Shyam Mishra vs Madhu & Ors.
2014 Latest Caselaw 43 Del

         *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 3rd January, 2014

+                              RFA No.135/2013

      SHYAM MISHRA                                         ..... Appellant
                 Through:             Mr. Suresh Sharma, Adv.

                                    Versus

      MADHU & ORS.                                        ..... Respondents

                         Through:     Mr. S.C. Singhal, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The appeal impugns the judgment and decree (dated 4th February,

2013 of the Court of the Addl. District Judge-IV, South District, Dwarka

Courts, New Delhi in Suit No.470/2012 (UID No.02405C0412702009) filed

by the respondent no.1 against the appellant and the respondents no.2 to 4

herein) of declaration, declaring the documents in respect of suit property

being plot No.12-B ad measuring 125 sq.yds. (38x29.6) out of Khasra

No.6/1 situated in Village Nangli Sakaravati Delhi abadi, now known as

Prem Vihar, Najafgarh, New Delhi in favour of the respondent No.1 /

plaintiff as valid and the documents with respect to the same property in

favour of the appellant / defendant as bogus and directing cancellation

thereof and of mandatory injunction directing the appellant to demolish the

construction existing at the suit property and failing which the respondent

No.1/plaintiff has been permitted to demolish the same and of recovery of

possession of the said property and of mesne profits from the

appellant/defendant.

2. The appeal came up first before this Court on 12 th March, 2013 when

the respondent-1/plaintiff being on caveat appeared. Notice of the appeal

was issued and subject to the appellant/defendant depositing the decretal

amount in this Court, execution of the decree was stayed. In compliance

with the said direction a sum of Rs.46,000/- has been deposited in this Court.

The appeal was on 8th July, 2013, admitted and posted for hearing and the

earlier interim order was made absolute. The counsel for the

appellant/defendant and the counsel for the respondent-1/plaintiff have been

heard and the Trial Court record has been perused. Though notice of the

appeal was not issued to the respondents no.2 to 4 / defendants but the

respondent no.3/defendant was ex parte before the trial Court and the

respondent no.2/defendant though had appeared did not file any written

statement and the respondent no.4 /defendant though had filed the written

statement but has otherwise no claim to the property. Thus to complete the

record, it is formally recorded that their service is dispensed with.

3. The respondent no.1/plaintiff instituted the suit from which this appeal

arises, pleading:-

(a) that the respondent no.4 /defendant Shri Hari Ram was the

owner of the plot No.12 admeasuring 250 sq. yds.;

(b) that the respondent no.4 Shri Hari Ram divided the said plot

into two portions and gave them numbers 12-A and 12-B;

(c) that the respondent no.4 Shri Hari Ram vide Agreements to

Sell coupled with delivery of possession and Power of Attorney

and Will etc. and after receiving the entire sale consideration

sold the plot No.12-A measuring 103 sq. yds. to one Smt.

Chhavi Garg and plot No.12-B measuring 150 sq. yds. to one

Smt. Anju Sharma @ Anju Rani;

(d) that Smt. Anju Rani in the same manner and with the consent of

the respondent no.4 sold the plot No.12-B to one Shri Balihari;

(e) that Shri Balihari sold/transferred 125 sq. yds. out of plot

No.12-B (ad measuring total 150 sq. yds) to the respondent-1/

plaintiff vide Agreement to Sell, General Power of Attorney

dated 8th May, 2000 and also delivered all the original

documents to the respondent-1/plaintiff;

(f) that the respondent-1/plaintiff raised the boundary wall to

protect the plot and demarcated the same and was in possession

thereof;

(g) that when the respondent-1/plaintiff visited the said plot on 14th

October, 2009, she found that somebody had unauthorizedly

constructed two rooms and had also obtained the electricity

connection therein;

(h) that the respondent-1/plaintiff reported the matter to the Police

and the Police apprehended one Shri Pradeep who disclosed

that the appellant/defendant had raised construction;

(i) that the Police did not take any action and in fact the

appellant/defendant filed a suit for injunction before the Civil

Judge against the respondent-1/plaintiff and her husband, to

restrain them from forcibly dispossessing him from the said

property; and,

(j) that the appellant/defendant had forged documents of transfer

of the said plot by the respondent no.2 /defendant Shri Rahul

Sharma in his favour; it was further claimed that the

respondent no.2 /defendant had acquired the said plot from the

respondent no.3 /defendant Shri Kishan Lal and who in turn had

acquired the same from the respondent no.4 /defendant Shri

Hari Ram.

accordingly, the suit for declaration, cancellation, recovery of

possession, mandatory injunction, mesne profits etc. was filed.

4. The appellant/defendant contested the suit by filing a written

statement claiming the documents with respect to the property in his favour

to be genuine and the documents in favour of the respondent-1/plaintiff to be

bogus and claiming to be in lawful possession of the property under the

documents in his favour.

5. Needless the state that the respondent-1/plaintiff filed a replication

controverting the contents of the written statement of the

appellant/defendant.

