Shri Om Parkash Sharma vs Shri Krishan
2014 Latest Caselaw 919 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.41/1987

%                                                    19th February, 2014

SHRI OM PARKASH SHARMA                                     ......Appellant
                  Through:               Ms. Shalini Kapoor, Advocate with
                                         Ms. Promil Seth, Ms. Kriti Arora,
                                         Advocates.


                          VERSUS

SHRI KRISHAN                                        ...... Respondent

                          Through:       Mr. S.K. Dubey, Advocate with Mr.
                                         Rajmangal Kumar, Advocate.

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


To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular Second Appeal has been filed against the

impugned judgment of the first appellate court dated 22.5.1987 by which the

first appellate court set aside the judgment of the trial court dated 1.10.1981.

Trial court by its judgment dated 1.10.1981 had decreed the suit for

possession of the appellant/plaintiff against the respondent/defendant with

respect to the suit property bearing no.25/59 (old no.25/50), Shakti Nagar,

Delhi admeasuring approximately 50 sq yds. Trial court held that the

appellant/plaintiff is the owner of the suit property inasmuch as he had

purchased the suit property by means of the sale deed Ex.PW1/1 dated

28.9.1978 executed by Mohd. Yusuf son of Aziza Begum. It is not in dispute

between the parties that Aziza Begum was the original owner of the

property. Trial court also disbelieved the case of adverse possession as set

up on behalf of respondent/defendant by holding that since the suit was filed

on 10.9.1979 the respondent/defendant had to show his hostile/adverse

possession before 10.9.1967, however, there was only testimony of

witnesses DW1, DW3 and DW7 to show that the defendant was in

possession of property whereas the electoral roll as well as the letters

exhibited as DW8/1, DW9/1 and DW10/1 did not show that the

respondent/defendant was in possession of the suit property on or before

10.9.1967.

2. The following substantial question of law was framed in this

case vide order dated 27.1.2014:-

"Whether the appellate court has committed a gross perversity and violation of the law of appreciation of evidence by holding that Mohd. Yusuf, from whom the appellant-plaintiff purchased the suit property, was not the son of Mst. Aziza Begum?"

3. Counsel for the appellant urged before me that the appellate

court has committed a clear cut perversity in unnecessarily ignoring the sale

deed in favour of the appellant/plaintiff and holding that Mohd. Yusuf who

sold the property to the appellant was not the son of Aziza Begum. It is

argued that the first appellate court has committed illegality/perversity in

holding that the document Ex.DC, which is only an electoral roll, as

conclusive proof of the fact that Mohd. Yusuf was not the son of Aziza

Begum merely because in the document Ex.DC, Mohd. Yusuf is shown as

son of Mohd. Yakub whereas Aziza Begum was the wife of Niaz Mohd as

per the Delhi Improvement Trust deed dated 26.8.1943 Ex.D1 inasmuch as

electoral rolls have sanctity for election and does not pertain to finality of

parentage.

4(i) On behalf of the respondent/defendant it was very strenuously

argued before this Court that Mohd. Yusuf who has purchased the suit

property by the sale deed Ex.PW1/1 is stated to be the son of Niaz Mohd and

resident of 2822, Mohalla Niaran, G.B. Road, Delhi whereas in the

agreement to sell Ex.PW1/3 Mohd. Yusuf son of Niaz Mohd shown to be

resident of 25/59, Shakti Nagar, Delhi and difference in addresses cast a

doubt on the identity of Mohd. Yusuf. It is further argued by placing

reliance upon Ex.DC that the address in this document of Mohd. Yusuf is

written as 2822, Gali Pipal Wali, Mohalla Niyarian, Delhi but that is not the

address of Mohd. Yusuf who entered into the agreement to sell, Ex.PW1/3,

and wherein the address is of the suit property. In sum and substance, it is

argued that Mohd. Yusuf who sold the property to the appellant/plaintiff was

a person who impersonated the real Mohd. Yusuf and the real Mohd. Yusuf

son of Aziza Begum never sold the suit property to the appellant/plaintiff. It

is also argued alongwith above stand, that Aziza Begum had no son called

Mohd Yusuf.

