be there. The other fact which is relevant is that Teja Singh was alive in 1870. The pedigree of Teja Singh filed in court with replication, belies the contention of the plaintiff that they could be owner of property as it is not shown how property went from one generation to other, what were shares of different legal heirs, what were other properties of Teja Singh and how they were partitioned.

7. The plaintiffs have trespassed in the property and now want to fortify there act of trespass on the basis of this document. The plaint is hereby dismissed for not coming to the court with clean hands and deliberately making false statement in the plaint and making false averments that the property belonged to them."

4. The Trial Court has clearly fallen in error in disposing of the suit

which involved the disputed question of fact with respect to ownership of the

property on the basis of rival cases as set down in the pleadings by

observing that the plaintiffs had not come to the Court with clean hands and

the photocopy of the document relied upon by the plaintiffs does not show

the plaintiffs to be the owners. In my opinion, the issue of title is an issue for

determination of which there has to be full-fledged trial and complete

opportunity has to be allowed to the respective parties to prove their cases.

The Trial Court committed a grave illegality in disposing of the suit on the

basis of pleadings. The Trial Court was further not justified in giving a finding

that the document being the sale deed dated 19.3.1870 does not confer title

on the appellants/plaintiffs as the Trial Court observed that the complete

pedigree table had to be filed but the same was not filed. Surely, this

pedigree table would have been established in the course of the trial and

only when it was established would then the appellants been declared as

entitled to the rights to the suit property. Further, I may note that validity or

invalidity of the document cannot be decided merely because only

photocopy of the document has been filed for the time being. The

appellants/plaintiffs had, clearly stated that original sale deed was with their

Advocate in other case and which thus could have been filed in the course of

the trial. Also, the Trial Court was not justified in holding that from the

documents it is evident that the claim of the plaintiffs of the property being

owned by forefather Teja of the appellants/plaintiffs is false because it was

found bald statement because the fact was that admittedly Teja had

purchased the property from Mir Tufail Ali and the appellants/plaintiffs

claimed to be the successors-in-interest of Teja. Recording of statement

under Order 10 CPC and dismissing of suits on that basis is not correct

inasmuch as the provision of Order 10 CPC is not meant to be a substitute for

detailed evidence in the case. The Supreme Court in the judgment reported

as Kapil Corepacks (Pvt.) Ltd. vs. Harbans Lal (2010) 8 SCC 452 has

held that the object of a statement recorded under Order 10 CPC is only to

elucidate the pleadings and not to prove or disprove the matters in

controversy, nor to seek admissions, nor to decide the rights or obligations of

parties. Any attempt by the Court, either to prove or disprove the document

or to cross-examine a party by adopting the stratagem of covering portions

of a document used by the cross-examining counsel, are clearly outside the

scope of an examination under Order 10 Rule 2 CPC.

5. In view of the above, the impugned judgment and decree is set

aside. The Trial Court is now directed to hear and dispose of the suit in

accordance with law. Since the respondents had not been represented in

this appeal, the Trial Court before proceeding to take steps in the suit, will

ensure service of notices on the respondents/defendants.

6. Interim orders granted by this Court on 5.7.1999 and confirmed

on 16.11.1999 will enure for the benefit of the appellants till the disposal of

the interim application under Order 39 Rules 1 & 2 CPC filed on behalf of the

appellants/plaintiffs in the suit without the trial court being uninfluenced by

the fact of their continuation by this court. The appeal is disposed of

accordingly. Decree sheet be prepared. Trial court record be sent back.

VALMIKI J. MEHTA,J NOVEMBER 08, 2011 ak