Shri Baldev & Ors. vs Sh. Mange Lal (Since Decd.Thr. ...
2014 Latest Caselaw 785 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  RSA No. 105/2008
%                                   11th February, 2014
SHRI BALDEV & ORS.                              ......Appellants
                   Through: Mr. Pravir K. Jain, Advocate.


                          VERSUS

SH. MANGE LAL (SINCE DECD.THR. L.RS) & ANR. ...... Respondents.
                   Through: Mr. Manoj Lahot, Adv. for R-1A to
                            1F

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

CM No. 7042/2008 (delay in refiling)

1.    For the reasons stated in the application, delay of 34 days in filing of

the appeal is condoned.


      CM stands disposed of.


RSA 105/2008

2.    This regular second appeal impugns the concurrent judgments of the

courts below; of the trial court dated 14.9.2005 and the first appellate court



RSA 105/2008                                                               Page 1 of 7
 dated 26.11.2007; by which the suit of the appellants-plaintiffs claiming the

reliefs of possession, mesne profits and injunction was dismissed.


3.    The disputes in the present case pertain to the property bearing no. D-

25( old no. RZ-D1/38) situated at Sitapuri, Dabri, Delhi.        Appellants-

plaintiffs claimed to have purchased the suit property from one Sh. Surat

Singh by means of documentation dated 27.10.1986.            The appellants-

plaintiffs claimed that they were thereafter put in possession by Sh. Surat

Singh till they were dispossessed by the defendant no.1/respondent no.1 in

the year 1993.      The subject suit was accordingly thereafter filed on

1.10.1999.


4.    The case of the respondents-defendants was that the appellants-

plaintiffs were not the owners but the suit property was purchased by the

respondent no.1-defendant no.1 by means of documentation dated

29.4.1987.     The suit property is stated to have been purchased by the

defendant no.1-respondent no.1 from Sh. Subh Ram Singh and who is said

to have purchased the property from Sh. Surat Singh. Respondent no.1-

defendant no.1 also claimed to be in possession of the suit property from the

year 1987.



RSA 105/2008                                                              Page 2 of 7
 5.    Trial court by its judgment dated 14.9.2005 decided the issue no.2

(pertaining to limitation) and issues no. 6 and 7 (claim of ownership of the

appellants-plaintiffs of the suit property) and the consequential entitlement

to the reliefs against the appellants-plaintiffs and in favour of respondent

no.1-defendant no.1. Issues 2,6 and 7 as framed read as under:-


      "(ii) Whether the suit is not maintainable in its present form as the
            same is barred by time as alleged in P.O. no.2 OPD
      (vi)     Whether the plaintiff is owner/landlady of the suit property?
               OPP
      (vii) Whether the plaintiff is entitled to a decree for
            possession/damages and mandatory/permanent injunction as
            claimed in the plaint?OPP"
6.    Appellate court has reaffirmed these findings and conclusions of the

trial court and held the suit to be barred by limitation as also that the

appellants-plaintiffs failed to prove the ownership of the suit property.


7.    Before I advert to the arguments urged on behalf of the appellants-

plaintiffs, it would be relevant to note that the appellants-plaintiffs did not

file the original documents dated 27.10.1986 on the basis of which property

was claimed to have been purchased. This is because as per the complaint of

the appellants-plaintiffs to the police marked 'B' dated 14.2.1993 showed

that the appellants-plaintiffs had given away the title documents to one Sh.

Samunder on account of having taken a loan from Sh. Samunder. Though it
RSA 105/2008                                                                Page 3 of 7
 was claimed by Smt. Sheela, wife of appellant no.1/plaintiff no.1, that she

had repaid the loan to Sh. Samunder but Sh. Samunder refused to return the

documents, no evidence has been led before the trial court of either the loan

having been taken from Sh. Samunder or of the loan amount being repaid to

Sh. Samunder. In fact, this complaint marked 'B' dated 14.2.1993 has been

relied upon by the courts below to hold the suit for possession of appellants-

plaintiffs as barred by time inasmuch as this complaint showed that

appellants-plaintiffs were dispossessed from the suit property in May, 1987

itself and the subject suit was filed in October, 1999 i.e after a period of 12

years.


