Nar Singh Dass Gupta vs Shri Lal Man And Ors.
2012 Latest Caselaw 3264 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA 689/1998

%                                                            MAY 16, 2012

NAR SINGH DASS GUPTA                                      ...... Appellant
                  Through:               Mr. Ashwini Mata, Sr. Adv. with Mr. Sunil
                                         Agarwal and Mr. R.C.Gupta, Advocate.


                            VERSUS

SHRI LAL MAN AND ORS.                                      ...... Respondents

                  Through:               : Mr. R.B.Singh, Adv. for LRs of R-1(a)

                                             Mr. S.D.Singh, Mr. Rahul Kr. Singh, Mr.
                                             Kamla Prasad and Ms. Bharti Tyagi, Adv.
                                             for R-2 and 3.

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

    To be referred to the Reporter or not?       Yes


VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal filed under Section 96 of the Code of Civil

Procedure, 1908 (CPC) impugns the judgment and decree of the trial Court dated

10.8.1998 dismissing the suit of the appellant/plaintiff filed for possession and

mesne profits with respect to the suit property bearing no. C-11, Adarsh Nagar

Extension, Azadpur, Delhi admeasuring 200 sq. yds.

2. The case of the appellant/plaintiff was that he purchased the suit property on

8.12.1966 by means of a registered sale deed from Subedar Major Jaswant Singh.

Subedar Major Jaswant Singh had purchased the suit property by means of a

registered sale deed on 30.7.1966 from M/s Capital Housing Private Ltd. The

appellant/plaintiff claimed that there was a requirement of safeguarding this

property inasmuch as, he was living in Narela, a separate area from where the suit

property is situated, and therefore, when he went to the suit property in the year

1984, he was approached by the defendant no.1/respondent no.1/ Sh. Lal Man that

in consideration of him being allowed to stay in one room existing in the suit

property he would take care of the property and prevent encroachment thereon.

The respondent no.1/defendant no.1-Sh. Lal Man was engaged in the work of

preparing and selling tea in the same area. The further case of the

appellant/plaintiff was that when in the year 1989, he visited the suit property it

transpired that half of the said plot was being constructed by the defendant no.2/

Sh. M.L.Ram, Advocate. It transpired subsequently that the suit property was

purchased by Mrs. Neema Devi/wife of defendant No.2/defendant No.3 from her

own brother-in-law, Sh. Ashok Kumar Ram, and Sh. Ashok Kumar Ram had

himself purchased the area of 100 sq. yds out of the total suit property from the

defendant No.1/respondent No.1. The appellant/plaintiff therefore, because of

unauthorized construction, immediately orally terminated the licence of the

defendant No.1 and thereafter filed the subject suit for possession and mesne

profits.

3. Respondents/defendants contested the suit and filed a common written

statement. It was pleaded that the defendant No.1 was the owner of the entire 200

sq. yds inasmuch as he was put into possession of the same by one Sh. Risal Singh

who told respondent No.1/defendant No.1 that the suit property belonged to Gaon

Sabha and therefore the defendant No.1/respondent No.1 could take possession of

the same from Sh. Risal Singh who was said to be in possession. It was further

pleaded that the defendant No.1 was in fact in possession of the suit property since

the year 1975 i.e. not from the year 1984 as was claimed in the plaint by the

appellant/plaintiff. The further case of the defendants/respondents was that the

defendant No.1 had sold rights in the 100 sq. yds. of the suit property by means of

the documentation of the year 1988 to Sh. Ashok Kumar Ram who was brother of

the defendant No.2, and Sh. Ashok Kumar Ram thereafter sold the portion of 100

sq. yds. to defendant No.3 who is wife of defendant No.2. It was prayed that the

suit for possession and mesne profits be therefore dismissed.

4. After completion of pleadings, the trial Court framed the following issues:-

"1. Whether the plaintiff is the owner of the suit property and the defendant is in illegal possession thereof as alleged? OPP

2. Whether the description of the suit property has not been property given? If so to what effect?

3. Whether the suit has been property valued for the purposes of court fee? If not, what is the value for that purpose? Onus on parties.

