Krishna Kaushik vs Suraj Bhan
2013 Latest Caselaw 3687 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 22nd August, 2013

+                               RFA 159/1997
       KRISHNA KAUSHIK                                      ..... Appellant
                   Through:             Mr. A.K. Pandey, Adv.

                                     versus
       SURAJ BHAN                                         ..... Respondent

                          Through:      Ms. Shobhaa Gupta, Adv. for LRs
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The appeal impugns the judgment and decree dated 24 th January, 1997 of the Court of the Addl. District Judge, Delhi of dismissal of Suit No.806/1994 filed by the appellant/plaintiff for recovery of possession of property on land ad measuring 70 sq. yds. out of „2028‟, Village Pilanji, Kotla Mubarakpur, New Delhi and for recovery of mesne profits/damages for use and occupation.

2. The appeal was admitted for hearing. Vide interim order dated 5 th March, 1998 the respondent/defendant was restrained from creating any third party interest in the property. The said order was on 13 th August, 1998 made absolute till the disposal of the appeal; it was further ordered that the respondent/defendant will not raise any construction on the suit property. The appeal was dismissed in default of appearance of the appellant/plaintiff on 3rd December, 2009 but was on application of the appellant/plaintiff

restored. On 25th August, 2010 it was reported that the respondent/defendant had died. The appellant/plaintiff did not take any steps for bringing on record the legal representatives of the respondent/defendant and again stopped appearing and the appeal was again dismissed as abated on 20th July, 2011. The application filed for restoration was also dismissed on 9 th May, 2012 since the appellant/plaintiff by then had also not taken steps for impleadment of the legal representatives of the respondent/defendant. Thereafter applications for setting aside of the abatement and for impleadment of the legal representative of the respondent/defendant and for restoration of the appeal and for condonation of delay in applying therefor were filed and allowed on 11th July, 2013 on the condition of the appellant/plaintiff paying costs and the appellant/plaintiff arguing the appeal on merits on the next date. The costs imposed are reported to have been paid.

3. Though the counsel for the appellant/plaintiff today started by seeking adjournment but upon being reminded of the condition that the applications for restoration etc. were allowed subject to the appeal being argued on merits today, has made his submissions. The counsel for the respondent/defendant states that she does not have the suit file and is thus unable to argue. However the appeal being of the year 1997, it is not deemed expedient to adjourn and the appeal and the suit records have been perused.

4. The appellant/plaintiff filed the suit from which this appeal arises pleading:-

(a). that the property aforesaid was owned by one Shri Jagan Singh S/o Chaudhary Hari and comprised of land ad measuring 70 sq. yds. and one room and two tin sheds constructed thereon along with some open space;

(b). that the said Shri Jagan Singh was in possession of the property and vide Agreement to Sell dated 22 nd February, 1989 agreed to sell the same to the appellant/plaintiff and delivered vacant peaceful physical possession of the property to the appellant/plaintiff at the time of execution of the Agreement to Sell on 22nd February, 1989;

(c). that as the Sale Deeds were banned in the locality, the entire sale consideration of Rs.40,000/- was paid by the appellant/plaintiff to the said Shri Jagan Singh who besides the Agreement to Sell also executed a receipt therefor and a General Power of Attorney, a Special Power of Attorney and a Will with respect to the said property in favour of the appellant/plaintiff;

(d). that the appellant/plaintiff thus came into possession of the suit property on 22nd February, 1989; and,

(e). that the respondent/defendant illegally and unauthorizedly took possession of the said property from the appellant/plaintiff on 25th February, 1989 i.e. within three days of the appellant/plaintiff coming into possession thereof; though the appellant/plaintiff tried to take back possession but the

respondent/defendant lodged a Police complaint and the Police asked the appellant/plaintiff not to take the law in his own hands.

The appellant/plaintiff thus sought the reliefs of recovery of possession of the property and recovery of mesne profits/damages for use and occupation.

5. Summons of the suit were issued to the respondent/defendant who filed a written statement defending the suit on the grounds:-

(i). that the suit was bad for non-joinder of Shri Jagan Singh from whom the appellant/plaintiff claimed to have purchased the property;

(ii). that the suit was not properly valued for the purposes of Court Fees and jurisdiction;

(iii). that Shri Jagan Singh had no right, title or interest in the property and was never in possession or occupation of the property and had no right to convey any interest therein to the appellant/plaintiff;

(iv). that the respondent/defendant was in occupation and possession of the property since the year 1952 and was owner thereof by adverse possession and carrying on business of manufacturing and selling Earthern Pots therefrom and also residing along with his family therein;

