Municipal Corporation Of Delhi vs Amarjit Kaur & Ors
2018 Latest Caselaw 4440 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 1st August, 2018.

+               RSA 17/2010, CM Nos.16427/2018 & 17580/2018

       MUNICIPAL CORPORATION OF DELHI               ..... Appellant
               Through: Ms. Biji Rajesh & Ms. Sneha Verma, Advs.
                        for Mr. Gaurang Kanth, Adv.

                                        Versus
    AMARJIT KAUR & ORS                      ..... Respondents

Through: Mr. S.K. Bhalla, Adv.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. On the last date of hearing i.e. 4th July, 2018, the following order was passed:-

"1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment dated 2nd September, 2009 in RCA No.04/2009 of the Court of Sh. Virender Bhat, Additional District Judge (ADJ), Delhi allowing the appeal preferred by the respondents against the judgment and decree dated 13th March, 2009 of the Court of Sh. Vinay Singhal, JSCC- cum-ASCJ-cum-Guardian Judge, West District, Delhi of dismissal of Suit No.2463/2008 instituted on 28th January, 1992 by the predecessor of the respondents / plaintiffs and thereby passing a decree in favour of the respondents / plaintiffs and against the appellant / defendant of recovery of possession of land measuring 200 sq. yds. bearing Municipal No.G-60, situated at Shiv Nagar, Hari Nagar, Delhi and of recovery of damages / mesne profits at the rate of Rs.2,000/- per month with effect from the date of filing of the suit till the date of vacation.

2. The appeal came up before this Court first on 29th January, 2010 and thereafter on 11th February, 2010 when notice thereof was ordered to be issued and the execution of the impugned judgment and decree stayed. The said interim order has continued till date.

3. In the order dated 25th July, 2011, it was observed that "one of the substantial questions of law which would arise in the present appeal is as to whether the Appellate Court was justified in overlooking the open continuous and peaceful possession of the appellant from 1959 and which would have ripened into title by law of prescription inasmuch as the suit for possession was filed by the respondents / plaintiffs only in the year 1992".

4. This appeal was dismissed vide judgment dated 27th September, 2013, answering the aforesaid substantial question of law against the appellant / defendant.

5. The appellant/defendant preferred SLP(C) No.14207/2015 and vide order dated 4th April, 2016 of the Supreme Court, the Civil Appeal No.3391/2016 was disposed of by remanding the matter to this Court to answer the issue "as to whether the respondents - plaintiffs had been able to prove their sale deed as required in law" and with a direction to adjudicate the right, title and interest of the respondents / plaintiffs in the suit property "on the basis thereof".

6. The counsels have been heard and the trial court record and the First Appellate Court record requisitioned perused.

7. The respondents / plaintiffs instituted the suit, from which this appeal arises, pleading (i) that the respondents/plaintiffs are the owners of a piece of land ad-measuring 200 sq. yds. (30' x 60'), bearing Municipal No.G-60, situated in Hari Nagar, of village Tihar, District Delhi now known as Shiv Nagar, Hari Nagar, New Delhi by virtue of a sale deed registered on 14th June, 1957 vide No.1627, Book No.1, Volume No.74, Pages No.381 to 383 at the Sub-Registrar Office, Delhi; (ii) that the respondents / plaintiffs have been in actual physical possession of the aforesaid land and raised boundary wall around the same; (iii) that the appellant / defendant wrongfully, illegally and without the consent of the respondents / plaintiffs occupied the said piece of land, somewhere in the year 1970, and raised some temporary structure thereon; and,

(iv) that the appellant/defendant is in unauthorized occupation of the property.

8. The appellant / defendant contested the suit, as per its amended written statement dated 3rd August, 2000, pleading (a) that the respondents / plaintiffs have no right, title or interest in the property;

(b) that the respondents / plaintiffs had submitted a fake sale deed before the Court; (c) that the respondents / plaintiffs never got

possession of the disputed property, so the sale deed could not be executed in favour of the respondents / plaintiffs; (d) that the appellant / defendant is the owner of the property and M.C. Primary School, Shiv Nagar, Hari Nagar, Delhi has been running on the said property since 1959, without any interruption or hindrance of any kind from any person; (e) that the appellant / defendant became the owner of the said property by way of adverse possession since 1971; (f) that the suit is barred by Section 41(h) of the Specific Relief Act; (g) that the Civil Court has no jurisdiction to entertain the suit as the respondents / plaintiffs have to seek demarcation of the land before the SDM and to seek a remedy before the SDM; (h) that the respondents / plaintiffs are not the owners of the suit land;

(i) that the respondents / plaintiffs had not given any khasra number or girdawari of the suit land and the subject property does not bear the Municipal Number G-60; and, (j) that the site plan filed by the respondents / plaintiffs is wrong.

