Shri O.P. Aggarwal & Anr. vs Shri Akshay Lal & Ors.
2012 Latest Caselaw 1756 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No.127/2004

%                                                       15th March, 2012

SHRI O.P. AGGARWAL & ANR.                         ..... Appellants
                  Through:                   Mr. O.P. Aggarwal, Advocate.


                      versus

SHRI AKSHAY LAL & ORS.                        ..... Respondents

                  Through:               Mr. Atar Singh Tokas, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. The appellant No.1, who is an Advocate, states that he has

informed Mr. Atar Singh Tokas, counsel for the respondents, and Mr.

Tokas informed him that the respondents have taken back the file from

him. I am not inclined to adjourn this old appeal any further as this matter

is on the Regular Board of this Court since 2.2.2012.

2. The challenge by means of this Regular First Appeal(RFA)

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

impugned judgment and decree of the trial Court dated 13.12.2003

dismissing the suit filed by the appellants/plaintiffs for possession and

mesne profits with respect to the suit property bearing MCD No.500/23,

Plot No.29, Gali No.10, Bhikam Singh Colony, Behind Masjid, Shahdara,

Delhi.

3. The facts of this case are that the appellants/plaintiffs by

means of usual documents being the Agreement to Sell, Power of Attorney,

Will etc all dated 11.2.2002(Power of Attorney and Will being duly

registered with the sub-Registrar, Delhi) purchased the rights in the suit

property from one Sh. Sadat Ali Khan. Sh. Sadat Ali Khan had purchased

the suit property from Smt. Jasbeer Kaur by means of similar set of

documents dated 18.12.1998, and some of which documents are registered

documents. Smt. Jasbeer Kaur had purchased the property from Sh.

Chanan Singh vide similar set of documents dated 3.12.1997. Sh. Chanan

Singh was the son of Sardar Dasondha Singh, who had purchased the suit

property from the original owner, namely, Shree Ram Sarvaria and Sons

Ltd. by means of a registered sale deed dated 16.3.1955. The

appellants/plaintiffs claimed that the respondents were illegal

occupants/trespassers in possession of the suit property and therefore after

putting them to notice of their illegal occupation, the subject suit was filed.

4. The respondents/defendants appeared and contested the suit

and prayed for dismissal of the suit on the ground that the

appellants/plaintiffs were not the owners of the suit property. It was also

pleaded that the documents relied upon by the appellants/plaintiffs cannot

confer any ownership rights in the suit property. It was also pleaded that

the earlier chain of title deeds as relied upon by the appellants/plaintiffs

were fabricated documents. The respondents/defendants claimed that

the suit property was transferred by one Smt. Sakeena Begum in favour of

Mohd. Saleem by means of documents dated 22.5.1989. Mohd. Saleem is

thereafter said to have transferred the suit property by means of documents

dated 14.6.1991 to one Sh. Vijay Gupta and whereafter by means of the

documents dated 23.10.1996, the defendant No.4 had purchased the rights

in the suit property.

5. After completion of pleadings, the trial Court framed the

following issues:-

"1. Whether the suit of the Plaintiff is not maintainable and liable to be dismissed as alleged in P.O. No.1 to 7?

2. Whether the Plaintiff is entitled to the declaration as prayed?

3. Whether the Plaintiff is entitled to the possession as prayed?

4. Whether the Plaintiff is entitled to the injunction as prayed?

5. Whether the Plaintiff is entitled to the damages? If so, at what rate and for what period?

6. Relief."

6. The trial Court has dismissed the suit by arriving at the

findings and conclusions under issue Nos.2 to 4 that the

appellants/plaintiffs cannot be said to be owners of the property inasmuch

as the documents such as the Agreement to Sell, Power of Attorney etc do

not confer ownership rights in the suit property. The trial Court also held

that the documents which have been proved and exhibited by the appellants

cannot be looked into in the absence of the persons, who executed such

documents, having not been summoned to prove these documents.

7. In my opinion, the impugned judgment is illegal, and the

appeal deserves to be allowed by setting aside the impugned judgment by

decreeing the suit of the appellants/plaintiffs. The jamabandi which has

been filed and proved on record by the defendants themselves as

Ex.DW2/1 shows that the ownership of the first/original owner-M/s. Shree

Ram Sarwaria & Sons Limited is duly shown in this record as one of the

co-owners of the khasra No.259 of Vishwasnagar Colony, village

Karkardooma, Shahdara. The ownership of the original owner-Shree Ram

Sarwaria & Sons Limited therefore cannot be disputed. Shree Ram

Sarwaria & Sons Limited had executed a registered sale deed in favour of

Sardar Dasondha Singh and which registered sale deed in original has been

proved and exhibited in the trial Court as Ex.PW1/8. The possession of

this original title deed, with the appellants/plaintiffs is a very strong proof

of the ownership of the suit property being of the appellants/plaintiffs by

means of chain of title documents which have also been referred to above.

