Kuldeep Balhara vs Manoj Kumar & Anr.
2014 Latest Caselaw 1031 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment delivered on: February 25, 2014

+                    C.R.P. 160/2012 & C.M. No.21293/2012

       KULDEEP BALHARA                                           ..... Petitioner
                   Through                 Mr.Ravi Gupta, Sr.Adv. with
                                           Mr.Ankit Jain, Adv. along with
                                           petitioner in person.

                              versus

       MANOJ KUMAR & ANR                                      ..... Respondents
                   Through                 Mr.Akhilesh Arora, Adv.

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By way of the present petition under Section 115 CPC, the petitioner has assailed the order dated 28th August, 2012 passed by the learned Trial Court in a suit for restoration of possession filed by the petitioner under Section 6 of the Specific Relief Act in respect of the property bearing flat No. B- 947, 1st Floor, Sector-1, Avantika, Rohini, Delhi (hereinafter referred to as the "suit property").

2. Brief facts for the purpose of adjudication of the present petition are that the petitioner had filed a suit for restoration of possession against the respondents stating that the petitioner had purchased the suit property from the one Hamera w/o Zaheer Ahmad on 24th October, 2007 for a consideration of Rs.2,25,000/- vide registered documents of sale/purchase, however, the actual physical possession of the suit property was handed over

to the petitioner by Hamera on 18th September, 2007 as the sale consideration was being paid by the petitioner in parts since July, 2007. It was stated that the estranged husband of Hamera had snatched the original title deeds of the suit property regarding which a case filed by her against her husband and others is pending. The petitioner purchased the suit property on production of the certified copies regarding the title of the suit property in favour of Hamera.

3. The petitioner stated that the petitioner undertook repairs and renovation of the suit property due to the complaints from the neighbours Sh. Narender Kumar Makhija and Sh. Sunil. The petitioner contended that he kept his books and furniture in the suit property. It was averred that on 16th September, 2008 the petitioner got to know that the lock over the suit property was broken and had been replaced by a new lock. On enquiries from Sh.Makhija, it was revealed that the respondent No. 1 had entered the suit property claiming himself to be the owner thereof and that the respondent no.1 had been coming to suit property since 12 th September, 2008. The petitioner thereafter filed a complaint against the respondent no.1 and others and got an FIR registered subsequently.

4. On the other hand, the respondent No.1 contended that he had purchased the suit property from respondent No.2 by virtue of documents being GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter and Will all dated 11th September, 2008 and that the possession was also handed over. Thereafter the respondent No.1 was receiving threats from the petitioner to illegally dispossess him from the suit property and consequently the respondent no.1 filed a suit for injunction against the petitioner. It was further stated that the respondent No.1 in order to buy mental peace and

remain away from the harassment cause by the petitioner had approached respondent No.2 who had purchased back the suit property from respondent No.1 on 5th March, 2009 and revoked the documents executed by respondent No.2 in favour of respondent No.1.

5. Respondent No.2 contended that the suit property had been sold by Smt. Hamera to the father of respondent no.2 in the month of July, 2006 vide GPA, SPA and other documents and possession also was handed over alongwith complete chain of documents and that the possession of the suit property was with respondent No.2 since July, 2006 except for the period w.e.f. 12th September, 2008 till 5th March 2009 when the suit property was in possession of respondent No.1. The father of the respondent No.2 died in March 2008 and after his death the property was sold by respondent No.2 to respondent No.1 to pay off the loans.

6. It was averred by the respondents that the petitioner in collusion with Smt. Hamera lodged false complaints with regard to theft of title deeds and later through forged documents sold the suit property to the petitioner.

7. On pleadings of the parties the issues were framed. The petitioner examined four witnesses, namely, himself, Smt. Hamera, Sh. Makhija (neighbour) and Rajesh Kumar (providing the bills towards repairs), while the respondent No.2 examined only one witness i.e. himself.

8. The learned Trial Court on consideration of the matter observed that the burden to prove that the petitioner was in possession of the suit property was on the petitioner, however, the petitioner had failed to produce any documentary evidence to establish his possession over the suit property. It was further observed that though the petitioner had examined Sh. Rajesh Kumar to prove the bills regarding purchase of the construction material by

the petitioner, merely because the address of the suit property had been mentioned in the bills, that did not establish possession of the petitioner over the suit property. The learned Trial Court also noticed that there was contradiction in the testimonies of the petitioner and that of Smt. Hamera regarding the receipt of the amount of sale consideration at the time of handing over the possession of the suit property to the petitioner. The learned Trial Court opined that the possibility of collusion of the petitioner and Smt. Hamera could not be ruled out since she was represented by the petitioner in her previous litigation with her husband. The third witness of the petitioner appeared unreliable and an interested witness to the learned Trial Court who changed his statements frequently.

9. The petitioner contended before the learned Trial Court that respondent had not produced on record any material to establish his possession in the suit property nor had he examined respondent No,1 to establish that the possession was transferred to the respondent No.1 by respondent No.2 and subsequently it was re-transferred to respondent No.2 by respondent No.1. The learned Trial Court in this regard observed that the contention of the petitioner was without merits since the suit had not been filed by the respondent but by the petitioner and the initial burden to establish his possession in the suit property was on the petitioner. It was further observed that since the petitioner had failed to establish his possession in the suit property, the burden had never shifted on the respondent to establish that the petitioner was not in possession. It was opined that since the petitioner had failed to establish his possession over the suit property, he was not entitled to decree of possession as prayed.

10. The suit of the petitioner was accordingly dismissed with the aforesaid observations made by the learned Trial Court and aggrieved thereof the petitioner filed the present revision petition.

11. The petitioner in the present matter claimed that he became owner of the property on 24th October, 2002 by virtue of sale agreement Ex. PW1/3, General Power of Attorney (Ex. PW1/4), receipt (Ex. PW1/5) and affidavit (Ex. PW 1/6).

12. The respondent No.2 Sh. Anand Parkash DW-1 claimed by ownership prior to petitioner by virtue of GPA (DW 1/1), Agreement to Sell (Ex. DW 1/2), Affidavit (Ex. DW 1/3) and possession letter (Ex. DW 1/4) and receipt (DW 1/57) and Will (DW 1/6). All these documents were executed by Smt. Humera in favour of his father Sh. Ajit Singh in July, 2008.

13. All these documents are relevant documents in order to decide the dispute between the parties. The petitioner has not filed the copies of these exhibited document. In the absence of these documents, it is not possible to arrive at any conclusion in the present matter.

14. Trial Court record is hence necessary to examine the validity of these documents. The respondents have also not filed their documents.

15. Under these circumstances, the petitioner is directed to file certified copy of these documents within eight weeks from today. Registry is to summon the Trial Court for the next date of hearing.

16. As far as the interim order in the present case is concerned, the same is made absolute during the pendency of the present revision petition. The respondents till further orders shall not create any third party interest in the suit property. C.M. No.21293/2012 is disposed of.

C.R.P. 160/2012

List the matter for disposal on 2nd July, 2014.

(MANMOHAN SINGH) JUDGE FEBRUARY 25, 2014