Pratap Singh And Others vs Union Of India And Others
2013 Latest Caselaw 5746 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                            R.S.A. No.185 of 2013

                                     Decided on : 12th December, 2013

PRATAP SINGH & ORS.                                 ...... Appellants
             Through:             Mr. A.K. Bajpai & Mr. M.F. Khan,
                                  Advocates.

                         Versus

UNION OF INDIA & ORS.                                 ...... Respondents


CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal filed by the appellants under

Section 100 CPC against the order dated 28.5.2013 passed by the learned

Additional District Judge dismissing the appeal of the appellants being

R.C.A. No.87/12/12.

2. Briefly stated that facts of the case are that the plaintiffs/appellants

who were originally 13 in number filed a suit bearing No.238/2006 in the

year 1985 for permanent injunction against Union of India, Delhi

Administration, Delhi Development Authority and The Secretary, Land

and Building. The case of the appellants was that they were in

occupation and absolute possession of agricultural land as tenants bearing

khasra No.125 measuring 9 bighas and 18 biswas situated in the revenue

estate of Dhakka, Delhi. It was alleged that the joint share of the plaintiff

Nos.1 to 6, 7 to 9 and 10 to 13 as in the original plaint was to the extent

of 1/5th each. It was alleged that they were threatened to be dispossessed

by the respondents without due process of law and accordingly, they filed

the suit against their dispossession from the said khasra. The suit was

contested by the DDA which took the plea that the disputed land was

transferred to the DDA vide notification No.F-8 (49)/63 L&H by the

respondent No.4, Land Acquisition Authority. It was alleged that the

appellants were unauthorized occupants and, therefore, they were not

entitled to the land in question.

3. On the basis of these pleadings, issues were struck and parties were

permitted to adduce evidence and the suit was decreed by the Civil Judge

in favour of the appellants holding that they were proved to be in settled

possession from the year 1946 to 1983. The trial court also took into

consideration that the suit land was a Government land and, therefore, the

appellants being in settled possession could be dispossessed only except

in accordance with due process of law. Yet ,the suit was dismissed on

merits on 7.9.2012 holding that the plaintiffs/appellants are not entitled to

injunction.

4. The appellants feeling aggrieved by the aforesaid judgment,

preferred an appeal being R.C.A. No.87/12/12 and the appellate court

affirmed the finding of the trial court and dismissed the appeal on

28.5.2013. While dismissing the appeal of the appellants, the court also

took note of the fact that there was no evidence proved on record by the

appellants that they were in possession of the suit and moreover, none of

the appellants had appeared in the witness box and consequently, the

court observed in the absence of any appellants having testified before the

court, the suit could not have been decreed.

5. Still not feeling satisfied, the appellants have filed the present

regular second appeal. In this appeal, the learned counsel for the

appellants has raised the question that it is not necessary for any of the

appellant to enter into the witness box in order to prove his case. He has

accordingly stated that this raises a substantial question of law as one of

the grounds for dismissal of the appeal of the appellants by the first

appellate court is that none of the appellants had entered into the witness

box. In this regard, in support of his submissions, the learned counsel has

relied upon Om Parkash vs.Inder Kaur; 156 (2009) DLT 292 (DB) and

Durga Dass Banka vs. Ajit Singh & Ors.; R.S.A. No.149/2011.

6. I have gone through the said two judgments. The Supreme Court

in case titled Man Kaur (dead) by LRs. Vs. Hartar Singh Sangha; (2010)

10 SCC 512 has clearly laid down that a plaintiff cannot succeed in a suit

unless and until he appears in the witness box and testifies before the

court with regard to the averments made in the plaint. The only exception

to this is that an attorney can appear as a witness where he is closely

related and is privy to the transaction as well as knows the averments

made in the plaint that he can, in a given situation, testify as a witness.

7. In the instant case, the suit was filed by as many as 13 plaintiffs;

some of whom have now expired and are represented by the legal heirs

but none of the original plaintiffs have appeared in the witness box. They

have sought to prove their possession of the land in question through two

witnesses of the village. One of the witness, PW-1, is Jagdish, who was

examined in 1995 and, supporting the case of the appellants, has stated in

his examination that the father of the appellants and Shankar Singh used

to cultivate the land since 1946 and even prior to that. It may be pertinent

to refer to the cross-examination of the said witness wherein he expressed

his ignorance with regard to the factum of acquisition of the land or the

entries made in the revenue record. Moreover, the age of the witness is

given as 57 years in 1995, that means around the time in 1946 or prior

thereto, his age was just 9 years. He could hardly be aware of the fact as

to whether the land in question was being cultivated by the predecessor-

in-interest of the present appellants even prior to 1946 or not. Therefore,

this clearly shows that the testimony of PW-1 is not credit worthy as it

seems to be based merely on hearsay rather than actual state of affairs

existing at that time. Similar is the testimony of the eye witness from the

villager. It is very strange that when the appellants or their predecessor-

in-interest who were originally 13 in number and had chosen to file the

suit, none of them could examine himself as witness in support of his case

or their case which was very essential. I, therefore, feel that this question

as to whether the proof of the appellants being in possession or not, was

essentially a question of fact which had to be decided in their favour only

on the examination of any of the appellants. The non-examination of the

appellants and the consequences thereof cannot be treated to be a

question of law or much less a substantial question of law.

8. Even if we ignore this fact, the two judgments which have been

relied upon by the appellants in support of their case to contend that the

non-examination of any of the witness is not vital to the case of the

appellants are not applicable to the facts of the present case. In Om

Parkash's case (supra), the facts were that it was a case under the Delhi

Rent Control Act which is totally different statute and the eviction

petition was filed on the ground of bona fide requirement. In Dugra

Dass's case (supra), the appellant had not appeared although the suit was

filed by him. He had filed his affidavit by way of evidence subjecting

him to partial cross-examination but his cross-examination could not be

concluded as he was taken seriously ill being an old man of 85 years of

age. It was in such a contingency that the High Court observed that the

non-examination of the appellant in the said case was not fatal and he

could testify through an attorney, who happens to be his son.

9. In the instant case, there is no such factual similarity or no attorney

of any of the appellant has testified saying that he has the information

about the actual possession of the appellants in respect of the land in

question. I, therefore, feel that the present appeal does not raise any

question of law much less a substantial question of law. Accordingly, the

same is dismissed.

V.K. SHALI, J.

DECEMBER 12, 2013 'AA'