Smt. Shanti Devi & Ors. vs Raj Kumar
2016 Latest Caselaw 108 Del

*                HIGH COURT OF DELHI AT NEW DELHI

+                  C.R.P. 65/2014 & CM APPL.8688/2014

                                        Pronounced on: 7th January, 2016

SMT. SHANTI DEVI & ORS.                ...... Petitioners
              Through: Mr. Sanjay Goswami, Advocate.

                       Versus

RAJ KUMAR                                            ...... Respondent
                     Through:     Nemo.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI


V.K. SHALI, J.

1. This is a revision petition filed by the petitioners against the

judgment and decree dated 23.04.2014 passed in CS No.149/2013,

titled Sh. Raj Kumar v. Smt. Shanti Devi & Ors.

2. Briefly stated the facts leading to filing of the present revision

petition are that the respondent/plaintiff Raj Kumar filed a suit for

possession under Section 6 of the Specific Relief Act. It was

alleged by the respondent/plaintiff that he was a tenant under

petitioner No.1 in respect of one room, measuring 13 x 20 ft., more

particularly shown red in the site plan, situated in property No.50,

Jangpura Road, Bhogal, New Delhi on a monthly rent of Rs.55/-

since 1958. The tenanted premises was fully furnished with tyres

and tubes of car/motorcycle, utensils for preparing chhole bhature

worth Rs.1,05,000/- approximately. It is alleged that the present

petitioners/defendants intended to evict the respondent/plaintiff by

hook or crook and ultimately on the night of 19.11.2011, petitioner

No.2 and 3 broke open the locks of the suit premises and removed

all the articles lying therein and committed house trespass. They

took unlawful possession of the suit premises and put their own

locks in his absence. The respondent/plaintiff was constrained to

inform the PCR on 20.11.2011 when he visited the premises in

routine manner and lodged a complaint. The police did not take

any action as a consequence of which a written complaint with the

police was lodged on 25.11.2011.

3. The respondent/plaintiff simultaneously filed the present suit for

possession under Section 6 of the Specific Relief Act against the

petitioners/defendants.

4. So far as petitioner No.1 and 2 are concerned, they took the stand

that the respondent/plaintiff has no right, title or claim to the suit

property and it has been filed without any cause of action. It was

stated that petitioner No.3/defendant No.3 is in occupation of the

shop in question since 14.10.2011 when Smt. Gomti Devi wife of

Om Prakash, i.e. original tenant and the mother of the

respondent/plaintiff had after the demise of Om Prakash willingly

surrendered her tenancy rights and possession in favour of the

petitioners/defendants for lawful consideration. It has been stated

that the present petitioners/defendants are in lawful possession of

the suit property. So far as the death of Om Prakash, father of the

respondent/plaintiff, who was the original tenant is concerned, that

is not in dispute. It is also not disputed that Smt. Gomti Devi was

the wife of Om Prakash. Further, it has been stated that Smt. Gomti

Devi has already surrendered the tenancy rights in favour of the

petitioners/defendants. It has been denied that Smt. Gomti Devi

was a joint tenant along with respondent/plaintiff in respect of the

suit property. The documents on which reliance was placed by the

respondent/plaintiff to show his tenancy rights were alleged to be

forged and fabricated. On the contrary, the petitioners/defendants

have placed reliance on documents with regard to surrender of the

tenancy right and possession by Smt. Gomti Devi. So far as

petitioner No.3 is concerned, he supported the plea of petitioner

No.1 and 2. He only claimed himself to be the attorney of

petitioner No.2 in respect of the suit property.

5. The learned trial Court after framing of issues, namely:-

"(i) whether the plaintiff is entitled to a decree of restoration of possession as prayed for?

(ii) Relief."

6. The trial Court decided the aforesaid issues in favour of the

respondent/plaintiff. Another additional issue with the regard to the

payment of court fees was also framed.

7. After the completion of the pleadings, the parties adduced their

evidence in support of their case. Respondent/plaintiff examined

himself as PW-1 and tendered his Affidavit as Ex.PW-1/1, relied

on documents Ex.PW-1/2 site plan, photographs Ex.PW-1/3

(colly), copy of DD No.16, entry No.716, dated 20.11.2011

Ex.PW-1/4, complaints to the SHO Ex.PW-1/5 (colly) and the

advance rent paid by him to the petitioners/defendants No.1 and 2

Ex.PW-1/6. As against this, the petitioners/defendants in support of

their case examined Smt. Shanti Devi, petitioner No.1 as DW-1,

she tendered her Affidavit Ex.DW-1/A, Naresh Kumar, petitioner

No.3 as DW-2, who tendered his Affidavit Ex.DW-2/A and the

most crucial witness DW-3 Smt. Gomti Devi, the mother of the

respondent/plaintiff, who was examined on Local Commission and

proved her Affidavit Ex.DW-3/1 and the documents, namely,

receipt-cum-possession letter dated 11.10.2011 Ex.DW3/2,

Surrender Deed dated 11.10.2011 Ex.DW3/3 and letter to Chowki

Incharge intimating about the surrender on 14.10.2011.

8. The learned trial Court after analysis of the evidence recorded a

finding that the respondent/plaintiff was in possession of the suit

property prior to filing of the suit and he was illegally or

unlawfully dispossessed by the petitioners/defendants and therefore

passed a decree of possession in his favour.

9. I have heard the learned counsel of the petitioner and have also

gone through the record.

10. The learned counsel for the petitioner has contended that the

document of receipt which indicates that the rent has been paid in

advance by the respondent/plaintiff is actually a forged document

and while the respondent/plaintiff testified as PW-1 a suggestion

was given to him in this regard that the document in question is

forged, which was denied by him. But no effort was made by the

petitioners/defendants to either get an expert examined or produce

any evidence to show that the document which was alleged by

them to be a forged document does not seem to be a document

purported to have been signed by defendant No.1 and 2 in token of

having received the rent in respect of the suit property. Therefore,

the testimony of PW-1 remains almost un-demolished.

11. It is well settled that the onus of proving the document to be a

forged, fabricated or drawn of misrepresentation is on the party

who asserts to that effect. In this regard, the petitioners/defendants

have failed to discharge their onus and accordingly respondent's

testimony remained unchallenged. Seen from another angle, so far

as testimony of DW-1 and DW-2 is concerned, the testimony given

by both the parties, who are the petitioners and were the defendants

to the suit that cannot be basis of accepting their version to be

correct that DW-3 Smt. Gomti Devi had actually surrendered her

tenancy. For seeing the genuineness of the plea of the

petitioners/defendants with regard to alleged surrender one needs to

see the documents to arrive at a conclusion that the plea of

surrender of tenancy rights by Smt. Gomti Devi or that she was the

sole tenant in respect of the suit premises is totally belied by these

facts. The receipt-cum-possession letter dated 11.10.2011 Ex.DW-

3/1 and the Surrender Deed dated 11.10.2011 Ex.DW-3/2 clearly

show that the latter document i.e. Surrender Deed was bearing the

name of the sons of Gomti Devi, Pramod Kumar as well as Raj

Kumar, i.e. respondent herein with regard to surrender of

possession but neither of the two have signed the said document

which clearly shows that this document can reasonably be

presumed to be a forged document because if a document is

bearing the names of the parties whether that as executants or as

witnesses belonging to the same family then unless and until the

document is signed by all the said parties, there is a fair

presumption that the document is not genuine and no reasonable

explanation has been furnished by the petitioners for the same.

Therefore, these two documents which have been sought to be

relied upon by the petitioners/defendants in order to contend that

Smt. Gomti Devi had surrendered the tenancy rights seems to be

only a false plea. This is further fortified by the fact that Smt.

Gomti Devi in her testimony has stated that when she had signed

the documents they were blank and were not written. If the

documents were blank then the signatures can be misused by any

party which may have happened in the instant case also and that is

the reason Smt. Gomti Devi being an illiterate person may have

been made to sign certain documents while as it would have been

otherwise difficult for the petitioners/defendants to have obtained

signatures of sons of Smt. Gomti Devi to oust respondent/plaintiff

from the possession. So, first petitioners/defendant No.1 and 2

obtained these documents and thereafter dispossessed the

respondent/plaintiff.

12. I accordingly feel that the evidence has been rightly appreciated

and a correct conclusion has been arrived at by the learned trial

Court in decreeing the suit for possession in favour of the

respondent/plaintiff.

13. I accordingly hold that there is no illegality, jurisdictional error or

impropriety in the judgment and decree dated 23.04.2014 passed

by the learned trial Court decreeing the suit for possession in

favour of the respondent/plaintiff, who was dispossessed by the

petitioners/defendants. Accordingly, he deserves to be put back in

possession. Hence, the present revision petition being

misconceived, the same is dismissed.

14. Pending application also stands disposed of.

V.K. SHALI, J.

JANUARY 07, 2016 vk