Shri Madan Singh And Ors. vs Shri Ladli Pershad Jaiswal ...
2014 Latest Caselaw 663 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA Nos.48-50/2006 & 45-47/2006

%                                                   4th February, 2014

1.    RSA No.48-50/2006

SHRI MADAN SINGH AND ORS.              ......Appellants
                  Through: Mr. P. N. Bhardwaj, Advocate.

                          VERSUS

SHRI LADLI PERSHAD JAISWAL (THROUGH LRS) AND ORS.
                                         ...... Respondents

Through: Mr. B.K.Sood, Advocate.

2.   RSA No.45-47/2006

SHRI MADAN SINGH AND ORS.              ......Appellants
                  Through: Mr. P.K. Bhardwaj, Advocate.

                          VERSUS

SHRI LADLI PERSHAD JAISWAL (THROUGH LRS) AND ORS.

...... Respondents Through: Mr. B.K. Sood, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

RSA No.48-50/2006 and C.M. No.1955/2006 (stay)

1. This Regular Second Appeal impugns the concurrent judgments

of the courts below; of the trial court dated 31.1.2000 and the appellate court

dated 16.9.2005; by which the suit of the respondents/plaintiffs for

possession with respect to property bearing No.476, Haveli Haider Quli,

Chandni Chowk, Delhi has been decreed.

2. The facts of the case are that the respondents/plaintiffs were the

owners of the adjoining property bearing No. 477, Haveli Haider Quli,

Chandni Chowk, Delhi. That the appellants are tenants of the

respondents/plaintiffs in this property bearing No.477 is not in dispute.

Appellants are said to have illegally encroached upon the suit property

bearing No.476, and therefore the subject suit for possession came to be

filed.

3. The only defence of the appellants/defendants was that they had

become the owners of the suit property by means of adverse possession and

with respect to which the trial court framed the issue No.2. In fact, issue

Nos.2 and 3 are connected because decisions on those entitle the

respondents/plaintiffs to possession of the suit property or entitle the

appellants/defendants to succeed in their claim of adverse possession.

4. The trial court with respect to issue Nos.2 and 3 has held as

under:-

The onus to prove this issue was upon the deft. Deft. In this connection relied upon the testimony of DW 1, DW 2 and DW 3. DW 1 inter-alia submitted that as regards 476 is concerned, he is tenant 1ua the suit property. However, the suit property in this case, before this court comprises of a portion of a property no. 476 old no. 260 which is adjacent to the property no. 477, old no. 261.

The onus to prove this issue was upon the deft. The pltf. On the other hand has relied upon the house tax receipts and house tax survey report where in the said property shown to be a "KHANDAR" in this year 1956 vide Ex. PW 3/4 and further in 1959 vide Ex. PW 3/5.

The deft. on the other hand submits that he has been occupying the said property since 1935. On the other hand, the pltf. Has submitted that the suit property was demolished in 1945 and in this connection, the record of Municipal Corporation of Delhi seeking the demolition charges is relied upon by the pltf. Which is Ex. PW 3/1. It is a well settled preposition of law that once a tenant onwards remain a tenant and tenant cannot claims himself to be owner in any event. I am also conscious of the fact that the suit property is in the tenanted portion It is a well settled preposition of law that in the face of documentary evidence and the oral evidence, the documentary evidence is to be relied and the oral testimony to explain the contents of the said documents is barred vide Section 91 & 92 of the Evidence Act. I, accordingly, of the opinion, as the demolition charges has been claimed by the M.C.D. and the property was lying demolished since 1945 and now the deft. was the tenant of the adjoining property which was 477, old no. 261 and however, only an access to the suit property would not ipse facto make the pltf. in possession over the same. The stand of the pltf. is that pltf. came to know about the possession of the deft. in July-August 1974 only and not prior to that. On the other hand the stand of the deft. is that deft. Was in occupation of the suit property since 1935 and the suit property was lying in the same condition since 1935. As the

landlordship/ownership of the pltf. has been held to be correct by him and as per the findings of issue no. 1, the deft. cannot be heard to deny the title of the pltf. qua the adjoining property. Even otherwise the property is lying in the demolished condition as per the report of the M.C.D., various house tax receipts and house tax survey and therefore, there is no question that anybody is possessing the land in question as the same is incapable of being used.

Accordingly, this issue is decided against the deft. and in favour of the pltf.

