Delhi High Court

Brij Pal vs Sant Ram on 1 February, 2016

*                   HIGH COURT OF DELHI AT NEW DELHI

+                      C.R.P. No.10/2011 & C.M. No.1239/2011
                                            Decided on: 1st February 2016

BRIJ PAL                                               ..... Petitioner
                              Through:     Mr. Ajit Sharma & Mr.Mayank
                                           Aggawal, Advocates.
                              versus
SANT RAM                                               ..... Respondent
                              Through:     Mr. B.P. Dhalla, Advocate.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (Oral)

1. This is a revision petition filed by the petitioner/defendant

against the judgment and decree dated 30.11.2010 by virtue of which

the suit for possession of the respondent/plaintiff has been decreed by

the learned Senior Civil Judge-cum-RC (East), Karkardooma Courts,

Delhi under Section 6 of the Specific Relief Act.

2. Briefly stated the facts of the case are that the

respondent/plaintiff filed a suit for possession under Section 6 of the

Specific Relief Act against the petitioner/defendant in respect of one

room of property No.29/11, Main Road, Babarpur, Shahdara, Delhi-

32, more particularly shown as red in the site plan Ex.PW-1/1. The

case which was set up by the respondent/plaintiff was that he was the

owner and landlord of the property No.29/11, Main Road, Babarpur,

Shahdara, Delhi-110032 having purchased the same from one Jai

Singh son of Sh. Birmanand vide documents, namely, General Power

of Attorney (Ex. PW-1/2), agreement to sell (Ex. PW-1/3), receipt

(Ex. PW-1/4), Will (Ex. PW-1/5), Affidavit (Ex. PW-1/6) and

possession letter (Ex. PW-1/7) on 03.02.1999. It was stated since the

said date the respondent/plaintiff along with his family members was

residing in one room of the aforesaid property. So far as the

petitioner/defendant is concerned it was stated that he has no right,

title or interest in the suit property but was extending threats to

dispossess the respondent/plaintiff. It was alleged that the

petitioner/defendant being the uncle of the respondent/plaintiff got a

case under Section 107/151 Cr.P.C. registered at Police Station

Welcome, Seelampur, Shahdara, Delhi. He was arrested on

18.10.2000 and because of the aforesaid incarceration of the

respondent/plaintiff, the petitioner/defendant took the advantage and

conspired with the local police to forcibly take the possession of the

suit property. The respondent/plaintiff on being bailed out on

20.10.2000 found the suit property lock having been broken and the

possession having been taken by the petitioner/defendant. The

respondent/plaintiff went to the Police Station for the purpose of

lodging a report which was not registered by them because of which

he was constrained to file the suit for possession.

3. The petitioner/defendant contested the suit and filed his written

statement on 16.05.2005. It was stated that the petitioner/defendant

was an employee of one Parkash Chand son of Shri Brahma resident

of 29/10-11, Babarpur, Maujpur, Shahdara, Delhi and Parkash Chand

along with his two brothers, namely, Malkhan Singh and Sukhbir

Singh had purchased the suit property from Brahma, father of Parkash

Chand vide Sale Deed dated 26.05.1999 and it was already mutated in

their names. It was also stated that so far as the respondent/plaintiff is

concerned, he has no concern with the suit property and it was

actually Parkash Chand, who was the co-owner along with two

brothers in respect of the entire property including one room which

was claimed by the respondent/plaintiff. It was also stated that a

criminal case under Section 380/448 IPC was registered against the

respondent/plaintiff and his other family members vide FIR

No.281/2000 by PS Welcome on the intervening night of

10/11.10.2000. It was also stated that the respondent/plaintiff does not

have any right, title or interest in the suit property and therefore, the

suit is liable to be rejected. As regards the documents on the basis of

which the respondent/plaintiff was claiming the ownership it was

stated that these were false and fabricated documents and the suit

property was actually not owned by Jai Singh but by one Brahma who

had sold it to three persons, namely, Parkash Chand, Malkhan Singh

and Sukhbir Singh vide Sale Deed. It was also stated that a false case

under Section 107/151 Cr.P.C. was registered against Parkash Chand

and his son Mool Chand and Charan Singh.

4. It was also stated by the petitioner/defendant that the

registration of the FIR was much prior to the initiation of the suit by

the respondent/plaintiff and it was alleged that the land covered by

one room is measuring around 13 sq. yds and it costs come to

Rs.3,50,000/-, cost of construction is Rs.55,000/- and thus the total

value of the suit property is Rs.4,05,000/- and since the suit has not

been property valued, the plaint is liable to be rejected.

5. In replication, the respondent/plaintiff denied the averments

and on the pleadings of the parties, following issues were farmed:-

"1. Whether the plaintiff is the owner of the suit property? OPP (Deleted on 8/09/2009).