(v). that the respondent/defendant had been paying charges for the electricity connection installed in the premises since December, 1984 and had also got installed a water connection in the premises and was paying charges thereof since December, 1987;

(vi). that on 25th February, 1989 it was the appellant/plaintiff‟s son who had attempted to dispossess the respondent/defendant from the said property and of which report was lodged with the SHO Police Station Kotla Mubarakpur vide DD No.60-B dated 25th February, 1989;

(vii). that on 11th April, 1990 the appellant/plaintiff‟s son had again made an effort to forcibly dispossess the respondent/defendant but owing to timely intervention of the flying squad of the Police, the said attempt was thwarted;

(viii). that the respondent/defendant thereafter filed a suit against the son of the appellant/plaintiff namely Shri Uma Shankar Kaushik to restrain him from dispossessing the respondent/defendant from the property and in which the said Shri Uma Shankar Kaushik gave a undertaking not to dispossess the respondent/defendant forcibly from the suit property; and

(ix). that the documents viz. Agreement to Sell, Power of Attorney, Will if any executed by Shri Jagan Singh in favour of the appellant/plaintiff were of no avail.

6. The appellant/plaintiff filed a replication. In response to the objection of the respondent/defendant of the suit being bad for non-impleadment of Shri Jagan Singh, it was pleaded therein that Shri Jagan Singh was not a necessary party as the suit was "for possession after dispossession and as such, Shri Jagan Singh is not necessary party in the present suit". It was further pleaded in the replication that the entire area was known by the number 2028, Village Pilanji and the respondent/defendant was living in another portion of plot No.2028 and not in the suit premises. It was also denied that there were any electricity or water connections in the property. Else, the contents of the written statement were controverted and the contents of the plaint reiterated.

7. On the pleadings of the parties, the following issues were framed on 17th March, 1992:-

"1. Whether the plaintiff came in possession of the portion as shown in red in site plan on 22.2.89 and remained in possession of the same thereafter and whether he has been dispossessed by the defendant? OPP

2. whether Sh. Jagan Singh was ever in possession and owner of the suit portion? OPP

3. Whether the suit property has not been properly valued and is not maintainable and this Court has no jurisdiction to try this suit? OPD

4. Whether the suit is bad for non-joinder of Shri Jagan Singh and whether it is necessary to implead Shri Jagan Singh as a defendant? OPD

5. Whether the plaintiff is entitled to relief claimed and mesne profits if so at what rate? OPP

6. Relief."

and on the application of the appellant/plaintiff the following additional issue was framed on 17 th October, 1996:-

"Whether the defendant had become the owner of the property in dispute by adverse possession as alleged in the preliminary objections of the written statement? OPD

8. The appellant/plaintiff did not enter the witness box and examined her son Shri Keshav Kumar Kaushik as PW3, one Shri Des Raj as PW1 and one Shri Partap Singh s/o Shri Jagan Singh aforesaid as PW2. Shri Jagan Singh who was admittedly alive and residing in the same village Pilanji in house No.1957 was not examined. The respondent/defendant besides examining himself examined seven other witnesses. The son of the appellant/plaintiff Keshav Kumar Kaushik examined himself in rebuttal also.

9. The learned Addl. District Judge has vide impugned judgment dismissed the suit observing/finding/holding:-

A. that the suit of the appellant/plaintiff for the relief of possession was on the basis of prior possession and dispossession and not on the basis of title; the appellant/plaintiff was thus required to prove her possession of the property;

B. PW1 namely Shri Des Raj, a witness to the Agreement to Sell, Power of Attorney and Will executed by Shri Jagan Singh in favour of the appellant/plaintiff, examined by the appellant/plaintiff had not deposed that possession of the property was handed over in his presence to the appellant/plaintiff;

C. PW2 Shri Partap Singh s/o Shri Jagan Singh, also a witness to the documents aforesaid, though had deposed that physical possession of the property was handed over but in cross examination had admitted that he was living separately from his father Shri Jagan Singh and that the property before delivery of possession to the appellant/plaintiff was lying vacant without any lock;

D. both the aforesaid witnesses were not summoned witnesses and had admitted to have come to depose at the behest of the son of the appellant/plaintiff;

E. that the appellant/plaintiff neither examined herself nor the most material witness Shri Jagan Singh and there was no explanation for non-examination of Shri Jagan Singh who was claimed to have delivered the possession of the property to the appellant/plaintiff;

F. on the contrary the respondent/defendant had proved the electricity and water bills in his name of a date prior to the alleged purchase by the appellant/plaintiff as well as ration card and other documents at the address of the said property;

G. the evidence showed the respondent/defendant‟s possession of the property since prior to 22 nd February, 1989 on which date the appellant/plaintiff claimed to have come into possession of the property;

H. that it was the respondent/defendant who had filed the report with the Police of the attempts of the son of the appellant/plaintiff to dispossess the respondent/defendant from the property and had also filed the suit in this regard.