The onus to prove this issue was on the pltf. As I have already opined that pltf. is one of the co-owners of the property and as the deft. has not become the owner of the suit property as shown in colour red in the site plan, the only conclusion can be drawn that the deft. is an unlawful occupant of the portion shown in red colour in the site plan annexed with the plaint is July/August, 1974. It was argued before me by the Ld. counsel for the pltf. that the pltf. has not visited the site from 1945 till 1974 and the property was demolished in 1945 and the cause of action for the same is claimed being arisen in 1974. The pltf. has submitted in paragraph 6 of the plaint that the wrongful encroachment was done in July/August 1974 and the suit was accordingly filed in Sept. 1974. PW 3 Ladli Parsad in his cross- examination has told him in 1974 for the first time that he has taken wrongful possession of the property no. 476 and he has also denied that from 1945 there exists atin shed and a chatootra and ration shop in the portion of 476. As a matter of fact the property was demolished since 1945 and Ld. and the Ld. counsel for the deft. submitted that the deft. was carrying the business of ration shop In property no. 1962. In fact DW 3 has deposed that that the business of the cola depot was carrying on in property no. 476 and ration shop in 477. However, this stand of the deft. is not supported by the House Tax Survey which is Ex. PW3/4 and Ex. PW 3/5 which is in the year

1956 and in the year 1959, and the deft. been in occupation of the property no. 476 since 1935, and there was no occasion for the M.C.D. to show property no. 476 as "KHANDAR" in its survey of 1956. It is a well settled preposition of law that the criteria for deciding a particular issue in civil litigation is a preponderance of probability and plausibility beyond the shadow of doubt as is in the criminal litigation.

In the present case, the house tax assessment is to believed as there was no occasion to say that the house is a "KHANDAR" in 1956. More so, the same is coming from the independent source and not from the tenanted source. I, thus, hold that the deft. is a unlawful occupant as shown in red colour in the plan annexed with the plaint in July/August 1974." (underlining added)

5. It is therefore clear that the respondents/plaintiffs have proved

on record the property tax documents, including house tax receipts and

service tax report, to show that they are and have been acting as the owners

of the suit property bearing No.476. The relevant property tax documents

were exhibited and filed in the trial court as Ex.PW3/4 to Ex.PW3/5. The

respondents/plaintiffs are also shown as owners in the demolition notice

proved as Ex.PW3/1 to Ex.PW3/3.

6. The appellate Court has upheld these findings and conclusions

of the trial court by referring to the arguments made on behalf of the parties.

These relevant paragraphs are paras 7 and 8 of the impugned judgment of

the first appellate court dated 16.9.2005 and which read as under:-

"7. Whereas the counsel for the respondent has relied upon the same arguments as well as judgments which were filed in the Ld. Trial court. However, the counsel for the respondent has argued that the plaintiff/respondent has produced and proved on record the oral as well as the documentary evidence in his favour. So far as the ownership of the suit property bearing No. 476 including the portion red in the sit plan is concerned, the same including the houses bearing no. 477, 478, had come to the share of the plaintiff/respondent/Ladli Prasad and his brother vide judgment Ex. PW1/2 and the decree Ex.PW1/3 to the effect that the description of house no. 476 is the same which is mentioned in plan Ex. PW1/4 portion 'A' which shows the position of the house before demolition in the year 1945 by the Municipal committee, Delhi since it had become dangerous. The house No. 476 remained in possession of Ladli Prasad and the house/property no. 477 is in possession of Johri Mal as tenant and no portion of house No. 476 was no rent with Johri Mal who was looking after the property on behalf of Ladli Prasad. In the year 1974, the defendant/Johri Mal took wrongful possession of the portion of the land of the property no. 476. The house bearing old numbers 259, 260 and 261 of which new number are 475, 476, 477 and 478, By the partition decree Ex.PW1/3 proved on record, the said properties no. 260 and 261 came to the share of Ladli Prasad and his brothers. Property no. 476, 477 & 478 were never transferred to Karnal Distilleries, since the litigation between Karnal Distillery Company Ltd. and himself and his brothers was decided by the court of Sh. Ved prakash Aggarwal, the then Ld. Sub - Judge, vide judgment ExPW3/7 and the house tax assessment were also produced on record as Ex. PW3/8 and PW3/9. The notices as Ex.PW3/1, PW3/2 and Ex.PW3/3 issued by the municipal Committee Delhi after demolition demanding demolition charges also proved on record that these notices were addressed to Ladli Prasad, Shanti Prasad jaiswal and these notice were made to demand demolition charges of house No. 260 and 261, Haveli Haider Puri area Delhi. The Ld. Counsel for the respondent has further argued vide judgment dated : 24/11/1960

passed by Sh. Ved Prakash, Ld. Sub-Judge, Delhi, Ex.PW3/7 has also proved the ownership of the plaintiff/Ladli Prasad. The counsel for the respondent in support of his arguments has relied upon the judgments reported in Ram Narayana Arora Vs. Asha Rani 1998 (2) RCR 268 (SC), Virendra KashiNath Ravat and Anr. Vs. Vanayak N Joshi & Ors. 1998 (2) RCR 594 (SC) and Ajmer singh & Ors. Vs. Shamsher Singh alias Sher Singh & Ors 1987 (1) RCR 293 (P & H).