4. Whether proper court fee has not been paid on the plaint? If so to that effect? OPD

5. Whether plaint as drafted is not maintainable as alleged if so to what effect? OPD

6. Whether the suit is bad for misjoinder and non joinder of parties? If so to what effect?

7. Whether the suit plot stands acquired by DDA as alleged? If so to what effect? OPD

8. Deleted.

9. Whether the defendant has become owner of the suit plot for the reasons stated in para 4 of the reply on merit of the W.S.? If so to what effect? OPD

10. Whether the plaintiff is entitled to any decree for possession as claimed? OPP

11. Whether the plaintiff is entitled to recover any damages? If so at what rate, for what period and to what amount?

12. Relief."

5. Trial Court by the impugned judgment has held that the appellant/plaintiff

has failed to prove his ownership of the suit property inasmuch as the

appellant/plaintiff had failed to prove the sale deed Ex.PW1/5 executed by M/s.

Capital Housing Private Ltd. in favour of Subedar Major Jaswant Singh. Trial

Court has also held that the revenue record of the suit land in favour of the M/s.

Capital Housing Private Ltd. was not established on record. Trial Court also holds

that since the mutation of the property was applied for but not pursued, this shows

that the appellant/plaintiff was not the owner. Trial Court concluded that since

Ex.PW1/5 being the sale deed executed by M/s. Capital Housing Private Ltd. in

favour of Subedar Major Jaswant Singh was not proved, there does not arise the

question of passing of title in favour of the appellant/plaintiff vide the sale deed

Ex.PW1/1 executed by Subedar Major Jaswant Singh in favour of the

appellant/plaintiff.

6. Before this Court, arguments have been centered around the issue as to

whether the appellant/plaintiff is or is not the owner of the suit plot. The

appellant/plaintiff relied upon the sale deeds Ex.PW1/1 and Ex.PW1/5 executed

by Subedar Major Jaswant Singh in favour of the appellant/plaintiff and by M/s.

Capital Housing Private Ltd. in favour of Subedar Major Jaswant Singh

respectively, house tax record Ex.PW1/12 showing ownership of the

appellant/plaintiff, and the other evidences on record. The respondents/defendants

in reply, in substance, contended that the document Ex.PW1/5 cannot be said to

have been proved either by the appellant/plaintiff who appeared as PW-2 or

through the witnesses PW-5 and PW-6 who have deposed as being conversant with

the signatures of the Directors of the company, M/s. Capital Housing Private Ltd.

who had signed the sale deed Ex.PW1/5. It was also argued on behalf of the

respondents/defendants that the Board resolution showing the entitlement to

execute the sale deed Ex.PW1/5 has not been filed and therefore, the document

Ex.PW1/5 cannot be said to have been validly proved. It is also argued that the

document Ex.PW1/1 being the sale deed by which, the appellant/plaintiff

purchased the suit property from Subedar Major Jaswant Singh also cannot be said

to be proved inasmuch as the witnesses to that sale deed ought to have been

summoned, but were not. While disputing the transfer of title by means of

documents Ex.PW1/5 and Ex.PW1/1, in favour of the appellant/plaintiff reliance

has been placed upon Sections 66 and 101 of the Indian Evidence Act, 1872. On

behalf of the respondents reliance is also placed upon certain alleged contradictions

between the plaint and the evidence led on behalf of the appellant/plaintiff, and

details of which will be given by me hereafter. It was also argued on behalf of the

respondents/defendants that property tax record exhibited as Ex.PW1/12 shows the

year thereof as 1979, though, as per the appellant/plaintiff, the boundary wall with

one room on the suit plot was constructed in the year 1982. It was also argued that

the appellant/plaintiff has failed to discharge the onus of proof either with respect

to the ownership or the termination of licence of the respondent no.1/defendant

no.1.

7. In my opinion, the trial Court has completely misdirected itself in dismissing

the suit for possession and mesne profits filed by the appellant/plaintiff. The trial

Court has gravely erred in holding that the appellant/plaintiff is not the owner of

the suit property, although, the sale deeds Ex.PW1/1 and Ex.PW1/5 were proved in

accordance with law. The findings of the trial Court of the appellant/plaintiff not

being the owner is clearly erroneous moreso because the respondents/defendants

failed to file even a single document to establish as to how the suit property

belonged to Gaon Sabha if at all, or how Sh. Risal Singh was in possession from

whom the respondent no.1/defendant no.1 claimed to have taken possession, and

finally if possession was given by Sh. Risal Singh to the respondent no.1/defendant

no.1, how was the said independent possession established.