Accordingly,

(a). issue no.1 aforesaid was decided against the appellant/plaintiff and in favour of the respondent/defendant;

(b). qua issue no.2 the learned Addl. District Judge had held that the same could not be decided in the absence of Shri Jagan Singh who had not been impleaded as a party;

(c). the issues no.3&4 being the technical issues were decided in favour of the appellant/plaintiff and against the respondent/defendant; and,

(d). qua the additional issue framed also it was held that in the absence of Shri Jagan Singh no finding with respect thereto could be given.

Resultantly, the suit was dismissed.

10. The counsel for the appellant/plaintiff has today sought to argue that the appellant/plaintiff on the basis of the Agreement to Sell, Power of Attorney and Will executed by Shri Jagan Singh in favour of the appellant/plaintiff had a better title than the respondent/defendant.

11. It has however been enquired from the counsel for the appellant/plaintiff whether the suit of the appellant/plaintiff for the relief of

possession was on the basis of title or on the basis of prior possession and dispossession.

12. The counsel for the appellant/plaintiff weakly sought to argue that it was on the basis of both.

13. However the appellant/plaintiff as aforesaid is found to have taken a categorical stand in the replication that the claim for the relief of possession was on the basis of prior possession and dispossession. Not only so, the appellant/plaintiff did not press or seek the framing of any issue on her title to the property. The appellant/plaintiff thus cannot be heard to today urge that the suit was on the basis of title as well. I may notice that even in the Memorandum of Appeal no such ground has been taken that the claim for possession in the suit was on the basis of title also or that the issue of title to the property was pressed and not framed by the learned Addl. District Judge.

14. Thus the only enquiry which was/is to be done in the present case was, whether the appellant/plaintiff had established possession for three days between 22 nd February, 1989 and 25th February, 1989 and of dispossession on 25 th February, 1989. If the appellant/plaintiff fails in the said enquiry, the question as to what was the title if any of the respondent/defendant is of no relevance in as much as if the appellant/plaintiff is not found to have been in possession of the property or to have been dispossessed therefrom, the appellant/plaintiff in a suit for recovery of possession on the basis of prior possession and dispossession cannot, recover possession. Reference in this regard can be made to (i)

Yar Muhammad Vs. Lakshmi Das AIR 1959 ALL 1 (FB); (ii) Rame Gowda Vs. M. Varadappa Naidu (2004) 1 SCC 769; and, (iii) Roop Lalwani Vs. Sunita Lalwani MANU/DE/2633/2009.

15. The only evidence which the appellant/plaintiff led of prior possession is the Agreement to Sell, Receipt, General Power of Attorney, Special Power of Attorney and Will executed by Shir Jagan Singh in favour of the appellant/plaintiff and which record Shri Jagan Singh having delivered the possession of the property to the appellant/plaintiff.

16. It has however been enquired from the counsel for the appellant/plaintiff whether there is anything to show that Shri Jagan Singh was in possession of the property so as to be in a position to deliver the said possession to the appellant/plaintiff.

17. The counsel for the appellant/plaintiff has invited attention to Ex.PW3/2, deposed in the testimony of the son of the appellant/plaintiff as the certified copy of the Khasra Girdawari. The counsel for the appellant/plaintiff has argued that the learned Addl. District Judge has not considered this vital document which shows the possession of the appellant/plaintiff.

18. The said document is found to be in Urdu language and no English or Hindi translation thereof is found in the Trial Court record. Perhaps for this reason only reference thereto remained to be made in the judgment of the learned Addl. District Judge. However the counsel for the appellant/plaintiff has today in Court handed over an English translation of the said document and which is taken on record. The said English

translation pertains to land in Khasra No.491/6 ad measuring 2 bighas and 8 biswas and described as Gair Mumkin Plot in possession of residents of Village Pilanji and change of right of possession of 1½ biswas whereof is recorded in the name of the appellant/plaintiff "under control of Shri Jagan Singh" . Though the English translation handed over by the counsel for the appellant/plaintiff does not show the date on which the change of right of possession in the name of the appellant/plaintiff was recorded but the counsel for the appellant/plaintiff from the date mentioned in the document in Urdu language states that the said mutation was carried out on 19th April, 1989.

19. It has been put to the counsel for the appellant/plaintiff as to how the change of possession if recorded on 19 th April, 1989 in the name of the appellant/plaintiff could have been recorded when admittedly as per the appellant/plaintiff also, on that date the respondent/defendant was in possession.