8. A perusal of the records reveals that as per judgment/decree Ex.PW-1/2 & Ex. PW-1/3 of the Ld Sub-judge Delhi, the properties including suit property had come to the share of the plaintiff/respondent as well as other defendants and the plaintiff/respondent became co-owner of the sit property in view of the said judgment and decree. The suit property comprises of portion of property no. 476 old no. 260 which is adjacent to the property no 477 old no, 261. The defendant/appellant has failed to prove his case on the part that he has been in possession of the suit property since 1955 whereas plaintiff/respondent has his case that the suit property was demolished in the year 1945, in this context the plaintiff has relied upon the demolition charges demanded by Delhi Municipal committee vide Ex. PW-3/1 hence as per the report of the municipal committee i.e report, survey and house tax receipt of the suit property was lying in the demolished condition then how the same could be used by defendant/appellant. The plaintiff has not visited the suit premises from 1947 till 1974 because the suit property was demolished in the year 1945 and cause of action has arisen in the year 1974 when the alleged wrongful possession was made in the year 1974 by the defendant/appellant over the suit property. The defendant/appellant has not led or proved on record the documentary evidence for this uninterrupted possession over the suit property whereas the plaintiff has proved on record oral as well as documentary evidence that he had a right of ownership of the suit property and that defendant/appellant has made wrongful possession over the suit property i.e bearing no. 476. The fact that

defendant/appellant was carrying on business of the coal-depot in the property bearing no. 476 and running a shop in property bearing no. 477 does not support the case of the defendant/appellant in view of the reports, house tax receipts and survey etc by the municipal committee of Delhi. With due respect to the Hon. Supreme Court and Hon. High Court the judgments relied upon by the counsel for the appellant are not applicable to the facts and circumstances of the present case. Hence, there is no illegality in the preliminary decree passed by the Ld. Trial court. Therefore, this appeal has not merits and same is dismissed. Decree-sheet be prepared accordingly. Copy of this judgment along with trial court record be sent to the Ld Trial court. Appeal file be consigned to the record room." (underlining added)

7. I put a query to the counsel for the appellants to show me

evidence, and especially clinching evidence by means of documentary

evidence, that the appellants/defendants had claimed title by adverse

possession against the respondents/plaintiffs, and to which counsel for the

appellants sought to draw the attention of this Court to various documents

showing the long possession of the appellants/defendants of the adjoining

tenanted premises. In my opinion, the argument urged on behalf of the

appellants is misconceived because even assuming we take possession of suit

property by the appellants/defendants, instead of really they being in possession

of the adjoining tenanted property bearing No. 477, yet, howsoever long the

possession is, the same is not an adverse possession unless the adverse

possession commences by means of proclaiming a hostile title to

the real owner and who are the respondents/plaintiffs in the present case. The

appellants/plaintiffs have not filed any documents to show hostile title over

the suit property bearing No.476.

8. In view of the above, no substantial question of law arises in

this appeal for being entertained under Section 100 CPC inasmuch as the

appellants/defendants have failed to prove, as rightly held by the courts

below, that they have become the owners by adverse possession. The appeal

is therefore dismissed, leaving the parties to bear their own costs.

+ RSA No.45-47/2006 and C.M. No.1954/2006 (stay)

9. In this appeal, the limited issue is with respect to rate of mesne

profits. I may note that the courts below have noted that none of the parties

have objected to the report of the Local Commissioner and therefore the

report of Local Commissioner was accepted. In fact, the present appeal is

against the subsequent judgment dated 24.7.2000 by which mesne profits

were granted, after the suit for possession itself was decreed in terms of the

judgment dated 31.1.2000 and the appeal against which I have dismissed by

the aforesaid judgment in RSA No.48-50/2006.

10. Counsel for the appellants states that the judgment in the

aforesaid appeal will also cover this issue and which I take with the fact that

the impugned judgment which is challenged in the present case is only for

mesne profits and there is no real challenge to the same for a substantial

question of law to arise under Section 100 CPC especially keeping in view

the fact that final decree for mesne profits has been passed on the report of

the Local Commissioner to which no objection was filed by either of the

parties. Dismissed. Parties are left to bear their own costs.

FEBRUARY 04, 2014                             VALMIKI J. MEHTA, J.
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