8. Firstly, let us see whether the appellant/plaintiff has proved the sale deed

Ex.PW1/1 by which he purchased the suit property from Subedar Major Jaswant

Singh. PW2 has in his examination in chief deposed that the signatures on the sale

deed Ex.PW1/1 are of Subedar Major Jaswant Singh inasmuch as, the said

signatures were put in the presence of the appellant/plaintiff. In my opinion, this is

sufficient compliance of the proof of a document inasmuch as Section 47 of the

Indian Evidence Act,1872 states that a document can be proved by a person in

whose presence signatures were put and the document executed. The

appellant/plaintiff being a purchaser from Subedar Major Jaswant Singh there

would be nothing unnatural for him to be present when Ex.PW1/1 was executed in

his favour by Subedar Major Jaswant Singh. A mere suggestion on behalf of the

respondents/defendants that the signatures on Ex.PW1/1 were not put by Subedar

Major Jaswant Singh in presence of the appellant/defendant, cannot in any manner

help the respondents/defendants, moreso because Subedar Major Jaswant Singh is

not questioning the transfer of title of the suit property by him which was done

vide Ex.PW1/1 to the appellant/plaintiff. The argument urged on behalf of the

respondents/defendants that the sale deed Ex.PW1/1 cannot be looked into because

the witnesses of the sale deed have not been examined is an argument which is

directly against the proviso to Section 68 of the Evidence Act, 1872 which states

that in case where a document is registered in accordance with the provisions of

Indian Registration Act, 1908 there is no necessity to call an attesting witness in

proof of such document unless the document is a Will or unless the execution of

the document is denied by the person who purports to have executed the same.

The executant Subedar Major Jaswant Singh has not disputed Ex.PW1/1 and

therefore there was no need to summon the attesting witnesses of the document

Ex.PW1/1. Therefore, in my opinion, the document Ex.PW1/1 stands proved and

it is not open to the respondents/defendants to urge that the sale deed Ex.PW1/1

had not been proved in accordance with law.

9(i) So far as the sale deed Ex.PW1/5 executed by M/s Capital Housing Private

Ltd. in favour of the appellant/plaintiff is concerned, in my opinion, the said

document has been clearly proved through the witnesses PW5 and PW6 both of

whom have deposed that they are conversant with the signatures of the Directors of

M/s Capital Housing Pvt. Ltd. namely Sh. Vilayati Ram and Sh. Rameshwar

Prasad. It is not unusual that property dealers of the area, and PW 5 and PW6 were

property dealers of the area in question, are aware of ownership of the plots in the

name of the company who sells them as also the signatures of the Directors

inasmuch as it is in their routine course of business that they visit the persons who

own the company which sells the plots. It has come on record that the suit property

was situated in an unauthorized colony being Adarsh Nagar Extension and whose

plots were carved out by the company-M/s Capital Housing Pvt. Ltd. The mere

fact that there is a suggestion given by the respondents/defendants that the

witnesses PW-5 and PW-6 are not conversant with the signatures of the

Directors/Sh. Vilayati Ram and Sh. Rameshwar Prasad cannot take the case of the

respondents/defendants any further inasmuch as if really the

respondents/defendants were sure of their stand it was not difficult for them to

summon the records of M/s Capital Housing Pvt. Ltd. or the presence of their

Directors or other appropriate persons to show if according to them the signatures

on Ex. PW1/5 were really not put on behalf of the company-M/s. Capital Housing

Pvt. Ltd. The argument that the appellant/plaintiff had to file and prove the

resolution of M/s Capital Housing Pvt. Ltd. to show transfer of suit property in

favour of Subedar Major Jaswant Singh is an argument without any merit

inasmuch as the company-M/s Capital Housing Pvt. Ltd. is not disputing the

transfer of the title of the suit property in favour of Subedar Major Jaswant Singh.