6. The respondent no.4 Shri Hari Ram who as per the documents of title,

claimed both by the appellant/defendant and the respondent-1/plaintiff, was

the original owner of the property, also filed a written statement confirming

the sale in favour of Smt. Chhavi Garg and Smt. Anju Rani and denying any

transfer in favour of the respondent no.3/defendant Shri Kishan Lal through

whom the appellant/defendant was claiming.

7. On the pleadings aforesaid of the parties, the following issues were

framed in the suit on 22nd March, 2010:-

"(i) Whether the plaintiff is entitled to a declaration that documents mentioned in Relief No.1 are without any authority of law? OPP

(ii) Whether the plaintiff is entitled to a declaration that documents mentioned in Relief No.2 are validly executed documents? OPP

(iii) Whether the plaintiff is entitled to a decree of possession of suit property, as shown in red colour in attached site plain? OPP

(iv) Whether the plaintiff is entitled to mandatory injunction directing defendant no.1 to remove construction from the suit property? OPP

(v) Whether the plaintiff is entitled to receive Rs.10,000/- on account of damages and mesne profits from 14.08.2009 to date of filing of suit? OPP

(vi) Whether the plaintiff is entitled to mesne profits, if yes, at what rate? OPP

(vii) Relief."

8. The learned Addl. District Judge, in the impugned judgment has

found/observed/held:-

(i) that the documents in favour of the respondent-1/plaintiff were

registered while the documents in favour of the

appellant/defendant were unregistered;

(ii) that the documents of transfer of the plot by Smt. Anju Rani in

favour of Shri Balihari were also witnessed by the

respondent no.4 /defendant Shri Hari Ram;

(iii) that the respondent no.4 /defendant had admitted the documents

in favour of the respondent-1/plaintiff and denied the

documents purportedly executed by him in favour of the

respondent no.3 /defendant Shri Kishan Lal.

(iv) that though the receipt of money purportedly executed by the

respondent no.3 /defendant Shri Kishan Lal in favour of the

respondent no.2 /defendant Shri Rahul Sharma was purportedly

registered but when the records of the Sub Registrar were

summoned, the said document was not found and some other

document was found to be registered against the particulars of

registration which the said receipt bore;

(v) that though the appellant/defendant had examined the

respondent no.2 /defendant Shri Rahul Sharma from whom the

appellant/defendant claimed to have acquired the property and

the respondent no.2 /defendant claimed to be owner of the

property but did not specify the basis of his ownership and did

not prove any document;

(vi) that thus the chain of documents on the basis of which the

appellant/defendant claimed rights in respect of the property

was suspicious and could not be said to be passing any title in

the suit property to the appellant/defendant;

(vii) that though the documents executed by the

respondent no.2 /defendant in favour of the appellant/defendant

mention the sale consideration as Rs.80,000/-, the

appellant/defendant in his deposition disclosed the sale

consideration to be Rs.1 lac;

(viii) that the respondent no.3/defendant Shri Kishan Lal was

reported to have died in the year 1995; the appellant/defendant

though examined the son of the said Shri Kishan Lal but did not

put any documents (allegedly executed by his father in favour

of respondent no.2/defendant) to the said witness and the said

witness also did not say that he was acquainted with the

signatures of his father Shri Kishan Lal;

(ix) that the son of the respondent no.3 /defendant Shri Kishan Lal

examined by the appellant/defendant was not at all

creditworthy;

(x) that the appellant/defendant did not cross examine the

respondent-1/plaintiff with regard to the authenticity of her

documents;

(xi) thus issues No.1,2&3 were decided in favour of the

respondent-1/plaintiff and against the appellant/defendant;

(xii) that the respondent-1/plaintiff had acted with promptitude in

reporting the matter to the Police and in filing the suit as soon

as she became aware of the adverse title being claimed by the

appellant/defendant;

(xiii) that the respondent-1/plaintiff had thus proved that she was in

possession of the property and had been illegally disposed

therefrom; accordingly issue No.3 decided in favour of the

respondent-1/plaintiff and against the appellant/defendant; and,

(xiv) axiomatically, issues No.4 to 6 were also decided in favour of

the respondent-1/plaintiff and on the basis of the admission of

the appellant/defendant that the property was capable of

fetching rent of Rs.600/- to Rs.700/- per month, the rate of

mesne profits was fixed at Rs.700/- per month.

accordingly, the suit of the respondent-1/plaintiff was decreed as

prayed.

9. The counsel for the appellant/defendant has argued:-

A. that none of the witnesses and the respondent-1/plaintiff has

proved the execution of documents in favour of the respondent-

1/plaintiff;

B. that the registration of the documents does not prove execution

thereof or delivery of possession in pursuance thereto;

C. that the respondent no.4 /defendant Shri Hari Ram though filed

a written statement and did admission/denial of documents,

chose not to appear as a witness;

D. that the appellant/defendant is now not relying on the receipt of

money executed by respondent no.3/defendant Sh. Kishan Lal

in favour of respondent no.1/defendant Sh. Rahul Sharma being

registered;

E. that the respondent-1/plaintiff also did not choose to produce

the respondent no.4/defendant Shri Hari Ram as her witness;

F. that it was for the respondent-1/plaintiff to prove her case and

which the respondent-1/plaintiff has failed to do; reliance is

placed on M/s. Sudir Engineering Company Vs. M/s. Nitco

Roadways Ltd. 1995 II AD (Delhi) 189 to contend that

admission of document into evidence does not amount to its

proof; and,

G. that the respondent-1/plaintiff had not produced any witness to

prove delivery of possession of the property to the

respondent- 1/plaintiff in pursuance to the Agreement to Sell in

favour of the respondent-1/plaintiff.

10. The counsel for the respondent-1/plaintiff has supported the judgment.

11. As far as the argument raised by the counsel for the

appellant/defendant, of the respondent-1/plaintiff having not proved the

delivery of possession of the property to her by Shri Balihari, the same in the

context of the pleadings has no relevance. It was not the case of the

appellant/defendant that he was in possession of the property since prior to

the execution of the documents of sale by Shri Balihari in favour of the

respondent-1/plaintiff. The suit, as aforesaid, was for declaration of

title/rights with respect to the property and which rights/title, both the

respondent-1/plaintiff and the appellant/defendant were claiming on the

basis of documents in their favour and not independently thereof. Once it is

found that the documents in favour of the appellant/defendant are bogus and

reasoning of the learned Addl. District Judge for arriving at which finding is

not challenged, it has but to be held that the transaction as depicted in the

documents in favour of the respondent-1/plaintiff took place and in that view

of the matter it was not necessary for the respondent-1/plaintiff to,

independently of the documents, prove delivery of possession of the

property in favour of herself.

12. As far as the non-examination by the respondent-1/plaintiff of the

respondent no.4/defendant Shri Hari Ram is concerned, the respondent

no.4/defendant Shri Hari Ram in his written statement had supported the

documents executed by him in favour of Smt. Anju Rani through whom the

respondent-1/plaintiff claimed and had denied sale/transfer in favour of the

respondent no.3/defendant Shri Kishan Lal through whom the

appellant/defendant claimed. The appellant/defendant did not seek any

opportunity to file pleading in response to the said written statement of the

respondent no.4 /defendantShri Hari Ram and which was prejudicial to the

appellant/defendant, as the appellant/defendant could in law have done. The

respondent no.4 /defendant having in his written statement so admitted the

claim of the respondent-1/plaintiff, no adverse inference can be drawn

against the respondent-1/plaintiff for not examining the said respondent

no.4/defendant Shri Hari Ram; since it was the appellant/defendant who

was prejudiced by the said admission of the respondent no.4 /defendant Shri

Hari Ram, it was for the appellant/defendant to claim an opportunity for

cross examination of the respondent no.4 /defendant Shri Hari Ram and

which again was not done.

13. As far as the argument of the counsel for the appellant/defendant of

the respondent-1/plaintiff having not proved the documents under which she

claims rights to the property is concerned, the said documents were proved

by the respondent-1/plaintiff in her own affidavit by way of examination-in-

chief; along with the said affidavit, the documents referred therein were

tendered into evidence and a perusal of the Trial Court record does not show

the appellant/defendant having taken any objection to the admission into

evidence of the said documents. The respondent-1/plaintiff also examined

Shri Balihari aforesaid as her witness on 18th December, 2010 who in his

examination-in-chief deposed having delivered possession of the property to

the respondent-1/plaintiff and also proved the documents of transfer in

favour of the respondent-1/plaintiff as well as the documents of transfer

executed by Smt. Anju Rani in his favour. It was the counsel for the

appellant/defendant who did not cross examine Shri Balihari on that date and

sought an adjournment for the said purpose. The suit thereafter was

adjourned to 20th January, 2011 for cross examination of Shri Balihari and

on which date he did not appear and on the next date i.e. 29th January, 2011

it was stated that Shri Balihari had died. In this view of the matter also, it

cannot be said that the respondent no.1/plaintiff has not proved the

documents of title in her favour. Moreover it is not as if anybody other than

the respondent-1/plaintiff is claiming title to the land through Shri Balihari.

14. I have even otherwise perused the evidence and find the learned Addl.

District Judge to have on a correct appreciation of the same reached the

conclusions supra. Need is thus not felt for me to reiterate the reasons which

prevailed with the learned Addl. District Judge and as culled out

hereinabove.

15. I am also of the view that the attempt by the appellant/defendant to

portray a document i.e. the receipt of money aforesaid, which though was

not registered, as registered and offering no explanation therefor when the

said falsehood projected by the appellant/defendant no.1 was caught, is

enough to even disentitle the appellant/defendant from contesting the suit

and this appeal.

16. No merit is thus found in the appeal which is dismissed with costs.

Counsel's fee assessed at Rs.20,000/-.

17. Decree sheet be drawn up.

18. The monies deposited in this Court be forthwith released to the

respondent-1/plaintiff.

RAJIV SAHAI ENDLAW, J JANUARY 03, 2014 pp