20. The counsel for the appellant/plaintiff states that the application therefor may have been moved on 22 nd February, 1989.

21. However this is all speculation and there is neither evidence nor any document to the said effect. The document Ex.PW3/2 thus does not advance the case of the appellant/plaintiff in any manner whatsoever. Moreover, there is no reference to plot No.2028 on the said document.

22. The counsel for the appellant/plaintiff however now at the time of dictation interjects and states that the certified copy of the Khasra Girdawari Ex.PW3/2 was in fact issued on 19 th April, 1989 and he cannot

give the date on which the change of possession of 1½ biswas in the name of the appellant/plaintiff was recorded.

23. The counsel for the appellant/plaintiff on enquiry states that one biswa is about 40 sq. yds. However the senior counsel conversant with the same present in Court in some other matter informs that one bigha has 20 biswas and one bigha is equal to 1080 sq. yds. and thus one biswas would be approximately 50 sq. yds. Going thereby, 1½ biswas would be little in excess of 75 sq. yds.

24. I may in this regard also notice that there is a controversy also with respect to the description of the property, with the respondent/defendant disputing the boundaries thereof as given in the plaint. However neither was any issue framed on the said aspect nor was any evidence led by the appellant/plaintiff.

25. I am also entirely in agreement with the learned Addl. District Judge that adverse inference in the present case has to be drawn against the appellant/plaintiff for not producing Shri Jagan Singh, through whom the appellant/plaintiff claimed to have come into possession of the property, in the witness box. It was the said Shri Jagan Singh alone who could have deposed that he was in possession of the property or had delivered possession thereof to the respondent/defendant; he only could have been cross examined on his claim if any of being in possession of the property. The appellant/plaintiff instead of examining Shri Jagan Singh examined his son who was admittedly not residing along with Shri Jagan Singh. Though PW1 examined by the appellant/plaintiff also

sought to prove as Ex.PW1/1 a certificate issued by the Gram Vikas Samiti of Kotla Mubarakpur to the effect that Shri Jagan Singh was the owner of the property but in cross examination could not establish that he was authorized to issue any such certificate. Again it could have been Shri Jagan Singh who could have deposed about his title and possession of the property.

26. Though it is the case of the appellant/plaintiff that the electricity and water connections and other documents proved by the respondent/defendant to show his possession pertained to some other property in plot No.2028 but the appellant/plaintiff has failed to lead any evidence on the said aspect also. I have gone through the testimonies of the three witnesses of the appellant/plaintiff and the same are absolutely silent in this regard, though the son of the appellant/plaintiff appearing in rebuttal evidence stated that the respondent/defendant was living in an adjacent property belonging to Shri Prem Raj Singh but again the said Shri Prem Raj Singh or any other person of the locality was not produced. The appellant/plaintiff has thus not been able to dislodge the documentary evidence proved by the respondent/defendant of being in possession of the premises.

27. I am also intrigued by the fact that though the appellant/plaintiff claims to have been the victim of dispossession at the instance of the respondent/defendant but no Police complaint though claimed to have been made of such dispossession has been proved. On the contrary the respondent/defendant has proved as Ex.DW4/2 the complaint made on 25th February, 1989 of the attempt by the son of the appellant/plaintiff.

Ordinarily it is the victim who is expected to rush to the Police and the appellant/plaintiff is found to be lacking on this score also.

28. No error is thus found in the impugned judgment of the learned Addl. District Judge.

29. I may also mention that the only statement given by Shri Uma Shankar Kaushik son of the appellant/plaintiff in the suit filed by the respondent/defendant for injunction was that he was not connected to the subject property and that he had never attempted to forcibly dispossess the respondent/defendant therefrom and that the respondent/defendant was in possession of one room only. It was at that stage also not stated that it was in fact the respondent/defendant (who was plaintiff in that suit) who had disposed the appellant/plaintiff from the property on 25 th February, 1989. The said suit was filed by the respondent/defendant against Mr. Kaushik, proprietor of M/s Electronics Alarms at 2028, Village Pilanji, Kotla Mubarakpur, New Delhi. From the same it appears that the appellant/plaintiff and her family, besides the suit property also had a presence in the same locality. The counsel for the appellant/plaintiff is unable to inform as to who was the proprietor/partner of M/s Electronic Alarms or as to what was the connection of the appellant/plaintiff or her family to the property where the business of Electronic Alarms was being carried on.

30. No merit is thus found in the appeal which is dismissed. Sufficient costs having already been paid to the counsel for the respondent/defendant on the earlier occasion and the counsel for the respondent/defendant having chosen not to argue today, no order as to costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J

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