(ii) The second important argument which is urged on behalf of the

respondent/defendant is that whereas the suit for possession is with respect

to property bearing no.25/59, the respondent/defendant is occupying

property bearing no.25/50, and the appellant/plaintiff has behind the back of

the respondent/defendant got the number of the suit property changed to

No.25/59 in the municipal records and thereby it should be held that the

appellant/plaintiff is not the owner of the property bearing no. 25/50 which

is in possession of the respondent/defendant.

5. At the outset, I must mention that when a suit is filed on the

basis of title the initial onus of proof upon the plaintiff is only to show better

title than the person who is in possession and who does not claim ownership

of the suit property. Putting it differently, a person who only claims

ownership by adverse possession and not by purchase from the original

owner Aziza Begum, really being a trespasser should not be allowed to

illegally hold on to the suit property by pleading certain differences in

parentage and property numbers. I would also like to state that the very fact

that no person has come forward to claim ownership of the suit property as a

legal heir or son of Aziza Begum, there is no reason why this Court should

not accept Mohd Yusuf as the son of Aziza Begum inasmuch as the person

who has executed both the documents being the agreement to sell, Ex.PW1/3

and the sale deed Ex.PW1/1 is described as son of Niaz Mohd and Niaz

Mohd is the husband of the Aziza Begum as found in the deed executed by

the Delhi Improvement Trust, Ex.D1 and which document is filed and relied

upon by the respondent/defendant itself.

6. A conjoint reading of the documents being the agreement dated

26.8.1943/Ex.D1 by which Delhi Improvement Trust transferred ownership

of the suit property to Aziza Begum, agreement to sell Ex.PW1/3 dated

28.8.1957 showing Mohd Yusuf as the son of Niaz Mohd and the sale deed

Ex.PW1/1 dated 28.9.1978 again showing Mohd. Yusuf as son of Niaz

Mohd., in my opinion, are sufficient to hold that Mohd Yusuf who sold the

property to appellant/plaintiff was the son of Aziza Begum when the same is

taken with the fact that no one else has claimed to be the legal heir of Aziza

Begum for claiming ownership of the suit property and it is not as if the

respondent/defendant is claiming title to the property by purchase from

Aziza Begum or her legal heir(s). The first appellate court has therefore

committed a clear perversity in holding that the appellant/plaintiff failed to

prove that Mohd Yusuf who executed the agreement to sell Ex.PW1/3 and

the sale deed Ex.PW1/1 was not the Mohd. Yusuf who was the son of Aziza

Begum. The arguments which are urged on behalf of the

respondent/defendant are really arguments of desperation on small small

inconsequential issues of differences including in addresses of Mohd. Yusuf

being written as resident of 25/59 Shakti Nagar Delhi in the agreement to

sell Ex.PW1/3 and address of 2822, Mohalla Niaran, G.B. Road, Delhi in the

sale deed Ex.PW1/1. Difference of addresses may be for various reasons

however difference of addresses cannot invalidate documents of transfer of

title in a property once in the facts of the present case no one, much less a

person 'actually' called Mohd. Yusuf has come forward to claim that he is

the real Mohd Yusuf son of Aziza Begum and not the Mohd Yusuf who had

executed the agreement to sell Ex.PW1/3 and the sale deed Ex.PW1/1.

7. The argument urged on behalf of the respondent/defendant that

since in the sale deed Ex.PW1/1 the address of Mohd Yusuf is written as

2822, Mohalla Niaran, G.B. Road, Delhi and which is found also in Ex.DC

which is the electoral roll and since in Ex.DC Mohd. Yusuf is shown as son

of Mohd Yakub and not Niaz Mohd, this would show that Mohd Yusuf who

sold the property by the sale deed is a different Mohd Yusuf. This argument

however is without merit because no one pays too much attention to what is

mentioned in the electoral roll with respect to parentage inasmuch as

electoral roll is not meant for the purpose of deciding parentage but is only

for the purpose of exercising of a franchise by a person in elections. I

therefore reject the argument raised on behalf of the respondent/defendant

that Mohd. Yusuf who executed the sale deed was in fact the son of Mohd.