There is no locus standi of the respondents/defendants to question the transfer of

title by Ex.PW1/5 to Subedar Major Jaswant Singh, once none of the parties

involved with the transaction are in any manner, challenging the transaction

encompassed in the sale deed Ex.PW1/5.

(ii) I may note that the Supreme Court in the judgment reported as

R.V.E.Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple &

Anr. 2003 (8) SCC 752 has held that once the documents have been exhibited,

subsequently no objection as to the mode of proof of the documents can be

entertained. The Supreme Court has observed that if objection as to mode of proof

is taken at the time of exhibition of the document, then, the person, who has

exhibited and proved the document, can lead other evidence if so required to

prove/ exhibit the document which has been challenged on the ground of mode of

proof. However, once the objection is not taken at the necessary point of time,

thereafter no further objection as to mode of proof of the document i.e. exhibiting

of the document, can be taken. In the present case, merely raising an objection in

cross-examination as to the mode of proof of the document or questioning the

proving of document is not sufficient because this objection had to be taken either

at the time when document was being exhibited or in any case before the cross-

examination commenced inasmuch as once the cross-examination has commenced

after the examination in chief is over, the opportunity to the opposite party to prove

the document by other means goes. Therefore, relying upon the ratio of

R.V.E.Venkatachala Gounder(supra), I hold that there cannot be any valid

objection to the exhibition of the sale deeds Ex.PW1/1 and Ex.PW1/5.

This reason as stated by me is an additional reason to the conclusion

otherwise given that the documents Ex.PW1/1 and Ex.PW1/5 have been proved in

the manner known to law i.e. by application of Section 47 of the Evidence Act,

1872 inasmuch as, both the witnesses PW 5 and PW 6 have stated that they were

otherwise conversant with the signatures of the Directors of the company-M/s

Capital Housing Co. Pvt. Ltd. and who had executed the sale deed Ex.PW1/5.

(iii) Finally I must add that Supreme Court in the judgment of Gulzar Ali Vs.

State of Himachal Pradesh 1988 (2) SCC 192 has held that Section 47 is not

exhaustive of the manner of proof of a document and a document can also be

proved by other means. The Supreme Court has said that there are other modes by

which the identity of the handwriting can be established and citing an example the

Supreme Court observes that if a letter is seized from the possession of „A‟ and

the letter contains the name of the sender as well as the name of the sendee and if

such sendee happens to be „A‟ himself, those circumstances even without resorting

to the mode indicated in Sections 45 and 47 of the Evidence Act, would be

sufficient to draw an inference that the author or even scribe of that letter is the

sender and „A‟ is the sendee of it. In this case the title deed Ex.PW1/5 has come

from correct custody and therefore I hold that in the facts of the present case, it is

otherwise proved that the document Ex.PW1/5 is a sale deed executed by M/s

Capital Housing Society Pvt. Ltd. in favour of Subedar Major Jaswant Singh,

especially considering the fact that neither M/s Capital Housing Pvt. Ltd nor

Subedar Major Jaswant Singh have in any manner questioned the transaction

comprised in Ex.PW1/5.

10. I therefore hold that the appellant/plaintiff has proved on record its title to

the suit property by means of the sale deeds, Ex.PW1/1 executed by Subedar Major

Jaswant Singh in favour of the appellant/plaintiff, and Ex.PW1/5 executed by M/s

Capital Housing Pvt. Ltd. in favour of Subedar Major Jaswant Singh.

11. Whereas the appellant /plaintiff has filed the aforesaid title deeds, the

respondents/defendants on the other hand have not filed any documentary proof

whatsoever of the alleged ownership of the Gaon Sabha of the suit plot, the alleged

coming into possession of this plot by Sh. Risal Singh, the alleged handing over of

possession by Sh. Risal Singh to respondent no.1/defendant no.1 and much less in

the year 1975, and defendant No.1 being in possession thereof thereafter as an

owner. If such oral depositions which have been made by the

respondents/defendants to claim ownership of their property are accepted, it would

create chaos because by a mere statement of ownership, rights in an immovable

property of a real owner can be lost and which can be claimed by the persons who

simply make oral depositions. Once, the respondent no.1/defendant no.1 was not

the owner of the property, there cannot arise issue of any transfer of title to Sh.