The appellants/plaintiffs has also filed, proved and exhibited the various

title documents in a chain as Ex.PW1/1 to Ex.PW1/15. I do not agree with

the trial Court that it was necessary that the executants of such documents

had necessarily to be summoned to prove these documents inasmuch as if

what the trial Court holds is accepted, it will be necessary that to prove the

chain of title deeds running into decades all earlier owners have to be

summoned. This is not required to be done. Once documents pertaining to

rights in the property, and such documents being original documents and

also registered documents, are filed and proved on record, the onus of proof

that such documents are not genuine documents, in fact, shifts to the

opposite party. Further, the fact that the defendants/respondents are not

owners becomes clear from the fact that the earlier owner who is claimed to

be the owner of the property on behalf of the respondents/defendants is

stated to be one Smt. Sakeena Begum, but how Smt. Sakeena Begum is the

owner of this property is not shown on record. It was necessary for the

respondents/defendants to show that Smt. Sakeena Begum had purchased

from the original owner Shree Ram Sarvaria and Sons Ltd, however, there

is no document to connect Smt. Sakeena Begum with Shree Ram Sarvaria

and Sons Ltd. Therefore, once Smt. Sakeena Begum herself never had title,

no rights in the property flow to the so called subsequent purchasers,

namely, Mohd. Saleem, Sh. Vijay Gupta and defendant No.4-Smt. Sundra

Devi.

8. I must at this stage itself mention that the

defendants/respondents though filed certain original documents, however

the said documents were not proved as no one on behalf of the

respondents/defendants stepped into the witness box either to prove the

case as set up in the written statement or the so called chain of title

documents of the suit property. The only evidence which was led on behalf

of the respondents/defendants was of two witnesses, DW1 and DW2, and

which official witnesses proved the jamabandi and the alleged Award of

the Government acquiring the suit land. A party to a case who does not

have the courage to step into the witness box to prove his case and is not

willing to be cross-examined cannot be allowed to succeed.

9. The trial Court has rightly held that mere filing of the Award

cannot mean that the Government became the owner inasmuch as the

Government becomes the owner of the land only after possession of the

land is taken under Section 16 of the Land Acquisition Act, 1894 and

which is not so proved on record and nor is the Government claiming any

rights in the suit property. So far as the jamabandi, Ex.DW2/1 is

concerned, I have already held that the same shows the ownership of the

suit property originally in the name of Shree Ram Sarwaria & Sons

Limited.

10. A civil case is decided on balance of probabilities. The

preponderance of probabilities in the present case shows that the

respondents/defendants had no right, title and interest in the suit property.

Whereas on the one hand, appellants/plaintiffs proved the entire chain of

title documents including the registered sale deed dated 16.3.1955 in favour

of Sh. Dasondha Singh by Shree Ram Sarwaria & Sons Limited, the

respondents/defendants failed to even prove the so called documents by

which they derived title, and which in any case did not confer title upon

them as it is not shown as to how the so called owner Smt. Sakeena Begum

had become owner of the suit property by purchasing the same from

original owner Shree Ram Sarwaria & Sons Limited. As already stated

above, the respondents/defendants did not have the courage to step into the

witness box and be subjected to cross-examination.

11. No doubt, documents such as Agreement to Sell, Power of

Attorney, Will etc do not strictly confer ownership rights as a sale deed,

however, such documents create certain rights in an immovable property,

though which are strictly not ownership rights but definitely the same can

be construed as entitling the persons who have such documents to claim

possession of the suit property inasmuch as at least the right to the suit

property would stand transferred to the person in whose favour such

documents have been executed. The Supreme Court in the recent judgment

of Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana and Anr. 183

(2011) DLT 1(SC) has reiterated the rights created by virtue of Section

53A of Transfer of Property Act, 1882 and Section 202 of the Contract Act,

1872 in paras 12, 13 and 16 of the said judgment.

12. The appellant No.1/plaintiff No.1 in the affidavit by way of

evidence has stated in the examination-in-chief that the suit property can

easily earn ` 2,000/- per month and which amount should be awarded in

favour of the appellants/plaintiffs. There is no cross-examination to this

aspect by the respondents/defendants. Also, considering that the suit

property is of 200 sq. yds, an amount of ` 2,000/- per month cannot, in any

manner, be said to be unreasonable.

13. In view of the above, appeal is accepted. Suit of the

appellants/plaintiffs is decreed for possession with respect to property

admeasuring 200 sq. yds. bearing MCD No.500/23, Plot No.29, Gali

No.10, Bhikam Singh Colony, Behind Masjid, Shahdara, Delhi. The

appellants/plaintiffs are also granted mesne profits @ ` 2000/- per month

from the date of filing of the suit till the appellants/plaintiffs receive actual

physical vacant possession from the respondents/defendants. Decree sheet

with respect to mesne profits be prepared after the appellants/plaintiffs

pays/files the Court fees with respect to mesne profits. Appellants are also

entitled to costs of this appeal. Trial Court record be sent back.

14. At this stage, counsel for the respondents/defendants appears

and states that in fact he has duly issued legal notice to the respondent No.1

for discharge, and which notice has been filed alongwith the list of

documents dated 6.3.2012 in this Court. Accordingly, it is observed that

the Advocate, Mr. Atar Singh Tokas has duly notified the respondent No.1,

and who shall accordingly bear the consequences of the appeal having been

heard and disposed of ex parte.

VALMIKI J. MEHTA, J MARCH 15, 2012 Ne