8.       Entitlement of the appellants-plaintiffs to the reliefs of possession and

injunction can be either on the ground of ownership of the suit property or

on the ground of prior possession qua defendant no.1-respondent no.1. On

both these aspects the appellants have miserably failed inasmuch as no

original documents were filed of their (ie of Smt. Sheela w/o appellant

no.1/plaintiff no.1) ownership of the suit property but also the appellants-

plaintiffs failed to show that they came into possession and continued in

possession from 17.10.1986 till they were allegedly dispossessed in 1993 by

the respondent no.1-defendant no.1. Respondent no.1 on the other hand

RSA 105/2008                                                                   Page 4 of 7
 filed various documents which were exhibited in the trial court as Ex.DW1/1

to Ex.DW1/24 to show not only purchase of the suit property but also

possession thereof since 1988.    In these documents, the most material

document is the property tax notice to the respondent no.1 for the suit

property for the year 1988, Ex.DW1/15. The electricity receipts in favour of

respondent no.1 have been proved and exhibited as Exs.DW1/16(dated

29.7.1992) and DW1/17(dated 21.8.1989).


9.    Therefore, on the one hand, appellants-plaintiffs failed to prove the

ownership of the suit property as also their possession of the same from

1986, on the other hand respondent no.1-defendant no.1 at least showed

possession of the suit property from the year 1988 onwards.


10.   Learned counsel for the appellant, very vehemently urged before this

Court that the documents being the house tax assessment notice, which has

been relied upon by the courts below Ex.DW1/15 and the electricity receipts

Exs.DW1/16 and DW1/17 of the Delhi Electricity Supply Undertaking(

Govt. of Delhi) could not have been relied upon by the courts below

inasmuch as the documents were only photocopies and objection was taken

to exhibiting of these documents on account of the said documents being

photocopies and not the originals. The objection was thus raised to the mode

RSA 105/2008                                                             Page 5 of 7
 of proof of the documents and not to the authenticity of the documents. It is

argued that if the property tax assessment receipt and the electricity receipts

are taken away from the picture, there is no document to show possession of

the respondent no.1 till 1993 and therefore, actually the appellants-plaintiffs

should be held to have been dispossessed in 1993 for the suit to be within

limitation when filed on 1.10.1999.


11.   The argument urged on behalf of the appellants at the first blush

seems convincing, although only a hyper-technical one, inasmuch as the

documents of the Municipal Corporation of Delhi pertaining to house tax

assessment and for the electricity bills were undoubtedly challenged on the

ground of mode of proof though not on the ground of lack of authenticity.

However, on a deeper examination, the argument urged on behalf of the

appellants does not merit acceptance in view of Section 65(e) of the

Evidence Act, 1872 which states that where original is a public document

then secondary evidence of the same can be used. In my opinion, the house

tax assessment notice Ex.DW1/15 and the receipts of payment to electricity

authority dated 29.7.1992 and 27.7.1989 Exs. DW1/16 and DW1/17 can be

looked into by the courts as the original thereof in my opinion would be

public documents being of a public authority ie Delhi Electricity Supply

RSA 105/2008                                                                Page 6 of 7
 Undertaking. In any case, really appellants were the plaintiffs in the court

below, and they were seeking reliefs with respect to the suit property, and

therefore the onus of proof was upon them to show ownership and/or

possession of the suit property. In this, the appellants have miserably failed,

more so, on the basis of the complaint dated 14.2.1993, mark-B, and which

clearly admits that the appellants-defendants were not in possession in May,

1987 and thus the suit filed on 1.10.1999 would clearly be barred by

limitation.


12.   A second appeal under Section 100 CPC arises not when there are

issues of appreciation of evidence or that the two views are possible on the

basis of appreciation of evidence and the conclusions which are arrived at by

the courts below, but only if a substantial question of law arises.        No

substantial question of law arises in favour of the appellants for this second

appeal to be entertained in terms of Section 100 CPC.


13.   In view of the above, the appeal is therefore dismissed, leaving the

parties to bear their own costs.




FEBRUARY 11, 2014                             VALMIKI J. MEHTA, J.

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