Ashok Kumar Ram, brother of defendant no.2 and thereafter to defendant

no.3/wife of defendant no.2.

12. Considerable emphasis was laid on behalf of the respondents/defendants to

the fact that whereas in the plaint, it is mentioned that the respondent

no.1/defendant no.1 approached the plaintiff for taking care of the suit property,

but in the evidence it was deposed by the appellant/plaintiff that when he went to

the suit property in the year 1984, the respondent no.1/defendant no.1 who was

making tea in the same area, offered to take care of the said plot when the

appellant/plaintiff expressed his thoughts of the requirement of taking care and

preventing encroachment of the suit property.

This argument urged on behalf of the respondents/ defendants, in my

opinion, is an argument which lacks any substance, because when the plaint says

that the respondent no.1/defendant no.1 approached the appellant/plaintiff,

obviously, what is being meant is that the first action was taken by the respondent

no.1/defendant no.1 i.e inclination to be appointed as a care taker of the suit

property was shown by the respondent no.1/defendant no.1. If in the deposition,

the appellant/plaintiff stated that when he went to the suit property in the year

1984, and the respondent no.1/defendant no.1 said that he is ready to take care of

the suit property and would stay in the room which existed in the suit property, it

would still mean that it is the respondent no.1/defendant no.1, who effectively

approached the appellant/plaintiff to take care of the suit property. I do not see any

such major/great contradiction in the plaint as compared to the deposition of the

appellant/plaintiff to hold that on this ground itself the suit is liable to be

dismissed.

13(i). One other aspect on which great stress was laid on behalf of the

respondents/defendants was that the pleadings in an earlier suit filed by Sh. Ashok

Kumar Ram could not be looked into against the respondents/defendants as they

did not form part of the averments made in the suit plaint. Before I discuss this

argument urged on behalf of the respondents/defendants, a brief resume of the facts

of the earlier suit filed in the year 1988 by Sh. Ashok Kumar Ram against the

respondent no.1 herein and two other persons is necessary. The plaint and the

written statement in the said suit have been filed and exhibited by the

appellant/plaintiff as Ex.PW1/9 and Ex. PW 1/10. A reference to the plaint

Ex.PW1/9 of suit no. 408/1988 shows that the plaintiff therein namely Sh. Ashok

Kumar Ram (who is none other than the real brother of the defendant no.2 in this

suit) claimed ownership of the suit property from the defendant no.1 by paying of

a consideration amount of Rs.40,000/-. It was claimed that the plaintiff in that said

suit-Sh.Ashok Kumar was in possession of the suit property and therefore,

injunction was sought against the defendants in the suit namely, respondent no.1

herein and two other persons including the defendant no.3 therein who was SHO of

the area, not to dispossess the plaintiff-Sh. Ashok Kumar Ram. The written

statement filed to this suit by the defendant no.1 herein makes interesting reading.

The written statement, if at all the same can be called a written statement, admits

and concedes to everything which is stated in the plaint. Each and every para of

the written statement admits each and every para of the plaint including the prayer

para of the plaint. It is admitted therein that the defendant nos. 1 and 2 in that suit

will not create any obstruction with the plaintiff‟s possession of the suit plot.

Obviously, therefore, this suit was a rank collusive suit so as to create evidence of

possession and some sort of title of Sh. Ashok Kumar Ram over the suit property

when it was always to the knowledge of the defendant no.1 in that suit, and who is

the defendant no.1 in this suit, that he was never the owner of the suit property.

Obviously, judicial process has been misused by the plaintiff in the said suit in

collusion with the defendant no.1 herein. Such types of practices need to be

strongly deprecated.

(ii) Now on the issue as to whether the appellant/plaintiff cannot rely on these

pleadings Ex. PW 1/9 and Ex. PW1/10 because they were not mentioned in the

plaint. I must state that I have really failed to make any sense of this argument.

