Ghasita Singh vs Ram Prag Koiree
2013 Latest Caselaw 223 Del

$~6

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+     RFA No. 674/2010 and CM Appl. Nos. 16886
      & 16888/2010
                               Decided on 15th January, 2013

      GHASITA SINGH                                  ..... Appellant

                            Through    :Mr. Anil Panwar, Adv.

                   versus

      RAM PRAG KOIREE                                ..... Respondent

                            Through    : Mr. Amarjeet Singh, Adv.

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J.(ORAL)


1.    By the judgment and decree impugned in this appeal trial

court has dismissed the suit for declaration and permanent

injunction filed by appellant against the respondent.

2.    Appellant had prayed in the plaint that by way of decree of

declaration it be held that respondent has no right, title or interest

in the property bearing no. D-563, Mahavir Enclave, Part III, New

Delhi - 110045 (for short hereinafter referred to as "suit property")



RFA 674/2010                                            Page 1 of 8
 and it is the plaintiff who is actual owner thereof. It was further

prayed that respondent be restrained from dispossessing the

appellant and his tenants from the suit property.

3.    Case, as set up by the plaintiff, in the plaint is that he had

purchased the suit property from one Mr. Triveni for a total sale

consideration of `60,000/- (Rupees Sixty Thousand Only) vide

General Power of Attorney, Agreement to Sell, Will, Receipt,

Affidavit etc. on 21st February, 1995. Mr. Triveni handed over

possession of the suit property to appellant. Respondent is brother

of Mr. Triveni. Brothers were not maintaining cordial relations,

thus, appellant allowed Mr. Triveni to continue to stay in the house

with him. Appellant looked after Mr. Triveni till he breathed his

last on 18th June, 1995. Tenants Mr. Ram Chander and Mr.

Joginder were also living in the suit property. Respondent never

visited his brother nor took his care. Even after the death of Mr.

Triveni appellant continued to remain in possession of the suit

property without any objection from the respondent. However, in

the 1st week of May, 1996, respondent approached the local police

claiming himself to be the owner of suit property. However, he



RFA 674/2010                                           Page 2 of 8
 failed to produce any proof of ownership to the police, thus, no

action was taken. Thereafter, respondent started blackmailing the

appellant by demanding `50,000/- (Rupees Fifty Thousand Only)

from him. Subsequently, on 8th June, 1996 respondent lodged a

frivolous complaint with the local police against the appellant.

Hence, the suit.

4.    In the written statement, respondent denied the averments

made in the plaint. It was stated that appellant was not the owner

of suit property and had no locus standi to file the suit. No cause

of action had arisen in favour of plaintiff to file the suit. Suit was

filed on the basis of documents on which signatures of Mr. Triveni

did not tally. It was denied that appellant had purchased the suit

property from Mr. Triveni. It was alleged that Mr. Triveni had

purchased the suit property from Mr. Surinder Kumar in the month

of December, 1989 with the help of respondent. Mr. Triveni raised

construction and started living in the suit property. Respondent's

family was a joint family and before shifting to the suit property

Mr. Triveni was living with the respondent at Madangir.

Respondent was in continuous touch with Mr. Triveni. After the



RFA 674/2010                                            Page 3 of 8
 death of Mr. Triveni, respondent became exclusive owner of the

suit property.   A vigilance enquiry was going on against the

appellant with regard to the fraud and cheating committed by him,

on the complaint of respondent. It was denied that Mr. Triveni had

handed over possession of the suit property to appellant. It was

also denied that General Power of Attorney, Will etc. were

executed by Mr. Triveni in favour of plaintiff. Respondent alleged

that he performed the last rites of his brother. Mr. Triveni had

confided in appellant that the documents were kept by him with his

friend, that is, appellant for safety purposes. When respondent

demanded the documents from the appellant he refused to hand

over the same. After the demise of Mr. Triveni suit property was

in the possession of respondent. It was under his lock and key.