9. The following issues were framed in the suit:

1. Whether the suit of plaintiff is not barred by limitation?

1. Whether the plaintiff is owner of suit land? (OPP)

2. Whether the valuation of suit property for the purpose of court fee and jurisdiction is not correct? (OPP)

3. Whether notice under Section 478 DMC Act is not served upon the deft.? (OPD)

4. Whether plaintiff is entitled to a decree of possession, as prayed for? (OPP)

5. Whether plaintiff is entitled to decree of damages, as prayed for, or it entitled to what amount and at what rate? (OPP)

6. Relief.

10. From the record, it transpires that on 7th February, 1995, only the issue No.1 aforesaid was framed and which, on the basis of the evidence led, was decided in favour of the appellant / defendant and against the respondents / plaintiffs and the suit was resultantly dismissed. The respondents / plaintiffs preferred appeal against the judgment and decree of dismissal of the suit and which was allowed and the suit remanded for trial after framing other issues. Thereafter, the other issues aforesaid were framed on 20th January, 2003.

11. The suit, as aforesaid, was again dismissed vide judgment th dated 13 March, 2009, recording/observing/finding/holding (i) that

the respondents / plaintiffs had proved notice dated 21st September, 1991 and the suit was filed within the period of limitation prescribed under Section 478 of the Delhi Municipal Corporation Act, 1957; (ii) that the appellant / defendant had not led any evidence on the aspect of valuation, onus of issue with respect whereto was on the appellant / defendant and thus the said issue was decided against the appellant / defendant; (iii) that the respondents / plaintiffs had proved on record the certified copy of the sale deed of the subject land in their favour as Ex.PW1/1, the khasra girdawari as Ex.PW1/2 and the layout plan as Ex.PW1/3; (iv) that the original respondent / plaintiff, in whose favour the sale deed was executed, had expired during the pendency of the suit and the respondents / plaintiffs, in proof of the sale deed, had examined Tirath Singh, a witness to the sale deed, as PW2; (v) the said PW2, in his cross- examination, had admitted that the sale deed was not written in his presence and he did not know the contents thereof; moreover, the sale deed was in Urdu language and which language was unknown to him; (vi) PW2 also deposed that he did not remember as to who else had signed the sale deed; (vii) that a witness to a document, without knowing as to for what purpose and as to for what document he is standing as a witness, cannot be relied upon and cannot prove the document; (viii) that the respondents / plaintiffs having failed to prove the sale deed had failed to prove their ownership of the property; (ix) that the respondents / plaintiffs, on 19th February, 1996, had admitted the version of the appellant / defendant to the effect that the appellant / defendant was in possession of the property since 1959; (x) that the appellant / defendant in their evidence had also proved their possession since 1959; and (x) that the suit having been filed after forty years therefrom, in 1992, was barred by time. Resultantly, the suit was dismissed.

12. The First Appellate Court set aside the aforesaid judgment, and decreed the suit, reasoning (a) that Supreme Court in T. Anjanappa Vs. Somalingappa 2006 (2) RLR 757, Bina Pani Paul Vs. Pratima Ghosh 2007 V SLT 475, Annakili Vs. A. Vedanayagam SX IX (2007) SLT 461 and Saroop Singh Vs. Banto (2005) 8 SCC 330 has held that a plea of adverse possession is antithetic to the plea of lawful title and both cannot co-exist and for a plea of adverse possession, admission of the title of the other is essential; (b) that the appellant / defendant on the other hand never acknowledged the respondents / plaintiffs to be the owner of the

land and did not plead that if the respondents / plaintiffs were not the owner, who else was the owner and qua whom the appellant / defendant was in adverse possession; (c) that on the contrary the sole witness of the appellant / defendant also stated that the respondents / plaintiffs are not the owner of the property and that the appellant / defendant was not in possession of copies of ownership / title deeds with respect to the property and never attempted to ascertain as to who was the true owner of the property;