This I say so because a plaint, in a suit for possession and mesne profits, basically

has to contain the cause of action with regard to the ownership of the plaintiff, and

as to how the defendant in the suit is in the illegal possession, and, there is no

requirement in law of mentioning in such a plaint that there exists evidence of

earlier collusive suit to show alleged title of defendant no.1 and Sh. Ashok Kumar

Ram , the brother of defendant no.1. Surely, pleadings of an earlier collusive suit

are only evidences to establish in favour of the appellant/plaintiff the malafides and

collusion inter se the defendants and which evidences can always be filed and

relied upon without being so mentioned in the plaint. I therefore reject the

argument that the documents being Ex.PW1/9 and Ex.PW1/10 cannot be looked

into because they were not „pleaded‟ in the plaint.

14(i). One other issue which was urged on behalf of the respondents/defendants

was with respect to the fact that the suit property for which the appellant/plaintiff

has filed the documents of title being sale deeds Ex.PW1/1 and Ex.PW1/5 is not

the suit property and that the suit property is different than the subject matter of

Ex.PW1/1 and Ex.PW1/5. Even this argument in my opinion is an argument

totally devoid of any merit whatsoever. The facts of the present case must be

understood in the context that the colony Adarsh Nagar Extension is an

unauthorized colony. Such unauthorized colonies over a period of time, are

referred to by varying names which are related to each other. Since there is no

regularized name given by the MCD with regard to the said colony, residents of

that area or the buyers of the plots or sellers of the plots, call the colony by a name

which they find suitable. Over a period of time, to enable better description of a

plot, residents may add or subtract to what is stated in the sale deed with respect to

plots of such colonies. In the present case, however, there is no doubt that suit

plot is the very plot which was subject matter of the sale deeds Ex.PW1/1 and

Ex.PW1/5 inasmuch as, except minor differences, it is clear that the plot number is

C-11, the same is a plot which is part of Adarsh Nagar Extension and bounded on

the four sides by plot No. C-10; plot No. C- 12; road 30 ft. wide on one side; and a

service lane/Gali on the back side. In fact, the plan filed in the present suit

exhibited as Ex.PW1/4 when compared to the plan filed by Sh. Ashok Kumar Ram

in the earlier collusive suit Ex.PW1/9 shows that both the plans are almost

completely identical. In my opinion, therefore, the argument sought to be urged on

behalf of the respondents/defendants to create doubt as to the identity of the

property is wholly malafide and just to frustrate the valuable ownership rights of

the appellant/plaintiff in the suit property. To the above, I may only add that if

really the suit property is not the property which is so stated in Ex.PW1/1 and

Ex.PW1/5, then respondents/defendants could have stated where this property is

existing, which is the subject matter of Ex.PW1/1 and Ex.PW1/5, if the same does

not exist on the plot which is presently in possession of the

respondents/defendants. Of course, it can be said that it is not the duty of the

respondents/defendants to say that where would be the property which is subject

matter of Ex.PW1/1 and Ex.PW1/5, however, in the facts of this case once we have

the plan in the earlier suit filed in 1988 by none other than Sh. Ashok Kr. Ram

(who is the brother of defendant No.2 in this suit) and the similar plan filed in the

present suit Ex.PW1/4, there does not remain any doubt as to the identity of the

suit property and therefore, I would feel that it was the respondents/defendants, if

they doubted the identity of the suit property, who should have given further

reasons. In any case, no further observations need to be made in this regard in

view of the fact that except for minor changes with regard to the road being called

a bunglow road or cottage road there is no doubt that the property No. C-11 is the

only property No. C-11 existing in the Adarsh Nagar Extension. I, therefore, hold

that there is no confusion with respect to the identity of the suit property.

(ii) While on this aspect of the identity I must also deal with the issue with

respect to the house tax record Ex.PW1/12 seeming to suggest as if the suit

property is constructed in the year 1979 because there appears to be a date of

1.4.1979 in the house tax record Ex.PW1/12 as filed by the appellant/plaintiff. In

this regard it has to be stated that it is difficult to understand the context in which

this date of 1.4.1979 is given in this document inasmuch as the year 1979 appears

with the numerical no. 1300 and it cannot be said with surety that the reference of

1979 in Ex.PW1/12 is only for the year of construction. In any case, a minor

contradiction of construction of a suit room in 1979 as compared to the statement

of the appellant/plaintiff as the same having been constructed in 1982 cannot have

such a drastic effect to take away the ownership of the suit property which

otherwise has been proved by the appellant/plaintiff by means of registered sale

deeds Ex.PW1/1 and Ex.PW1/5.