Yakub and not the son of Niaz Mohd.

8. Another argument which is urged on behalf of the

respondent/defendant is that Mohd Yusuf is not the son of Aziza Begum

because in the document Ex.D1 being the deed by which the Delhi

Improvement Trust transferred title of the suit property to Aziza Begum,

Aziza Begum's son is shown as one Muxte Nagar Allah and not Mohd.

Yusuf. Again this argument is without merit because the Delhi Improvement

Trust agreement in favour of Aziza Begum is of the year 1943, and surely

Mohd. Yusuf cannot only for that reason be held not to be the son of Aziza

Begum, inasmuch as, it is not written in the agreement Ex.D1 that Aziza

Begum had no other sons except Muxte Nagar Allah. At best Muxte Nagar

Allah would be one son of Aziza Begum, however that does not mean that

Aziza Begum would not have had either on the date of execution of the

agreement Ex.D1 in the year 1943 another son Mohd. Yusuf or that Mohd

Yusuf could well have been born subsequently. Accordingly, the argument

urged by the respondent/defendant in this regard that Mohd Yusuf should

not be held to be the son of Aziza Begum by virtue of the document Ex.D1

is therefore rejected.

9. The final argument which is urged on behalf of the

respondent/defendant is that the suit property had a number 25/50 and this

number has been changed behind the back of the respondent/defendant to

25/59 and therefore the suit property is 25/50 for which decree cannot be

granted to the appellant-plaintiff. Once again, this argument of the

respondent/defendant has no basis because it is after all a number given by

local municipal authority and that also on the basis of a lay out plan which

has changed the number of the property to 25/59 and really the suit for

possession was for property no.25/50 and which has become property

No.25/59, hence there is a valid decree qua property no. 25/59. There is no

requirement of any substantive law or procedural law that a municipal

authority, before changing a number of a property, is bound to issue a show

cause notice to the occupant of the property. In any case the argument is

really no argument because there is one property and it is for that property

that the disputes are there, and which is occupied by respondent, and which

has to be handed over to the appellant/plaintiff. This argument urged on

behalf of the respondent is also therefore rejected.

10. Therefore, on the one hand the appellant/plaintiff has proved

that Aziza Begum was the owner of the suit property; Aziza Begum was the

wife of Niaz Mohd; Mohd Yusuf who sold the property to the

appellant/plaintiff is described as son of Niaz Mohd; no one except Mohd.

Yusuf who sold the suit property to the appellant/plaintiff has come forward

to claim that he is Mohd. Yusuf son of Aziza Begum and not the Mohd.

Yakub who executed the documents being the agreement to sell Ex.PW1/3

and sale deed Ex.PW1/1; these aspects in my opinion are sufficient to

discharge the onus of proof upon the appellant/plaintiff to show that he is the

owner of the suit property, and more so in a case where the

respondent/defendant is a trespasser in the suit property and one who does

not claim ownership of the same by any title document.

11. In view of the above, substantial question of law framed is

answered in favour of the appellant/plaintiff by holding that the first

appellate court has committed a perversity in holding that the Mohd. Yusuf

who sold the suit property to the appellant/plaintiff was not Mohd. Yusuf

son of Aziza Begum. Also, it is held that the appellant/plaintiff validly

purchased the suit property from Mohd. Yusuf and was the son of Aziza

Begum by means of the documents being the sale deed Ex.PW1/1 and the

earlier agreement to sell Ex.PW1/3. The judgment of the first appellate

court dated 22.5.1987 is set aside. Accordingly, the judgment of the trial

Court dated 1.10.1981 will stand revived and the appellant/plaintiff is held

entitled to possession of the suit property bearing no.25/59, original

no.25/50, Shakti Nagar, Delhi and which is shown in red in the site plan

Ex.PW1/2. In view of the fact that the trespasser is unnecessarily holding on

to a suit property, I also award the appellant/plaintiff costs of Rs.50,000/-

and which costs shall be paid within a period of four weeks from today.

FEBRUARY 19, 2014                           VALMIKI J. MEHTA, J.
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