Respondent continued to visit the suit property. On 12 th July, 1996

appellant broke open the lock of the suit property and took forcible

possession thereof. He also removed all the households articles of

respondent and a police complaint was filed in this regard. Market

value of the suit property was about `2.5 lacs and could not have

been sold for `60,000/- (Rupees Sixty Thousand Only). It was



RFA 674/2010                                           Page 4 of 8
 denied that possession of the suit property was handed over by Mr.

Triveni to the appellant and he in turn allowed Mr. Triveni to stay

with him.

5.     In the replication, appellant denied the averments made in

the written statement and reiterated and reaffirmed the averments

of the plaint.

6.     Following issues were framed by the trial court on 22nd

March, 1999:-

                 "1. Whether the plaintiff has locus
                 standi to file the present suit? OPP
                 2.     Whether the plaintiff has come to
                 the court without clean hands? OPD
                 3.     Whether the suit is without cause of
                 action? OPD.
                 4.     Whether Power of Attorney,
                 agreement to sell, affidavit are forged by
                 the plaintiff? OPD.
                 5.     Whether the signatures of Triveni
                 has also been forged as the attorney?
                 OPD.
                 6.     Whether the plaintiff is entitled for
                 a decree of declaration? OPP.
                 7.     Whether the plaintiff is entitled for
                 decree of permanent injunction as prayed?
                 OPP
                 8.     Relief."


7.     Despite several opportunities granted to plaintiff no evidence



RFA 674/2010                                                Page 5 of 8
 was led by him, consequently, vide order dated 22nd January, 2007,

plaintiff's evidence was closed. An application under Order 18

Rule 17 CPC was filed, which was also dismissed. Defendant also

did not lead any evidence, accordingly, defendant's evidence was

also closed on 12th November, 2007. Thereafter, trial court has

dismissed the suit vide impugned judgment and decree dated 28 th

January, 2010. It was held that the burden to prove the issue nos.

1, 6 and 7 was on the plaintiff which he had failed to discharge.

Similarly, onus to prove issue nos. 2 to 5 was on the defendant,

which he had also failed to discharge. In view of the fact that

plaintiff had failed to prove issue nos. 1, 6 and 7 the suit has been

dismissed.

8.    I do not find any illegality, impropriety or perversity in the

view taken by the trial court. A suit cannot be disposed of merely

on the basis of pleadings. Parties have to lead evidence to prove

their respective pleadings. Averments made in the plaint have to

be proved by the plaintiff by leading evidence in respect of the

issues framed onus whereof is on the plaintiff, before he is held

entitled to the reliefs claimed in the plaint. Averments made in the



RFA 674/2010                                           Page 6 of 8
 pleadings cannot be accepted without proof unless the same are

admitted by the adversary party. Whatever be the pleadings it is

necessary that the pleadings have to be substantiated by means of

evidence. Mere existence of pleadings does not mean proof of the

same. Since plaintiff did not lead any evidence despite several

opportunities granted to him, trial court has rightly dismissed the

suit.

9.      Learned counsel for the appellant has vehemently contended

that sufficient opportunities were not granted to the appellant to

lead evidence. However, his this contention has no force, which

point otherwise cannot be considered in the facts of this case.

Issues were framed in the year 1999 and thereafter several

opportunities were granted to the appellant to lead evidence. Be

that as it may, opportunity of the appellant to lead evidence was

closed on 22nd January, 2007.           This order has remained

unchallenged. An application under Order 18 Rule 17 CPC was

filed, which was also dismissed on 11th April, 2007. Even this

order was not challenged by filing appropriate petition before the

higher forum. It is not the case that after closing the evidence trial



RFA 674/2010                                            Page 7 of 8
 court has disposed of the suit in a hasty manner. Suit has been

disposed of after affording due opportunity of hearing to the parties

that too after about 2 years of closure of the evidence.

10.   Be that as it may, since plaintiff had failed to lead evidence

to prove the issues onus whereof was put upon him, trial court has

rightly dismissed the suit.

11.   For the foregoing reasons, appeal is dismissed.           All the

miscellaneous applications are disposed of as infructuous.



                                              A.K. PATHAK, J.

JANUARY 15, 2013 rb