15. On the aspect of mesne profits, the appellant/plaintiff in his examination-in-

chief as PW-2 has stated that rate of rent of the suit property would be in the region

of `1500/- to ` 2000/- per month. Admittedly, there is no cross-examination to

this statement which has been made by the appellant/plaintiff and therefore this

statement with respect to the rate of rent of the property has to be accepted. In any

case, surely for a property of 200 sq. yds in Delhi, it cannot be said that mesne

profits at `2000/- per month can in any manner be said to be excessive. The

respondent No.1 is running a dairy business from the suit property and respondent

Nos.2 and 3 have made construction and are living in the suit property. I am

therefore of the opinion that besides the suit for possession being decreed, the

appellant/plaintiff is entitled to a sum of ` 2,000/- per month from 18.5.1989,

increased by 20% every five years on the previous years‟ mesne profits, pendente

lite and future till possession of the suit property is handed over by the

respondents/defendants to the appellant/plaintiff, whether voluntarily or through

execution proceedings.

16. Learned senior counsel for the appellant, in my opinion, in the facts of the

present case, has rightly relied upon a recent judgment of the Supreme Court in the

case of A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya

Nandavana Paripalanai Sangam Represented by its president etc. MANU/SC

0336/2012, wherein the Supreme Court has made very strong observations where

care takers/chowkidars of the property start claiming themselves to be the owners

of the suit property. Para 42 of the said judgment is relevant and I would seek to

reproduce the same at this stage:-

"42. On the facts of the present case, following principles emerges:

1. It is the bounden duty of the Court to uphold the truth and do justice.

2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts.

3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful.

4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrong doer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice.

5. It is the bounden obligation of the Court to neutralize any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process.

6. Watchman, caretaker or a servant employed to look after the property can never acquire interest in the property irrespective of his long possession. The watchman, caretaker or a servant is under an obligation to hand over the possession forthwith on demand. According to the principles of justice, equity and good conscience, Courts are not justified in protecting the possession of a

watchman, caretaker or servant who was only allowed to live into the premises to look after the same.

7. The watchman, caretaker or agent holds the property to the principal only on behalf the principal. He acquires no right or interest whatsoever in such property irrespective of his long stay or possession.

8. The protection of the Court can be granted or extended to the person who has valid subsisting rent agreement, lease agreement or licence agreement in his favour."

(underlining is mine)

The above observations of the Supreme Court must be read alongwith the

observations of the Supreme Court in the case of Ramrameshwari Devi and

Others v. Nirmala Devi and Others, (2011) 8 SCC 249 in which the Supreme

Court has observed that it is high time that actual costs must be imposed so that a

party which has unfairly contested litigation is not benefited. I am also empowered

to impose actual costs by virtue of Volume V of the Punjab High Court Rules and

Orders (as applicable to Delhi) Chapter VI Part I Rule 15.

17. In view of the above, the appeal is allowed. The impugned judgment and

decree dated 10.8.1998 is set aside and the suit of the appellant/plaintiff for

possession and mesne profits with respect to the property No.A-11, Adarsh Nagar

Extension, Azadpur, Delhi admeasuring 200 sq. yds and more particularly shown

in Ex.PW1/4 is decreed with costs which I quantify at `2 lacs. The

appellant/plaintiff will also be entitled to mesne profits at the rate of ` 2000/- per

month increased by 20% every five years pendente lite and future against the

defendants jointly and severally till possession of the suit property is received by

the appellant/plaintiff. Appellant is also awarded interest at 9% per annum simple

on mesne profits from the end of the month for which mesne profits are payable in

terms of the ratio of the judgment of the Supreme Court in the case of Indian Oil

Corporation vs. Saroj Baweja 2005(12) SCC 298. Decree sheet be prepared. Trial

Court record be sent back.

18. Finally, in view of the observations which have been made by the Supreme

Court in the case of A. Shanmugam (supra), I give opportunity to the

appellant/plaintiff to file an application under Section 340 Cr. P.C for taking

appropriate action against the respondents/defendants.

The appeal is allowed and disposed of with the above observations.

MAY 16, 2012                                       VALMIKI J. MEHTA, J.
ib