(d) that in view of the aforesaid pleadings, the plea of the appellant / defendant of adverse possession falls flat on the ground; (e) that thus the judgment of the suit court, insofar as holding the appellant / defendant to be in adverse possession of the land and the suit to be barred by time, was liable to be set aside; (f) that the sale deed dated 15th June, 1957 Ex.PW1/1 was more than 30 years old; (g) that Section 90 of the Indian Evidence Act, 1872 raises a presumption of genuineness of a document which is more than 30 years old and is produced from proper custody; (h) Supreme Court, in Sri Lakhi Baruah Vs. Sri Padma Kanta Kalita AIR 1996 SC 1253, has held that Section 90 has been incorporated to do away with the strict rule of proof of private document; (i) that in the present case, the sale deed has been produced by the original respondent/plaintiff who claim to have purchased the land by virtue of sale deed and thus has come from proper custody; there was thus presumption of genuineness of the sale deed and the appellant / defendant had not led any evidence to rebut the said presumption; (j) PW2 Tirath Singh also had nowhere deposed that he did not know, for which document he was standing as a witness and had only stated that he did not know the contents of the registered sale deed as the same were in Urdu language; (k) that it was not necessary for an attesting witness to go through the document for which he stands as a witness and to know its contents; reliance in this regard was placed on Selvi Vs. Gomathy Anmol 2009 (2) SCC 158; (l) PW2 Tirath Singh, in his deposition, had stated that he has seen the seller Mayawati signing the sale deed Ex.PW1/1 and this is sufficient attestation required by law; (m) that it is not the case of the appellant / defendant that Mayawati had no title to the suit land or could not have executed the sale deed in favour of the original respondent/plaintiff; and, (n) that the appellant / defendant being a public body, has a duty to safeguard the interest of the general public and was in the wrong in depriving the citizen of their property.

13. The counsel for the appellant / defendant today also started her arguments by taking up the plea that the appellant / defendant is admittedly in possession of the property since 1959 and the suit filed in the year 1992 i.e. after 33 years, was barred by time.

14. Not only is the aforesaid contention contrary to the direction issued by the Supreme Court while remanding this Second Appeal but the counsel for the appellant / defendant also, on enquiry, whether it is open to the appellant / defendant as 'State' within the meaning of Article 12 of the Constitution of India, to set up a plea of adverse possession, has fairly stated that the appellant / defendant is not arguing on the basis of adverse possession or of the suit claim being barred by time.

15. Suffice it is to mention State of Haryana Vs. Mukesh Kumar (2011) 10 SCC 404 holding that the State cannot take the plea of adverse possession.

16. The counsel for the appellant / defendant otherwise has contended (i) that the sale deed Ex.PW1/1 on the basis of which the respondents / plaintiffs claim title, to maintain the suit for recovery of possession of immovable property on the basis of title, is in Urdu language; (ii) that no translation of the sale deed was placed on record of the trial court; (iii) that though the respondents / plaintiffs before this Court at page 293 have filed an English translation of the sale deed but the appellant / defendant has not been able to verify whether the said translation is correct or not; and, (iv) that because the sale deed is in Urdu language, it was incumbent upon the respondents / plaintiffs to prove the contents of the sale deed.

17. I have enquired from the counsel for the appellant / defendant, whether not it is the law as provided in Section 91 of the Evidence Act and as held in Roop Kumar Vs. Mohan Thedani (2003) 6 SCC 595 that once the execution of the document is proved, the contents thereof need not be proved.

18. The counsel for the appellant / defendant agrees.

19. The counsel for the appellant / defendant states that her contention is that the contents are required to be proved in view of the document being in Urdu language. However, on enquiry as to which is the acceptable language and the contents of a document, in which language, do not have to be proved, the counsel for the appellant / defendant states that if the document is in English language, then the contents thereof are not to be proved. At this

stage, the counsel for the appellant / defendant states that she is not arguing so but her contention is "that if everybody is not able to understand a language in which the document is, then contents of the documents have to be proved. The Judge presiding the Suit Court and the Judge presiding the First Appellate Court also could not understand the Urdu language in which the document was". However, the counsel for appellant / defendant admits that neither is there anything on record that the learned Judges did not understand the document nor were any enquiries made in this regard.

20. The counsel for the respondents / plaintiffs states that a Hindi translation of the sale deed is at page 331 of the trial court record.

