Delhi High Court
Jai Singh Thr Lrs vs Harbans Singh Thr Lrs on 14 July, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 129/2009
Reserved on: 11.05.2016
Date of decision: 14.07.2016
JAI SINGH THR LRS ..... Appellant
Through Mr.Rakesh Kr. Khanna,
Mr.Rajeev Singh, Mr.Virender
Singh and Mr.Anirudh Tanwar,
Advocates.
versus
HARBANS SINGH THR LRS ..... Respondent
Through Mr.C.Hari Shankar, Sr. Adv.
with Mr.Subhiksh Vasudev &
Mr.Ashly Cherian, Advocates.
CORAM:
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
ASHUTOSH KUMAR , J.
1. The challenge in the present second appeal by the
appellants/defendants is against the judgment and order dated
15.02.2008 passed in suit no.25/1987 preferred by the
respondent/plaintiff, Harbans Singh Bedi for recovery of possession,
mesne profits and permanent injunction with respect to property
bearing No.WZ-159, Gujar Market, Tihar Village, New Delhi
(hereinafter called the suit property) whereby the suit was decreed as
well as against the judgment dated 01.10.2009 passed by the
Additional District & Sessions Judge, Delhi in RCA No.6/2008
affirming and upholding the judgment and decree of the Trial court
but with the modification that the property was found to be in Khasra
No.1576 and not in 1573 as was held by the Trial Court or 1575 as
was claimed by the appellants/defendants.
2. The respondent/plaintiff, claiming himself to be the owner of
the suit property measuring 220 sq.yards, having purchased the same
by way of a sale deed dated 16.02.1967, alleged that the
appellants/defendants have forcibly occupied the suit property without
having any right, title or interest in it and appellant/defendant No.1,
Jai Singh sub divided the aforesaid property into eight units which
were let out to the other defendants/respondents and rent was collected
from the other defendants/respondents by respondent/defendant No.1.
The aforesaid trespass over the property was stated to have been made
sometimes around 1982. The respondent/plaintiff sent notices to the
defendants requesting them to hand over the possession of the suit
property but to no avail. Constrained, suit no.25/1987 was filed for a
decree of possession of the suit property, mesne profits and for
injuncting defendant Nos.2 to 6 from paying rent to defendant No.1
and for injuncting defendant No.1 in creating any charge with respect
to the suit property.
3. During the trial, original defendant Nos.2 & 4 were deleted
whereas defendant Nos.3-6 were proceeded ex-parte. The suit was
primarily contested by appellant/defendant No.1.
4. Preliminary objections were raised regarding the jurisdiction of
the Court, pecuniary or otherwise; the respondent/plaintiff not being
the owner of the suit property and, therefore, never been in possession;
the defendant being the sole owner of the suit property (WZ-159A)
and the other defendants being the tenants of defendant No.1. The
written statement of the other defendants namely 2, 4, 5 & 6 were
similar in contents and terms.
5. Based on the pleadings of the parties, the Trial Court, vide order
dated 23.02.1995 framed the following issues:-
i Whether the suit is properly valued for the purposes of
court fees and jurisdiction? OPD
ii Whether the civil court has no jurisdiction to try the suit
being barred by provisions of Delhi Land Reforms Act?
OPD
iii Whether the plaintiff is the owner of the suit property?
OPP
iv Whether the defendant no.1 is the owner of the suit
property, as alleged? OPD
v Whether the plaintiff is entitled to relief of possession?
OPP
vi Whether the plaintiff is entitled to any damages. If yes, at
what rate and for which period? OPP
vii Relief.
6. Ten (10) witnesses were examined on behalf of the
respondent/plaintiff and fourteen (14) witnesses stepped in the witness
box on behalf of the appellants/defendant.
7. The preliminary objections with regard to the plaint not being in
terms of Order 7 Rule 1(e) CPC and barred by limitation was rejected
by the Trial Court holding that though the property was purchased by
way of a sale deed in the year 1967 but the defendants are alleged to
have trespassed over the property in the year 1982, for vacation of
which, notices were issued on 16.07.1986 and 18.11.1986 through
registered posts and the suit having been filed on 14.01.1987, the suit
was well within the period of limitation and it matters not if it took
almost about five years for the respondent/plaintiff to have approached
the Court for the needful. Since the period of limitation is 12 years
which only starts running from the time when the suit property was
trespassed by the defendants, the suit is within the period of limitation.
