Delhi High Court
Nafe Singh vs Prabhu & Ors on 23 May, 2016
Author: Ashutosh Kumar
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 139/2016
Date of Decision: 23.05.2016
NAFE SINGH ..... Appellant
Through Mr.Kirti Uppal, Sr. Adv. with
Mr.Virender Rana &
Mr.Siddharth, Advs.
versus
PRABHU & ORS ..... Respondents
Through Mr.Vivek Srivastava &
Mr.Ajay Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
ASHUTOSH KUMAR, J. (ORAL)
CAV 435/2016
Mr.Vivek Srivastava, learned advocate appears for the caveator.
No notice now need be sent to the respondents.
Caveat stands discharged.
CM Appln. 19404/2016
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
CM Appln. 19405/2016
For the reasons stated in the application, the delay of 13 days in
re-filing the appeal is condoned.
The application is allowed and disposed of accordingly.
RSA 139/2016
1. Nafe Singh, the appellant has challenged the judgment and
decree dated 14.12.2012 passed by the learned Civil Judge, Delhi, in
suit no.296/2012 whereby the prayer made in the aforesaid suit by the
respondents/plaintiffs for possession of the suit property was allowed
and the suit was decreed as well as against the judgment dated
22.01.2016 passed by the learned Additional District Judge, (West),
Tis Hazari Courts, Delhi, in RCA No.96/14/13 whereby the judgment
of the Trial Court, referred to above, was upheld and affirmed.
2. The respondents/plaintiffs had filed suit no.296/2012, seeking
possession of the suit property, namely a plot of land measuring 2
bishwas in Khasra no.83/1/11 in village Matiala. The case of the
respondents/plaintiffs was that the plot of land in question was allotted
to their father as he belonged to the scheduled caste community. Over
the said plot of land, a structure, boundary walls and two iron gates
were erected. It was further pleaded that the suit property was
exempted from acquisition on the reply given by the
respondents/plaintiffs to the notice under Section 91 of the Land
Acquisition Act.
3. The appellant/defendant along with two others, having their
houses situated opposite to the plot in question, unauthorizedly
trespassed into the property for taking forcible possession of the same.
Several complaints were made by the respondents/plaintiffs but no
heed was paid. Constrained, the respondents/plaintiffs preferred a suit
for injunction which was forestalled for quite some time at the
instance of the appellant/defendant when they made a statement before
the Trial Court that they had also filed a suit for declaration and
injunction as against the respondents/plaintiffs with regard to the suit
property.
4. The aforesaid suit was contested by the appellant/defendant
claiming possession of the suit land by virtue of an exchange deed
which was specifically denied by the respondents/plaintiffs.
5. The appellant/defendant stated before the Trial Court that one
Khacheru (original defendant no.3) exchanged his plot of land with
that of one Pandit Shri Nar Singh, which exchange was at the instance
of the respondents/plaintiffs.
6. The appellant/defendant had set up a case that the
respondents/plaintiffs thereafter exchanged their plot with the newly
exchanged plot of Khacheru. The aforesaid exchange was executed
on 15.08.1957 in the presence of many persons and that fact was
reduced in writing. For the appellant/defendant not being well-versed
in letters of law, necessary corrections were not carried out in the
revenue records. However, with respect to the plot in question, it was
submitted that the appellant/defendant purchased the said plot from
Khacheru and took actual and physical possession of the same for a
consideration of Rs.50,000/-. Thus after the exchange of the property,
the respondents/plaintiffs did not have any right with respect to the
plot in question and the plaintiff has predicated his case merely on the
strength of the revenue entries.
7. Based on the pleadings of the parties, an issue was framed by
the Trial Court namely "whether plaintiff is entitled to decree of
possession in respect of suit property".
8. On behalf of the respondent/plaintiffs, Dharamvir Singh and
Krishan Kumar were examined as PW.1 and PW.2 respectively. PW.1
tendered his affidavit Ex.PW.1/A and proved the documents namely
Ex.PW.1/1 to Ex.PW.1/6. PW.2 proved the GPA dated 13.10.1992
(Ex.PW.2/1).
9. Three witnesses were examined on behalf of the
appellant/defendant. The appellant/defendant relied upon the GPA
(Ex.DW.1/1) but the said document was not found to be genuine in
view of the deposition of PW.2, LDC from the office of Sub-Registrar
Janak Puri, who proved the GPA dated 13.10.1992 (Ex.PW.2/1).
10. The aforesaid document was registered on the same number but
with a different khasra number. The Trial Court did not agree with the
contentions of the appellant/defendant that the onus to prove the case
was not discharged by the respondents/plaintiffs and since no
document was produced to prove the ownership of the father, the suit
could not have been decreed.
11. The Trial Court found the name of the respondents/plaintiffs
recorded as Khatedar of the suit property (Ex.PW.1/3). The Trial
Court was of the view that since the entire defence rested on the
exchange deed, it was only an admission on the part of the
appellant/defendant that the suit land was allotted to the father of the
respondents/plaintiffs. Thus it was obligatory on the part of the
appellant/defendant to have proved that the respondents/plaintiffs had
given the suit property, in exchange, to original defendant no.3 namely
Khacheru from whom the property was purchased by the
appellant/defendant. The appellant/defendant could not discharge the
aforesaid burden and thus the suit was decreed and the relief claimed
in the aforesaid suit was granted.
12. The Lower Appellate Court took note of the fact that the
appellant/defendant had only taken the plea that revenue entries could
not give valid title to anybody but the aforesaid defence was only in
the nature of an admission of the fact that the suit property was shown
in the name of respondents/plaintiffs in the revenue records. Since the
respondents/plaintiffs proved the complaints given to police
Ex.PW.1/4 to Ex.PW.1/9, the contention of the respondents/plaintiffs
was further buttressed and, therefore, the appellant/defendant could
not have assumed any right, title or interest in the suit property.
13. The Appellate Court did not find any evidence on record to
connect the suit property with the exchange deed (Ex.DW.1/6) which
has been relied upon by the appellant/defendant. Thus the main
defence of the appellant/defendant having been jettisoned at the Lower
Appellate stage, there was no way but to accept the contentions of the
respondents/plaintiffs.
14. The Lower Appellate Court also awarded costs in favour of the
respondents/plaintiffs.
15. This Court finds no good reason to interfere with the concurrent
findings by the courts below.
16. No substantial question of law has been raised.
17. Thus, the second appeal is dismissed.
CM Appln. 19403/2016
1. In view of the petition having been dismissed, the application
has become infructuous.
2. The application is disposed of accordingly.
ASHUTOSH KUMAR, J
MAY 23, 2016
ab