21. The counsel for the appellant / defendant states that there is no such Hindi translation and draws attention to the order dated 6th January, 2017 in this appeal as under:

"1. When the hearing commenced and LCR was to be referred, it has been pointed out by Mr. S. K. Bhalla, learned counsel for the respondents that complete LCR is not available here. He has drawn the attention of this Court to the judgment dated 13th M"4. The present suit has been filed on 28.07.1992. In the W/S, no objection has been taken that the claim filed by the plaintiff is time barred. However, a preliminary issue was framed regarding maintainability of the suit being barred by limitation which was decided vide judgment dated 02.0.3.1996 by the Ld.Predecessor of the Court, thereby dismissing the suit of the plaintiff after considering the evidence led by parties on that point.

The said judgment was set aside by Ld.Appellate Court vide order dated 22.07.1998 directing the Court to frame issues arising out of the case and decide the same including the issue of limitation on the basis of the evidence on all the arch, 2009 passed in Suit No. 2463/08 by Civil Judge wherein in para No.4 (page No. 163 of Trial Court's record) it has been recorded as under:-

issues."

2. He submits that that part of the LCR was separately consigned to record room and he will try to find the complete Goshwara number.

3. In the instant case, learned counsel for the appellant submits that neither the witnesses knew the contents of the sale deed nor any translation of the sale deed (Hindi or English) was filed by the plaintiff. Hence both the Courts below have passed the judgment without even knowing the contents of the sale deed which was in Urdu language. On the issue whether any translation

or transliteration was made available to the learned trial Court or First Appellate Court before the impugned judgments were passed, Mr.S.K.Bhalla submits that this question was never raised earlier.

4. Learned counsel for the respondent is directed to find out the complete Goshwara number by which part of the LCR was consigned to record room separately so that the same can be requisitioned.

5. Renotify for 20th January, 2017."

22. No other trial court record has been received since then.

23. Be that as it may, I am unable to accept the contention aforesaid of the counsel for the appellant / defendant. It was incumbent upon the appellant / defendant to, before filing written statement to the suit, if entertained any doubt about the contents of the document, have the document translated and to file the written statement thereafter. Rather, the contention shows the lackadaisical manner in which the appellant / defendant has gone with the litigation by filing the written statement without even understanding the contents thereof. It is also not as if the appellant / defendant at any time approached the Court for a direction to the respondents / plaintiffs to file a translated copy of the sale deed on the basis whereof the suit was filed. It cannot be lost sight of and judicial notice can be taken of the fact, that at the relevant time, Urdu was an accepted language and documents in Urdu language were registered in the office of the Sub-Registrar. The certified copy of the registered sale deed is found on the trial court record and neither has any plea been taken nor is there anything on record to entertain any suspicion about the same. The appellant / defendant also does not appear to have taken the trouble of inspecting the office of the Sub-Registrar to find whether the original of the document has been registered or not and did not even raise any objection to the admission into evidence of the certified copy of the sale deed and never sought inspection of the original thereof.

24. A perusal of the testimony of PW1, being one of the respondents / plaintiffs and PW2 Tirath Singh aforesaid who only have deposed about the sale deed however does not show that the original sale deed was produced before the Court at any point of time.

25. The counsel for the respondents / plaintiffs also admits that the original was never produced before the Court and only the certified copy was produced before the Court.

26. I have thus enquired from the counsel for the respondents / plaintiffs as to where is the original sale deed.

27. The counsel for the respondents / plaintiffs states that the original sale deed was / is not available with the respondents / plaintiffs.

28. The respondents / plaintiffs did not examine any witness from the office of the Sub-Registrar and did not have the record of the Sub-Registrar containing the document of which certified copy has been issued, provided before the Court.

29. The counsel for the respondents / plaintiffs has drawn attention to Section 68 of the Evidence Act, particularly to proviso thereof, to contend that where the document as a sale deed is registered, the production of the certified copy alone can be enough. It is further argued that though the appellant / defendant in its written statement contended that the sale deed is vague, forged and fabricated, but did not deny the execution by Mayawati thereof. It is contended that thus, the execution of the sale deed has not been specifically denied within the meaning of proviso to Section 68. Reliance in this regard was placed on State of Haryana Vs. Ram Singh IV (2001) SLT 427, Land Acquisition Officer and Mandal Revenue Officer Vs. Narasaiah 2001 II AD (SC) 502, Vedachala Chettiar Vs. Ameena Bi Ammal AIR (31) 1944 Madras 121, Gobinda Vs. Chanan Singh AIR 1933 Lahore 378, and, Kadiya Umma Vs. Mayankutty AIR 1992 Kerala 261.