2. Whether the plaintiff was in possession of the suit property till 18/10/2000 and was

wrongful dispossession as alleged b/w 18/10/2000 to 20/10/2000 by the defendant? OPP

3. Whether the employers of the defendant are the owners of the suit property as alleged? OPD (Deleted on 8/09/2009).

4. Whether the plaintiff is entitled to the relief of possession as claimed? OPD

5. Relief?

On 07/10/2004, following issues were added:-

1. Whether the suit is bad for non-joinder of necessary party? OPD.

2. Whether the suit does not disclose any cause of action and is liable to be rejected? OPD.

3. Whether the suit has not valued properly for the purpose of court fee and jurisdiction? OPD."

6. The respondent/plaintiff himself appeared in the witness box as

PW-1, Sant Ram and filed his affidavit Ex.P-1. PW-2, Jai Singh filed

his examination-in chief through affidavit Ex.PW-2/1, PW-3, Ashok

Kumar, Ahlmad in the Court of Shri Suresh Kumar Gupta, the

learned Metropolitan Magistrate, PS Welcome deposed in the Court

that Sant Ram respondent/plaintiff son of Deep Chand was arrested

on 18.10.2000 and the arrest memo was exhibited as PW-3/1. The

respondent/plaintiff closed his evidence on 23.01.2008.

7. The petitioner/defendant examined himself as DW-1, Brij Pal

and filed his examination-in-chief Ex.DW-1/A. DW-2, Ashok Kumar,

Ahlmad from the Court of Shri Suresh Kumar Gupta, learned MM to

prove the record of FIR registered under Section 448/380/392 IPC.

The charge sheet was proved as Ex.PW-1/D2. One S.S. Rawat,

Ahlmad of the Court of Shri Ankur Jain, MM was examined as DW-

3, who proved certified copy of the complaint under Section

448/380/219/218 of PS Welcome as Ex.DW-1/4. DW-4 is Mr. P.C.

Tiwari, LDC, Sub-Registrar-IV, Nand Nagri to prove the copy of the

Sale Deed purported to have been executed by Sh. Brahma in favour

of Malkhan Singh and two others as Ex.DW-4/2. The earlier certified

copy of the Sale Deed was exhibited as Ex.DW-1/4. Mr. Naveen

Kumar Gandas, record keeper from the Department of Delhi Archives

was examined as DW-5. DW-5/A was the Sale Deed executed by one

Chajju Singh in favour of Brahma to connect the documents and the

ownership in faovur of Brahma. DW-6, Subhash Chand was also

examined. DW-1, Om Pal Singh No.1882 NE, PS Welcome, Delhi

was wrongly numbered as DW-1. Finally, on 24.11.2010 the

petitioner/defendant closed his evidence.

8. The learned trial court decreed the suit holding that the

respondent/plaintiff was in possession of the suit property on

18.10.2000 and he was dispossessed by the petitioner/defendant and

therefore, decreed the suit for possession. So far as other issues with

regard to non-joinder of Prakash Chand as necessary party and

valuation of the suit property, payment of court fees and jurisdiction

are concerned, they were also decided in favour of the

respondent/plaintiff. However, before this court, the learned counsel

for the respondent has primarily challenged the decree of possession

having been passed against him.

9. It has been contended by the learned counsel for the

petitioner/defendant that the learned trial court has grossly erred

inasmuch as the respondent/plaintiff had claimed himself to be the

owner of the property after having purchased the same on 26.5.1999

from PW-2, Jai Singh; however connected documents on the basis of

which Jai Singh had become the owner of the suit property were

neither produced nor proved by the said witness PW-2, Jai Singh and

therefore, in absence of connecting documents, the ownership of the

respondent/plaintiff was not established. It was further contended by

the learned counsel for the petitioner/defendant that the onus to prove

that the petitioner/defendant was in possession of the suit property

was erroneously placed on him when the respondent/plaintiff had in

the first instance to discharge the onus of proving that he was in

possession of the suit property and that he was dispossessed. The

learned counsel for the petitioner/defendant has also placed reliance

on the judgments with regard to the onus being on the

respondent/plaintiff in cases titled Rangammal vs. Kuppuswani &

Anr.; (2011) 12 SCC 220, T.K. Mohammed Abubucker (D) Thr. LRs

& Ors. vs. P.S.M. Ahamed Abdul Khader & Ors.; AIR 2009 SC 2966.

10. I have gone through both these judgments. So far as the

judgment of Rangammal (supra) is concerned, it only enunciates the

principle regarding Section 101 Evidence Act which lays down that

ones who asserts must prove. There is absolutely no doubt that the

initial onus of proving that the respondent/plaintiff was in possession

of the suit property was on him which has been discharged by the said

respondent/plaintiff in ample measure. With regard to the case of

T.K. Mohammed (supra), while discussing the same Section in the

light of the suit for declaration, title and possession it has been

observed by the Supreme Court that the burden of proving the title

and the entitlement of possession is on the party who asserts and he

cannot succeed on the alleged weaknesses in the title or possession of

the defendant.