8. The Trial Court, after finding the suit to have been properly
valued for the purposes of Court fees and jurisdiction, further held that
the suit was not barred under Section 185 of the Delhi Land Reforms
Act as vide notification published on 28.05.1966 in the Delhi Gazette,
it was declared that in exercise of the powers conferred under Section
507 of the Delhi Municipal Corporation Act, 1957 land falling in the
revenue estate of Tihar which hitherto had not been urbanized shall
cease to be a rural area, thus ousting the application of Delhi
Municipal Corporation Act, 1957.
9. The respondent/plaintiff, in order to demonstrate and prove that
he is the owner of the suit property produced documents in evidence
namely sale deed dated 16.02.1967 (Exh.P-1); certified copy of the
demarcation report dated 13.05.1995 (Exh.P-2); Khasra Girdawari of
the period between 28.10.1986 to 14.03.1989 (Exh.P-3); site plan
(Exh.P-4); copy of mutation (Exh.P-5); site plan dated 05.05.1995
(Ex.PW-5/A), legal notices to the defendants referred to above
(Exh.P-6 to P-12); postal receipts of legal notices (Exh.PW-13 to 14)
and notification dated 03.06.1966 (Exh.DW-1/P1). Photocopies of
certified documents which were brought on record were also asked to
be marked as Mark B (Abadi Deh), Mark XXX (Aks Sajra) and Mark
XX (Khatoni Pamaish Kewat No.105).
10. Harbans Singh, plaintiff, examined himself as PW-1 and
testified to the fact that the sale deed dated 16.02.1967 (Exh.P-1) was
executed in his presence when Bhule Ram (PW-2) and Bale Ram
(PW-3) were also present and Bhule Ram and Fattu appended their
signatures whereas Bale Ram affixed his thumb impression. Bhule
Ram (PW-2) has deposed before the Trial Court that he sold the
disputed land to the plaintiff and the sale deed was executed in his
presence. Similarly, Bale Ram (PW-3) has also affirmed the aforesaid
fact.
11. Bhule Ram (PW-2), has, in his cross examination, clarified that
he did not sell any property to the respondent/plaintiff but the sale was
by his mother Smt.Dusalu in favour of the respondent/plaintiff.
However, such contradiction in the deposition of PWs 2 & 3 was set at
rest by the testimony of Smt.Prem Kohli (PW-4), UDC, Registrar's
office, Kashmere Gate, who on checking up with the registration
book, testified to the fact that the certified copy of the sale deed in
question was issued from the office of the sub Registrar.
12. Thus the sale deed stood proved by one of the executants as
well as by PW-4, an official witness. Since the sale deed as a
document was proved in terms of Section 91 of the Indian Evidence
Act, no further evidence was required for the purposes of
contradicting the terms of the document.
13. An argument was raised on behalf of the appellants/defendants
that the sale deed described the property as measuring 220 sq. yards
when the Khatauni Girdawari showed that the vendors namely Bhule
Ram (PW-2) and Bale Ram (PW-3) and Fattu (since deceased) were
owners of only 4 biswas of land which approximates to 200 sq. yards
only. Thus it was argued that the vendors could not have conveyed a
bigger plot of land than what they possessed.
14. The Trial Court on perusal of the sale deed dated 16.02.1967
(Exh.P-1) came to the conclusion that the recital in the sale deed was
220 sq.yards approximately (the extent of the area by approximation)
out of khasra No.1573, Khatauni No.105 in the revenue estate of
village Tihar. That apart, if a document has been executed as per law,
the same could not have been discarded only on the ground that the
exact measurement of the land is more than what is stated in the recital
of the sale deed. Assuming for the sake of argument that the plot
which was sold to the respondent/plaintiff was of 220 sq. yards, only
such portion of the land and nothing more would be conveyed to the
vendee i.e. the respondent/plaintiff. The sale deed remains valid and
executable upto the extent of the title of the vendors. The First
Appellate Court concurred with the aforesaid findings of the Trial
Court and held that the appellant/defendants have not brought on
record any document to prove their title to the suit property as well as
the extent of the area of the suit property.
15. The appellants/defendants have raised doubts over the
genuineness of the demarcation report dated 15.05.1995 (Exh.P-2) and
claim it to be a false and fabricated document which has not been
proved as the original demarcation report was not produced in the
Court. The further objection to the aforesaid demarcation report is that
despite opportunity having been given to the respondent/plaintiff for
obtaining fresh demarcation report, nothing was done in that regard.
True it is that a liberty was given to the respondent/plaintiff to obtain a
fresh demarcation report, but such order was not mandatory and
precisely for that reason, the First Appellate Court ordered for a fresh
demarcation report, about which, reference would be made later.
16. Harbans Singh Bedi, plaintiff PW-1 has stated before the Trial
Court that he got the land demarcated by approaching the revenue
department and referred to the certified copy of the demarcation
report. The aforesaid statement of PW-1 was given on 29.05.1997 but
till his death he was not cross examined.
17. Prem Prakash, Kanoongo, (PW-5) has testified to the fact that
despite best efforts by him, the original file could not be traced in the
record room but he proved the certified copy of the demarcation
proceedings dated 13.05.1995. The certified copy is said to have been
signed by PW-5 on 13.06.1995 and only after comparing it with the
original, the certified copy was issued. The notice attached to the
demarcation report (Exh.PW-5/A) also was proved by PW-5.
18. Mukund Aneja, Patwari (PW-6) has affirmed the fact that
demarcation was conducted in his presence by Girdawar Mahender
Singh. Similarly, Mahender Singh (PW-7), Land and Building, Vikas
Bhawan also affirmed the fact that demarcation proceedings were
completed in presence of the parties. The whole process was carried
out at the spot.
19. Thus from the evidence of the aforesaid witness namely PW-1,
PW-5, PW-6 and PW-7 it is proved that the demarcation report is a
genuine document and what was offered in evidence was the certified
copy of the original document. The Trial Court took note of the fact
that PW-5 categorically stated that despite the best efforts, the original
file could not be traced and held that in the absence of any material
otherwise to suggest any fabrication or interpolation, the same was
required to be accepted.
20. With regard to the identification and description of the suit
property, the contention of the respondent/plaintiff is that it falls in
Khasra No.1573 whereas the appellants/defendants have insisted upon
the suit property falling in Khasra No.1575. The appellants/defendants
have disputed the municipal number of the suit property also. The
respondent/plaintiff have claimed the suit property to be WZ-159
whereas the appellants/defendants claim it to be WZ-159A. The
boundaries of the suit property were discerned to be the same.
21. The appellants/defendants had applied for obtaining the status
report from the revenue authorities. It is submitted that the revenue
authorities, after conducting the proceedings, prepared a status report
of the property No.WZ-159A which is said to be located in Khasra
No.1575 and not 1573, on 22.06.2005. The aforesaid status report was
taken on record by the order of the Trial Court. It is submitted that the
status report, even though, was validly proved, the Trial Court rejected
it for the reason that it could not be ascertained as to under what
provision of law such a status report was issued.
22. Suresh Kumar Saini, Draftsman (DW-6) stated before the Trial
Court that the status report (Exh.DW-1/G) was prepared by him which
assertion was supported by Prakash Vardhan, the then Tehsildar, West
District (DW-9).
23. The Trial Court though took the status report as a proved
document but did not rely upon it as status report is not of the genre of
demarcation report. A different and specific procedure is prescribed
for preparation of a demarcation report which may not be akin to the
making of a status report. Whether a status report is prepared in the
presence of the parties or after noticing the parties or whether it is
done by identifying fixed references or not, is not certain. What
weighed with the Court in not relying upon the status report furnished
by the defendant was that no notice was issued to the
respondent/plaintiff before preparation of the said status report. In this
context the deposition of Rajbir Bansal, LR of defendant No.1 (DW-1)
is relevant. He has admitted that all the proceedings were conducted
on the same day. Thus the Trial Court as well as the First Appellate
Court rightly did not rely upon the status report filed by the
appellant/defendant as being prepared without observing the necessary
formalities and without any permission under law.
24. With regard to the description of the property, different versions
came from the parties. The respondent/plaintiff claims that the
property falls under Khasra No.1573 whereas the defendant asserts
that the suit property falls under Khasra No.1575. There is difference
in the measurement, municipal number and the area of the suit
property also in their respective versions. The Trial Court at para 47 of
the judgment, has prepared a tabular chart with respect to the
description given by the parties respectively. The same is reproduced
here for convenience:-
Plaintiff (Area 220 sq. ft.) Defendant (Area 300 sq. ft.)
Measurement Measurement
East Gali 74' East Gali 74' - 6"
West Road 62' West Main 62' - 6"
Pucca road
North House 37' - 6" North House 37'
No.164 of
Manglu
South Lane 44' - 6" South Gali 44' - 6"
25. The Trial Court, on finding negligible difference in the
description of the surroundings, the demarcation report (Exh.P-2)
having been prepared in the presence of the parties, notice (Exh.PW-
5/A) which was given to the appellant/defendant before inspection
which bears his signature as well as the deposition of witnesses,
especially of PW-6 (Patwari), came to the conclusion that the suit
property fell in Khasra No.1573. On the other hand, the documents
furnished on behalf of the appellants/defendants namely Khasra
Girdawari (Mark A) for the period 28.10.1986 to 11.09.1987 in
respect of Khasra No.1575, ration card (Exh.DW-1/C); Electricity Bill
(Exh.DW-1/D); Nakal Khasra Girdawari (Exh.DW-5/1); status report
(Exh.DW-1/G); Valuation report (Exh.DW-1/H); Lal Dora (mark B);
house tax notice (Exh.DW-1/E) and voter list (Exh.DW-12/1), were of
no help in establishing the identity of the property.
26. It was argued that the site plans i.e. Ex.PW9/D1 (filed along
with the suit) and Ex.P4 of the respondent/plaintiff could not have
been relied upon by the Trial Court, for the reason, inter alia, that the
former (Ex.PW9/D1) was categorically stated as being incorrect by
PW9 (Baljeet Singh Bedi) in his testimony and the latter (Ex.P4) was
not duly proved in accordance with law, and also that the same were
contradictory in as much as they carried different dimensions and area.
27. The merits of the aforesaid contentions are not being evaluated
as they lose their relevance in view of the demarcation report dated
31.08.2009, prepared pursuant to the orders of the First Appellate
Court, for having a clear picture over the issue. The said report
sufficiently identifies the suit property and puts an end to the question
of conflicting site plans. It was prepared by way of the Total Station
Method, which is, by far, the most accurate method of identification
and demarcation of the suit property.
28. The demarcation report dated 31.08.2009 discloses that the suit
property measures around 331.10 sq. yards. The plaintiff, on the basis
of the sale deed dated 16.02.1967, has claimed ownership to the extent
of only 220 sq. yards. Thus the Trial Court rightly limited the relief
granted to the respondent/defendant to the extent of 220 sq. yards.
29. The Trial court although held the respondent/plaintiff to be
entitled to 220 sq. yards as per the sale deed, but relied upon Ex.P4, as
per which the property measured more than 300 sq. yards and being
for WZ-159A. The site plan given by the appellants/defendants is
similar to the demarcation report and even contains the same
municipal number, but no document of title has been produced by the
appellant/defendant to substantiate their case. Revenue records, voter
list electricity bill etc. do not establish any title in favour of the
appellants/defendants. Furthermore, title cannot be established merely
on the fact that the site plan is similar to the demarcation report. On
the other hand, the respondent/plaintiff has duly proved the sale deed
albeit, for khasra no. 1573, which discrepancy has been sufficiently
explained and accepted.
30. Khasra Girdawari (Mark A) was issued in the name of Jai Singh
(appellant/defendant). However, in the column of the owner, it states
"Abadi Deh" and in the column of the cultivator it is stated "Makbuja
Abadi Deh". Thus it is only an endorsement of the fact that certified
copy of Khasra Girdawari has been issued to Jai Singh, the appellant
who is son of Bhim Singh and, as claimed, resident of WZ-159A,
Village Tihar. Thus mark A does not identify the possession or title of
the appellant/defendant with respect to Khasra No.1575. Similarly,
ration card (Exh.DW-1/C) was of the year 1983 and the electricity bill
(DW-1/D) is in the name of the appellant/defendant but it is of the
year 1986.
31. Nakal Khasra Girdawari (DW-5/1) and Lal Dora Certificate
(Mark B) refer to the erstwhile tenant namely Bansi Lal but the area
described is 45 sq.yards falling in Khasra No.1575. The house tax
notice (Exh.DW-1/E) issued by the MCD is in the name of Kalawati
who is the wife of the appellant/defendant and two others and which is
for the assessment year 1988-89. However, the reference of the house
is of WZ-159E and not WZ-159A. The voter list of 2007 (Exh.DW-
12/1) does not contain the Khasra number. Thus the Trial Court
rightly observed that the aforesaid documents offered on behalf of the
appellant/defendant pertained to the period later than the alleged
trespass and, therefore, cannot be taken as proof of the fact that the
appellant/defendant had occupied the suit property from a period
earlier to 1982. Chunni Lal (DW-2), a resident of the same locality,
testified that the appellant/defendant stayed in the aforesaid house for
the last 50 years but fairly admitted that he had not seen any one of the
document of title of the appellant/defendant. That apart, he has stated
that the whole village falls in Khasra No.1575 and did not even
specify the municipal number of the property. With regard to the
measurement, his estimate was 300 sq.yards.
32. Rameshwar Dayal, Valuer (DW-14) claimed to have visited the
suit property but did not measure it. He also provides a rough estimate
of 300 sq.yards and the aforesaid assessment was on the basis of
assessment by Sh.Rajbir Bansal, LR of original defendant No.1 (DW-
1).
33. Satish Vashisht, Kanoongo (DW-8) though has testified that the
suit property falls under lal dora but such statement was of no
consequence as he had not seen the lal dora certificate of the appellant.
34. The First Appellate Court concurred with the findings of the
Trial Court regarding the suit being properly valued and the Civil
Court having jurisdiction to try the case as admittedly the land was not
agricultural, rather it was urbanized vide requisite notification under
the DMC Act. With regard to the limitation also, the findings of the
Trial Court were accepted by the First Appellate Court.
35. With respect to the identification and description of the suit
property, the First Appellate Court, as stated earlier, in order to have a
clear picture directed for preparation of a fresh demarcation report.
Pursuant to the aforesaid direction, a demarcation report was prepared
by adopting the Total Station Method, in presence of the parties as the
area at that time had been completely built up. The demarcation report
describes the suit property as falling in Khasra No.1576 and not in
Khasra No.1575 as claimed by the appellant or 1573 as asserted by the
respondent/plaintiffs.
36. Mr.Rakesh Kumar Khanna, Senior Advocate submitted that
pursuant to the orders of the First Appellate Court on 15.07.2009,
demarcation was carried out with the help of Total Station Method in
presence of the parties. Three permanent points were fixed with the
consent of both the parties before carrying out the demarcation. The
report dated 31.08.2009 was filed in the Court wherein the property
was shown to be falling in Khasra No.1576. No objections were filed
by the respondent/plaintiff or the appellant/defendants which pre
supposes the fact that the demarcation report had been accepted by the
parties. Thus it had attained finality. In that event, the finding of the
Trial Court that the suit property fell in Khasra No.1573 could not
have been accepted and with the new demarcation report, the entire
case of the respondent/plaintiff was destroyed. It was further
submitted by Mr.Khanna that the new demarcation report showed the
site claimed by the respondent/plaintiff to be vacant (Khasra
No.1573). In that view of the matter, it was urged, that the First
Appellate Court should have rejected the claim of the
respondent/plaintiff as he had failed to prove his claim of plot of 220
sq.yards falling Khasra No.1573 of Village Tihar and it was absolutely
unprecedented that the First Appellate Court came out with a fresh
decision of the suit falling in Khasra No.1576 which is neither the case
of the respondent/plaintiff nor of the appellant/defendant. The learned
Senior Advocate submitted that the Appellate Court erred in accepting
the plea of the respondent/plaintiff that when the appellant/defendant
could not establish his case regarding the property falling in Khasra
No.1575, only the real owner of the plot could have put up a claim
against the him. Simultaneously, it was submitted that the
respondent/plaintiff, did not establish any better title over the premises
which actually was in possession of the appellants/defendants and this
fact was completely ignored by the First Appellate Court. For the
failure on the part of the respondent/plaintiff to establish a better title,
the burden could not have been saddled upon the appellant/defendant.
37. The appellants urged that the Trial Court erred in holding that
since the suit property did not fall in Khasra No. 1575, the
appellant/defendant had no right thereto. The Counsel of the appellant
argued that a person in possession of a land has a perfectly good title
against the entire world except the rightful owner. Since, the
appellant/defendant was in possession, onus to prove better title was
upon the Respondent/plaintiff, who failed to discharge the said onus.
The appellants relied upon the judgment of the Supreme Court in Ram
Daan vs. Urban Improvement Trust (2014) 8 SCC 902 wherein it was
held as under:
"11. It is settled position of law laid down by the Privy
Council in Perry v. Clissold[1907 AC 73 (PC)] : (AC p. 79)
"It cannot be disputed that a person in possession of
land in the assumed character of owner and exercising
peaceably the ordinary rights of ownership has a perfectly
good title against all the world but the rightful owner. And if
the rightful owner does not come forward and assert his title
by the process of law within the period prescribed by the
provisions of the Statute of Limitations applicable to the
case, his right is forever extinguished, and the possessory
owner acquires an absolute title."
The above statement was quoted with the approval by this
Court in Nair Service Society Ltd. v. K.C. Alexander [AIR
1968 SC 1165]. Their Lordships at para 22 emphatically
stated: (AIR p. 1175)
"22. The cases of the Judicial Committee are not binding
on us but we approve of the dictum
in Perry v. Clissold [1907 AC 73 (PC)]."
12. The question, therefore, is that in view of the
concurrent finding recorded by all the three courts below
that the appellant has been in possession of the property (at
least from the year 1959) whether the injunction as prayed
for by the appellant can be denied? As can be seen from the
judgment [1907 AC 73 (PC)] of the Privy Council referred
to supra, a person such as the appellant in possession of
land has a perfectly good title against the entire world
except the rightful owner. However, the rightful owner must
assert his title by the process of law within the period
prescribed by the statutes of limitation applicable to the
case."
38. The legal principles set out in the said judgments are no longer
res integra and cannot be disputed. However, the aforesaid principle is
not applicable herein as the title of the respondent/plaintiff was duly
asserted and proved in the present proceedings by way of sale deed
dated 16.02.1967. Furthermore, the appellant/defendant even failed to
establish possession prior to the year 1982 i.e only 5 years before
filing of the suit. The sale deed was duly proved in all respects before
the Trial Court and it being a document of antiquity, carried with it a
legal presumption as to its genuineness. It was contended that the sale
deed pertained to property in Khasra No. 1573. The reference of
Khasra No. 1573 in the sale deed, in the opinion of the First Appellate
Court, could be because of a mistake in the description as in the early
1970s people were not aware about Khasra Numbers. Moreover, even
the revenue authorities were treating the suit property to be in Khasra
No. 1573. The First Appellate Court held that a mistake in the
description would not by itself frustrate the claim of the
respondent/plaintiff.
39. The First Appellate Court, however, concurred with the
assessment of the Trial Court and held that the appellant/defendant
shall be liable to pay damages at the rate of Rs.500/- per month
against each units i.e. defendant Nos.1, 2, 4 & 6 and Rs.1500/- against
defendant No.5. The assessment of Rs.3000/- per month as damages
settled by the Trial Court was accepted in its entirety by the First
Appellate Court.
40. The present second appeal was admitted on the substantial
question of law as to whether the First Appellate Court was justified in
passing a decree of possession in favour of the respondent/plaintiff
with respect to suit property which according to it fell in Khasra
No.1576 but which according to the Trial Court fell in Khasra
No.1573 and as per the case of the respondent/plaintiff fell in 1573
and as to what would be the effect of such land description in the
second demarcation report. The major ground of challenge to the
impugned judgment is that it is based on perverse findings namely (i)
the description of the property claimed could not be established; (ii)
the area of the suit property claimed was more than the property which
was owned by the vendors and which was conveyed to the
respondent/plaintiff; (iii) both the Courts did not appreciate that there
were contradictory pleadings in the suit (e.g., at one place in the plaint
it was stated that the appellant/defendant forcibly and illegally
occupied the suit property without the consent of the
respondent/plaintiff and divided it in eight units but nowhere has it
been stated that the appellant/defendant No.1 rented out different units
and was collecting rent from the lessees). The contents of the notices
(Exh.PW-6 to PW-12) were lacking in details as to the date, month
and year of taking forcible possession and that the Courts below did
not consider the fact that no cause of action was disclosed in the legal
notice or in the plaint and, therefore, Order 7 Rule 1E of the CPC
which mandates delineation of cause of action as to when it arose, was
not fulfilled. What has been heavily relied upon is the statement of
PW-9 who in his cross examination stated that his father,
(respondent/defendant No.1) never remained in physical possession of
the property at any time.
41. The testimony of PW9 cannot be read in isolation. On a
conjoint reading of the deposition of PW2 & PW3 (Vendors) it
becomes apparent and obvious that the respondent/plaintiff was put in
possession of the suit property after its sale. The sale deed (which was
duly proved in all respects) further establishes the same. Thus it is
proved beyond doubt that the plaintiff was in de jure possession of the
property until forceful possession thereof was taken.
42. The appellant stresses that the relief granted by the Courts
below is beyond the prayer of the Respondent/ Plaintiff. It was argued
that the relief of possession of property no. WZ-159 measuring 220 sq.
yards, by bifurcating/dividing the suit property so as to exclude 80 sq.
yards, as well as awarding damages @Rs. 3000/- p.m. w.e.f. the date
of issuance of the legal notice (16.07.1986), was beyond the case put
up by the Respondent/plaintiff. The plaintiff had claimed mesne profit
of Rs. 4,000/- for the month of October, 1986 only and as such, a
relief which has not been prayed has been wrongly granted by the
Courts below. In Om Prakash & Ors. Vs. Ram Kumar & Ors. (1991) 1
SCC 441 it has been observed that a relief not claimed cannot be
granted, if the circumstances of the case are such that the awarding
such relief would cause grave prejudice to the interested persons and
deprive them of valuable rights under the statute.
43. It is indubitable that the jurisdiction to grant relief in a civil suit
necessarily depends on the pleadings, prayer, evidence led therein etc.
but, taking into account factors such as commercial use of land, long
period of occupation and the location of the property, the Courts
below considered such assessment of mesne profits to be reasonable
and sufficient in order to meet the ends of justice. The aforesaid
findings do not warrant interference and, in the opinion of this court,
is absolutely justified.
44. The contention of the appellant that as per the fresh demarcation
report, the plot of the plaintiff is lying vacant in Khasra No. 1573, is
noted only to be rejected as the same is not borne out from the records.
45. Mr. Hari Shankar, learned Senior Advocate appearing for the
respondents submitted that the second appeal by the appellant was not
maintainable as by the aforesaid appeal, the appellant/defendant has
only tried to breach a concurrent finding of fact. He submits that a
finding of fact, even if erroneous would not always constitute a
question of law and for a substantial question of law to arise, the
wrong finding should stem out of a complete misreading of the
evidence or if it is found that the judgment is based on only
conjectures and surmises.
46. Learned counsels have cited several case laws, particularly on
the issue as to what would constitute a substantial question of law
between the parties and whether at a belated stage, when the pleadings
were complete and the evidences have been garnered, additional
evidence could be permitted to be adduced. However, the aforesaid
aspects of law are well settled and do not require the same being
repeated or analyzed in the present case.
47. The respondent/plaintiff has fully substantiated his case. The
suit property was conveyed to the respondent/plaintiff by virtue of a
sale deed dated 16.02.1967. The suit is not bared by limitation and the
jurisdiction of the Civil Court is not ousted for the reason that the
unauthorised occupation of the suit property takes place somewhere
around 1982 and notices to quit/vacate were given to the
appellant/defendants in the year 1986 whereas the suit was filed in the
year 1987 and the area of Tihar village stands denotified from the list
of rural areas. The demarcation report dated 31.08.2009 describes the
property in Khasra No.1576. True it is that the respondent/plaintiff in
his plaint has given the reference of Khasra No.1573 which was
disputed by the appellant/defendants who have claimed the suit
property to be falling in Khasra No.1575, nonetheless, the Total
Station Method of demarcation and the report need be accepted as it is
the best method for demarcating/identifying the suit property in a built
up area.
48. The net impact of the report of the demarcation of 2009 would
be that the stand of the appellants/defendants remains unsubstantiated
and the objection to the identification and description of the suit
property becomes meaningless. What is, therefore, of significance is
that no cloud could be cast over the sale deed of 1967 which has been
proved in all respects and which document is of an old antiquity. The
appellants/defendants have not been able to prove their title or even a
better title to the suit property. The objections with regard to the suit
property being of a bigger area than what was allegedly conveyed to
the respondent/plaintiff also loses its relevance in view of the
judgment of the First Appellate Court directing possession of the
property to the extent of the area described in the sale deed dated
16.02.1967 and the judgment to be executable only to the said extent.
49. This Court finds no reason to interfere with the concurrent
judgments of the Courts below.
50. The present second appeal is, therefore, dismissed but without
costs.
CM Appln. 14766/2009 & 91/2013
1. In view of the petition having been dismissed, the applications
have become infructuous.
2. The applications are disposed of accordingly.
ASHUTOSH KUMAR, J
JULY 14, 2016
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