30. I am unable to agree. The appellant / defendant in its written statement having taken the plea of the sale deed being forged and fabricated and the Supreme Court having remanded the appeal for hearing only to adjudicate about the proof of the sale deed, the factum of original sale deed being not before the Court and being not with the respondents / plaintiffs also, assumes significance.

31. It is deemed appropriate to enquire into this aspect.

32. The Sub-Registrar-II, Kashmere Gate, Delhi, by whom the certified copy Ex.PW1/1 has been issued on 5th June, 1992, is directed to, on the next date of hearing, produce before this Court the record relating to registration of document No.1627, in

Additional Book No.1, Volume No.74 at pages 381 to 383 on 14 th June, 1957.

33. The appellant / defendant to depute an officer to collect the dasti summons for production of the document aforesaid from this Court and to ensure service and compliance therewith. If the record is not at the office of Sub-Registrar-II, Kashmere Gate, Delhi, the person in custody of the said record, wheresoever else it may be, is also directed to produce the same.

34. The counsel for the appellant / defendant is made personally responsible for compliance with this direction.

35. List on 1st August, 2018."

2. Today, Mr. Anoop Singh, Record Keeper, Sub-Registrar-II, Kashmere Gate, Delhi is present in the Court and has produced the record relating to registration of document 1627 and Additional Book No.1, Volume 74 at Pages 381 to 383 on 14th June, 1957 and the counsel for the appellant/defendant has handed over a certified copy of the said document and which is taken on record and on which, for the sake of identification, Exhibit A-1 is put in today's date.

3. The counsel for the appellant/defendant also handed over an English translation got done of the certified copy of the sale deed in Urdu language and which translation is also taken on record and on which, for the sake of identification, Exhibit A-2 is put in today's date.

4. The counsel for the appellant/defendant, on enquiry, whether the English translation of the sale deed got done by the appellant/defendant tallies with the translation filed by the respondent/plaintiff of the said sale deed, states that except for minor differences, the translation filed by the respondent/plaintiff is the same as the translation got done by the appellant/defendant.

5. I have next enquired from the counsel for the appellant/defendant, whether the appellant/defendant has got verified at the spot that the sale deed is of the subject property.

6. The counsel for the appellant/defendant states that on spot verification has been done and the sale deed aforesaid relates to the suit property.

7. I have already, in the order dated 4th July, 2018 reproduced here-in- above, recorded the state of oral evidence led in the appeal with respect to the sale deed. The argument of the appellant/defendant, which prevailed with the Hon'ble Supreme Court which remanded the matter with direction to adjudicate the appeal afresh, was that the sale deed had not been proved in accordance with law.

8. The First Appellate Court has in this regard relied upon on Section 90 of the Evidence Act, 1872 and having personally examined the record produced from the office of the Sub-Registrar, I am satisfied of the registration of the sale deed and the First Appellate Court has found to have correctly invoked Section 90 of the Evidence Act, 1872.

9. I may mention that mere possession/occupation of an immovable property, for howsoever long, does not divest the owner from the right to sue for recovery of possession thereof. Supreme Court, in Sant Lal Jain Vs. Avtar Singh (1985) 2 SCC 332 followed by this Court in Prabhu Dayal Vs. Roop Kumar AIR 2005 Del 144 (DB), held that mere possession of the property, for howsoever long, does not vest any title. The suit for recovery of possession, from which this appeal arises, was on the basis of title and the limitation therefor provided in Article 65 of the Schedule to the Limitation Act, of 12 years, commences from the date when possession of the defendant

becomes adverse to the plaintiff. The appellant/defendant, as has already held in order dated 4th July, 2018, being a state within the meaning of Article 12 of the Constitution of India, is not entitled to take the plea of possession adverse to the citizen of the state and it thus has to be held that the suit was not barred by time.

10. Else, the respondent/plaintiff has been found to be the owner of the property vide the sale deed aforesaid.

11. Thus, no substantial question of law arises for adjudication in this Second Appeal under Section 100 of the CPC, which is again dismissed.

12. The record of a Sub-Registrar requisitioned has been returned to Mr. Anoop Singh.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J AUGUST 01, 2018 'ak'