11. There can be no quarrel with regard to the proposition laid

down in both these judgments. In order to see as to whether the

respondent/plaintiff has discharged this onus of proving that he was in

possession on 18.10.2000, any one will have to glance through the

evidence and after going through the evidence, I am fully satisfied

that the only irresistible conclusion which could be arrived is the one

which has been recorded by the trial court; however, before dealing

with the said reasoning, it may be pertinent here to mention that both

the learned trial court as well as the petitioner/defendant are

confusing the issue of possession with the title in a suit under Section

6 of the Specific Relief Act. All that the plaintiff has to prove that he

was in possession of a suit property within a period of six months

prior to the date of filing of the suit and that he was dispossessed.

The title of the property need not be established by the person at all

by the person who was in possession and is seeking retrieval of the

same.

12. Coming back to the facts of the present case, the plaintiff has

categorically stated that he had purchased the property from PW-2 Jai

Singh and that he was living in the suit property along with his family

and uncle. He was subjected to cross-examination. He also stated

that on 18.10.2000, a case under Section 107/151 Cr.P.C. was got

registered and he was incarcerated and when he got released on bail

on 20.10.2000 he found that the petitioner/defendant had broken the

lock of the suit property and dispossessed him. His testimony has

remained unchallenged. As against this, the testimony which has

been produced by the petitioner/defendant is that Brij Pal Singh was

living in the suit property for the last more than ten years. Brij Pal

Singh is not claiming himself to be the owner of the suit property on

the contrary, he states that he is an employee of one Prakash Chand

whose father Brahma had allegedly purchased the property from

Chhajju Singh and Prakash Chand along with his two brothers,

namely, Malkhan Singh and Sukhbir Singh had purchased the

property from Brahma as early as on 26.5.1999. It has been further

stated by Brij Pal Singh that so far as he is concerned, he was living at

the suit property but he has not been able to produce any document

like ration care or election card, etc. to show that he was living at the

suit property. On the contrary, it has been admitted by him in his

cross-examination that he is living along with his school going

children at a place other than the suit property and he has all his

documents made at that particular address. If that be so then it is very

unlikely that he was residing at the suit property and this clearly

belies the stand of the petitioner/defendant. In addition to this, it has

also come on record that Prakash Chand is living in an adjoining

property bearing No.29/10, Badarpur Road while as the suit property

is 29/11. It is very likely that as Prakash Chand, who has set up a

case as the co-owner of the suit property was living in the adjoining

property and he wanted to grab the property of the

respondent/plaintiff. It may be pertinent here to reproduce the cross-

examination of DW-1, Brij Lal which will clearly show that he was

not worth credence and he is only a witness who has been setup :-

"I have not filed any document to show that I am the employee of Prakash Chand. I do not have any documentary proof to show that I am residing in the suit property. I do not have any ration card or election identify card to show my possession and residence in the suit property. Vol. The said document were stolen by the plaintiff.

It is wrong to suggest that I did not have any such document bearing the address of the suit property. It is correct that my parents are staying in H. No.1025, Harsh

Vihar, Delhi. It is correct that I possess a ration card and election identity card bearing the above address. It is correct that ration card bears the name of my wife and four children also. It is correct that my elder son is 22 years old and my second child is a daughter aged about 20 years presently. My third child and fourth children both, are aged 19 and 14 years respectively. It is correct that the names of my wife, children and myself are currently mentioned in the ration card bearing the address 1025, Harsh Vihar, Delhi. It is correct that election cards of all my family members named above including myself currently bears the above address. All my children except the eldest are currently studying. It is correct that the address of these children in the school record is also the same as mentioned above. My eldest son name Monu works at Shani Chowk, Lajpat Nagar, Ghaziabad as an ice cream vender. His shop bears the name "Jain". It is correct that Monu has mentioned his residential address as 1025, Harsh Vihar, Delhi at the said shop."

13. Further, the falsity of the petitioner/defendant would be

reflected from the fact that the petitioner/defendant states that on

10.10.2000 in the absence of the defendant and his family member,

the respondent/plaintiff committed the offence of house breaking and

theft for which and FIR was registered on 18.10.2000. If theft was

committed on 10.10.2000, there was absolutely no justification and

plausible reason given by him as to why he waited for almost eight

days for lodging a report for registration of an FIR. In addition to

this, it was the case that in the absence of the defendant and his

family, who were claiming to be living in the suit room, one Asif was

sleeping in the said room, who was beaten and manhandled by the

respondent/plaintiff. But no reason has been given as to why this

gentleman Asif has not been produced as a witness. Section 114 sub-

clause (g) of the Evidence Act lays down that if there is a witness,

who is within the control of a party whose testimony is relied upon

and is not produced then, the only presumption which the court may

draw is that if produced he would have testified against such a party.

Section 114 (g) of the Evidence Act reads as under :-

"114. Court may presume existence of certain facts. -- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume--