Delhi High Court
Ram Richpal Sharma (Sicne Deceased) Thr ... vs Vijay Kumar Bansal (Since Deceased) Thr ... on 26 May, 2025
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:26.05.2025
+ C.R.P. 91/2016
RAM RICHPAL SHARMA (SINCE DECEASED)
THR HIS LR ..... Petitioner
versus
VIJAY KUMAR BANSAL (SINCE DECEASED)
THR HIS LRS & ORS ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Ashok Gurnani and Mr. Abhishek
Singh, Advocates
For the Respondents : Mr. Rajiv Duggal and Mr. Bharat Kumar,
Advocates for R-1 and 2.
CORAM
HON'BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
1. The present petition is filed challenging the judgment dated
15.02.2016 (hereafter 'impugned judgment'), passed by the learned
Trial Court, in CS No. 104968/2015.
2. By the impugned judgment, the learned Trial Court had
dismissed the suit preferred by the petitioner (since deceased).
3. The brief facts of the case are as follows:
3.1. The subject suit was filed by the petitioner under Section 6 of
the Specific Relief Act, 1963 ('SRA') seeking possession and
damages as well as injunction in respect of land built on khasra no.
103, measuring 17 biswas about 900 Sq. Yds., Village Chandrawali
alias Shahdara, Delhi in the abadi of Opposite Bhairon Mandir, Ram
Nagar, Loni Road, Shahdara, Delhi (hereafter 'suit property').
3.2. It was the case of the petitioner that he was the absolute owner
of the suit property and had the actual physical possession of 7 biswas
since long before the year 1970 and of10 biswas since the year 1975.
It is claimed that the suit property comprises of four rooms and
boundary walls. It is alleged that Respondent Nos. 1 to 5 had never
been in possession of the suit property before 12.09.1996, and they
had no title, right or concern in the suit property.
3.3. The deceased plaintiff had allegedly rented out one small room
of the suit property at the rate of ₹15 per month to Mr. Kishan Lal,
who was looking after the entire suit property, and the petitioner used
to frequently visit and stay in the suit property. It is claimed that Mr.
Kishan Lal was doing cycle repair work outside and near the suit
property since January, 1970 till 04.09.1996.
3.4. It is claimed that the key and possession of the suit property had
been handed over to the petitioner on 04.09.1996 and Mr. Kishan Lal
had entrusted the wooden box which contained cycle repair tools and
cycle accessories to the petitioner, which was retained in the suit
property. Apart from the wooden box, another box was lying in the
suit property containing clothes and other goods of the petitioner.
Three charpais of the petitioner were also lying in the suit property.
After Mr. Kishan Lal surrendered possession of his rented portion of
the suit property, the petitioner started visiting the suit property more
frequently.
3.5. It is alleged that since the petitioner was 90 years old and blind,
Defendant Nos. 1 to 5/Respondent Nos. 1 to 5 conspired with local
police and employees of Defendant No.6/ Respondent No. 6 to
criminally trespass in the suit property on 12.09.1996 at 4:00 PM. The
petitioner visited the suit property along with his son Rajbir and found
Respondent Nos. 1 to 5 carrying out construction work inside the suit
property.
3.6. On being asked to leave the suit property by the petitioner, the
said persons and their gangsters allegedly caught hold of the petitioner
and his son using dandas and iron rods. In the presence of the
petitioner and his son, the charpais, wooden box of Mr. Kishan Lal
and petitioner's box were removed. The incident was allegedly
witnessed by Mr. Kishan Lal as well.
3.7. It is alleged that the petitioner approached the police station,
however, the duty officer refused to lodge a report. No action was
taken by the police officers or Municipal Corporation of Delhi in
relation to the incident. Pursuant to same, the subject suit was filed.
3.8. Respondent No.1, in his written statement, denied the assertions
of the petitioners and contested that the suit was barred under Section
184 of the Delhi Land Reforms Act, 1954. It was further contended
that the suit was not properly valued and it was bad in law for mis-
joinder and non-joinder of necessary parties. It was the case of
Respondent No.1 that a portion of the suit property had been
purchased by him and his wife from one Balbir Singh, who was the
owner of the property, by way of executed documents. It was
contended that Respondent No.1 had been in possession of a part of
the suit property for about five years. It was contended that
Respondent No.1 had been in possession of a portion of the suit
property as a tenant. In the month of February 1996, Respondent No.1
started a new business in the premises and as such, he requested
Mr.Balbir Singh to sell a part of the suit property to him. Mr. Balbir
Singh was also running his workshop in the suit property and the
house tax of the property had been assessed in the name of Mr. Balbir
Singh as well. It was denied that Kishan Lal was ever in possession of
the property.
3.9. Respondent No.6/ Municipal Corporation of Delhi, in its written
statement, stated that appropriate action had been taken in respect to
the illegal construction of the property and the demolition orders had
been duly passed and served on the owner/ builder Respondent No.1.
3.10. The plaintiff died during the pendency of the suit and his legal
representatives were brought on record.
3.11. By the impugned judgment, after examining the evidence and
the material on record, the learned Trial Court opined that the
petitioner had failed to discharge the burden that he had been
dispossessed from the suit property or that he was in actual and
continuous possession of the same. The learned Trial Court relied
upon the report of the learned Local Commissioner and found that the
same revealed that there was old construction present on the suit
property which was inconsistent with the description of the petitioner.
It was further observed that the area of suit property as stipulated in
the report was larger than the projected area in the plaint.
3.12. Aggrieved by the same, the petitioner filed this petition.
4. The learned counsel for the petitioners submitted that the
impugned judgment is bad in law. He submitted that the petitioner had
purchased the suit property from Mr. Balbir Singh and Dr. Pratap
Chand by way of agreements (Exhibit PW1/2 and Exhibit PW1/3). He
submitted that the said agreements are sufficient in the eye of law to
show the possession of the deceased petitioner with respect to the suit
property and the suit ought to have been decreed in favour of the
deceased petitioner.
5. He submitted that the learned Trial Court did not appreciate the
affidavit filed by Mr. Rajbir Singh (the son of the petitioner) wherein
he reaffirmed the case of the petitioner. He submitted that no cross
examination was done of Mr. Rajbir Singh by Respondent Nos. 1 to 5
which means that the statement stands proven. He submitted that the
statement of Mr. Rajbir Singh ought to be accepted in such
circumstances.
6. He further submitted that the documents and evidence relied
upon by the defence, including the documents executed by Mr. Balbir
Singh in favour of Respondent No.1, relate to the year 1996, which is
very near to the date of alleged dispossession of the deceased
petitioner, that is, 12.09.1996. He submitted that the same casts a
doubt on the case of the defendant respondents.
7. He submitted that even as per the written statement of
Respondent No.1, he had approached Mr. Balbir Singh for buying a
portion of the suit property in February, 1996, which is close to the
date of alleged dispossession. He submitted that no document was put
forth by Respondent No.1 to show that he had been possession of the
suit property for five years prior to the year 1996.
8. He submitted that the report of Local Commissioner does not
throw any light on the dispossession of the petitioner as the inspection
was carried out much after the incident.
9. Per contra, the learned counsel for Respondent Nos. 1 and 2
submitted that the scope of revision petition is limited and the Court
cannot venture into reappreciating evidence.
10. He submitted that the scope of the present proceedings is
limited in nature and this is not the appropriate forum for the
petitioners to agitate their arguments in relation to title, if any.
11. He further submitted that the statement of Mr. Rajbir Singh as
well as the other evidence put forth by the parties was aptly
scrutinized by the learned Trial Court before dismissing the suit.
12. He further submitted that the report of the Local Commissioner
was never objected by the petitioner under Rule 10 of Order XXVI of
the CPC.
ANALYSIS
13. At the outset, it is relevant to note that the petitioner has
challenged the impugned judgment before this Court under Section
115 of the Code of Civil Procedure, 1908. The scope of revision
proceedings is limited to correction of errors of jurisdiction by
subordinate Courts and cannot be misconstrued to be akin to an
appeal.
14. The Hon'ble Apex Court, in the case of Keshardeo Chamria v.
Radha Kissen Chamria: (1952) 2 SCC 329, had discussed a catena of
judgments in relation to the scope under Section 115 of the CPC. The
relevant portion of the aforesaid judgment is as under:
"21. A large number of cases have been collected in the fourth
edition of Chaitaley & Rao's Code of Civil Procedure (Vol. I),
which only serve to show that the High Courts have not always
appreciated the limits of the jurisdiction conferred by this section.
In Mohunt Bhagwan Ramanuj Das v. Khetter Moni
Dassi [Mohunt Bhagwan Ramanuj Das v. Khetter Moni Dassi,
(1896-97) 1 CWN 617 : 1896 SCC OnLine Cal 11] , the High
Court of Calcutta expressed the opinion that sub-clause (c) of
Section 115 of the Civil Procedure Code, was intended to authorise
the High Courts to interfere and correct gross and palpable errors
of subordinate courts, so as to prevent grave injustice in non-
appealable cases. This decision was, however, dissented from by
the same High Court in Enat Mondul v. Baloram Dey [Enat
Mondul v. Baloram Dey, (1899) 3 CWN 581] , but was cited with
approval by Lort-Williams, J. in Gulabchand
Bangur v. Kabiruddin Ahmed [Gulabchand Bangur v. Kabiruddin
Ahmed, ILR (1931) 58 Cal 111 : 1930 SCC OnLine Cal 52] . In
these circumstances it is worthwhile recalling again to mind the
decisions of the Privy Council on this subject and the limits stated
therein for the exercise of jurisdiction conferred by this section
on the High Courts.
22. As long ago as 1894, in Amir Hassan Khan v. Sheo Baksh
Singh [Amir Hassan Khan v. Sheo Baksh Singh, (1883-84) 11 IA
237 : 1884 SCC OnLine PC 13] , the Privy Council made the
following observations on Section 622 of the former Code of Civil
Procedure, which was replaced by Section 115 of the Code of 1908
: (IA p. 239)
"... The question then is, did the Judges of the lower
courts in this case, in the exercise of their jurisdiction, act
illegally or with material irregularity. It appears that they
had perfect jurisdiction to decide the question which was
before them, and they did decide it. Whether they decided
it rightly or wrongly, they had jurisdiction to decide the
case; and even if they decided wrongly, they did not
exercise their jurisdiction illegally or with material
irregularity."
23. In 1917 again in Balakrishna Udayar v. Vasudeva
Aiyar [Balakrishna Udayar v. Vasudeva Aiyar, (1916-17) 44 IA
261 : 1917 SCC OnLine PC 32] , the Board observed : (IA p. 267)
"It will be observed that the section applies to jurisdiction
alone, the irregular exercise or non-exercise of it, or the
illegal assumption of it. The section is not directed against
conclusions of law or fact in which the question of
jurisdiction is not involved."
24. In 1949 in N.S. Venkatagiri Ayyangar v. Hindu Religious
Endowments Board [N.S. Venkatagiri Ayyangar v. Hindu
Religious Endowments Board, (1948-49) 76 IA 67 : 1949 SCC
OnLine PC 8] , the Privy Council again examined the scope of
Section 115 and observed that they could see no justification for
the view that the section was intended to authorise the High Court
to interfere and correct gross and palpable errors of subordinate
courts so as to prevent grave injustice in non-appealable cases
and that it would be difficult to formulate any standard by which
the degree of error of subordinate courts could be measured. It
was said : (IA p. 73)
"... Section 115 applies only to cases in which no
appeal lies, and, where the legislature has provided no
right of appeal, the manifest intention is that the order of
the trial court, right or wrong, shall be final. The section
empowers the High Court to satisfy itself on three matters,
(a) that the order of the subordinate court is within its
jurisdiction; (b) that the case is one in which the court
ought to exercise jurisdiction; and (c) that in exercising
jurisdiction the court has not acted illegally, that is, in
breach of some provision of law, or with material
irregularity, that is, by committing some error of
procedure in the course of the trial which is material in
that it may have affected the ultimate decision. If the High
Court is satisfied on those three matters, it has no power
to interfere because it differs, however profoundly, from
the conclusions of the subordinate court on questions of
fact or law."
25. Later in the same year in Joy Chand Lal Babu v. Kamalaksha
Chaudhury [Joy Chand Lal Babu v. Kamalaksha Chaudhury,
(1948-49) 76 IA 131 : 1949 SCC OnLine PC 17] , their Lordships
had again adverted to this matter and reiterated what they had said
in their earlier decision. They pointed out : (IA p. 142)
"...There have been a very large number of decisions
of Indian High Courts on Section 115 to many of which
their Lordships have been referred. Some of such
decisions prompt the observation that High Courts have
not always appreciated that although error in a decision
of a subordinate court does not by itself involve that the
subordinate court has acted illegally or with material
irregularity so as to justify interference in revision under
sub-section (c), nevertheless, if the erroneous decision
results in the subordinate court exercising a jurisdiction
not vested in it by law, or failing to exercise a jurisdiction
so vested, a case for revision arises under sub-section (a)
or sub-section (b) and sub-section (c) can be ignored."
26. Reference may also be made to the observations of Bose, J. in
his order of reference in Narayan Sonaji Sagne v. Sheshrao
Vithoba [Narayan Sonaji Sagne v. Sheshrao Vithoba, AIR 1948
Nag 258 : 1947 SCC OnLine MP 21] wherein it was said that the
words "illegally" and "material irregularity" do not cover either
errors of fact or law. They do not refer to the decision arrived at
but to the manner in which it is reached. The errors contemplated
relate to material defects of procedure and not to errors of either
law or fact after the formalities which the law prescribes have been
complied with."
(emphasis supplied)
15. In the case of Varadarajan v. Kanakavalli: (2020) 11 SCC
598, the Hon'ble Apex Court highlighted that merely because the
High Court has a different view on the same facts, the same is not
sufficient to interfere with the impugned order. The relevant portion is
reproduced hereunder:
"15...The High Court in exercise of revision jurisdiction has
interfered with the order passed by the executing court as if it was
acting as the first court of appeal. An order passed by a
subordinate court can be interfered with only if it exercises its
jurisdiction, not vested in it by law or has failed to exercise its
jurisdiction so vested or has acted in exercise of jurisdiction
illegally or with material irregularity. The mere fact that the High
Court had a different view on the same facts would not confer
jurisdiction to interfere with an order passed by the executing
court. Consequently, the order passed by the High Court is set
aside and that of the executing court is restored. The appeal is
allowed."
(emphasis supplied)
16. The suit in the present case was filed by the petitioners under
Section 6 of the SRA. Section 6 of SRA reads as under:
"6. Suit by person dispossessed of immovable property.--
(1) If any person is dispossessed without his consent of immovable
property otherwise than in due course of law, he or any person
through whom he has been in possession or any person claiming
through him may, by suit, recover possession thereof,
notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought--
(a) after the expiry of six months from the date of
dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit
instituted under this section, nor shall any review of any such order
or decree be allowed.
(4) Nothing in this section shall bar any person from suit to
establish his title to such property and to recover possession
thereof."
17. In the case of Sanjay Kumar Pandey v. Gulbahar
Sheikh:(2004) 4 SCC 664, the Hon'ble Apex Court had held as under:
"4. A suit under Section 6 of the Act is often called a summary suit
inasmuch as the enquiry in the suit under Section 6 is confined to
finding out the possession and dispossession within a period of
six months from the date of the institution of the suit ignoring the
question of title. Sub-section (3) of Section 6 provides that no
appeal shall lie from any order or decree passed in any suit
instituted under this section. No review of any such order or decree
is permitted. The remedy of a person unsuccessful in a suit under
Section 6 of the Act is to file a regular suit establishing his title to
the suit property and in the event of his succeeding he will be
entitled to recover possession of the property notwithstanding the
adverse decision under Section 6 of the Act. Thus, as against a
decision under Section 6 of the Act, the remedy of unsuccessful
party is to file a suit based on title. The remedy of filing a revision
is available but that is only by way of an exception; for the High
Court would not interfere with a decree or order under Section 6
of the Act except on a case for interference being made out within
the well-settled parameters of the exercise of revisional
jurisdiction under Section 115 of the Code."
(emphasis supplied)
18. The Hon'ble Apex Court, in the case of Mohd. Mehtab Khan v.
Khushnuma Ibrahim Khan:(2013) 9 SCC 221,held as under:
"16. A proceeding under Section 6 of the Specific Relief Act, 1963
is intended to be a summary proceeding the object of which is to
afford an immediate remedy to an aggrieved party to reclaim
possession of which he may have been unjustly denied by an illegal
act of dispossession. Questions of title or better rights of
possession does not arise for adjudication in a suit under Section
6 where the only issue required to be decided is as to whether the
plaintiff was in possession at any time six months' prior to the
date of filing of the suit. The legislative concern underlying
Section 6 of the SR Act is to provide a quick remedy in cases of
illegal dispossession so as to discourage litigants from seeking
remedies outside the arena of law. The same is evident from the
provisions of Section 6(3) which bars the remedy of an appeal or
even a review against a decree passed in such a suit."
(emphasis supplied)
19. Thus, to claim possession under Section 6 of the SRA, the
plaintiff is required to establish that he has been dispossessed from the
suit property without his consent, otherwise than in due course of law.
The limitation for preferring such a claim is six months from the date
of dispossession and the question of title or better right to possession
is immaterial in such proceedings.
20. In line with the same, the learned Trial Court framed seven
issues. Some of the issues were framed in relation to valuation and
maintainability of the suit on the basis of arguments raised by the
respondents. The said issues were decided in favour of the petitioner.
This Court is primarily concerned with the findings in relation to the
issue of whether the petitioner was entitled to a decree of possession.
21. The legal representatives of the petitioner are essentially
aggrieved that the learned Trial Court did not find the petitioner to be
in possession of the suit property, without appreciating that the
petitioner had purchased the property by way of agreements (Exhibit
PW1/2 and Exhibit PW1/3). Furthermore, it is their case that the
affidavit filed by Mr. Rajbir Singh (PW1) was not fully appreciated,
even though he was not cross-examined by Respondent Nos. 1 to 5. It
is further submitted that the documents relied upon by the defence
pertain to the year 1996, and doesn't show their possession of the suit
property prior to date of dispossession. It is also stated that the Local
Commissioner Report does not reflect the dispossession of the
petitioner as the inspection was carried out after the incident.
22. It is pertinent to note that the learned Trial Court succinctly took
note of the evidence adduced by both parties before passing a well-
reasoned order, categorically dealing with all the contentions of the
plaintiff.
23. The onus to prove previous physical possession of the suit
property and consequent dispossession by Respondent Nos. 1 to 5 was
on the petitioner/ plaintiff.
24. It is argued that the learned Trial Court has not given due
deference to the testimony of PW1. It is argued that since Respondent
Nos. 1 to 5 did not cross-examine PW1, the statement of PW1 stands
proven. The said argument is unmerited. The learned Trial Court has
rightly noted that while the testimony of PW1 remained unchallenged,
however, it does not raise an inference of admission on part of
Respondent Nos. 1 to 5, and the entire evidence was to be judicially
scrutinized and tested on the touchstone of preponderance of
probability.
25. The learned Trial Court meticulously examined each of the
thirteen documents placed by PW1 and gave categorical findings in
relation to the same in paragraph 14 of the impugned order. It is
pertinent to note that no specific argument in relation to any of these
documents has been addressed on behalf of the petitioner, except
PW1/2 and PW1/3. In relation to the said documents, it is noted by the
learned Trial Court that the documents were not proved as the
attesting witnesses and executant had not been examined. It was
further noted that merely because PW1 stated that the documents were
executed in his presence is of no consequence and the documents were
required to be compulsorily registered under Section 17 of the
Registration Act, 1908. It was also noted that as per the documents,
the petitioner got possession of 13 biswa in the year 1975, which is in
contrast to averments in the plaint. This Court finds no infirmity in the
observations of the learned Trial Court. Considering that the
documents were not proved, the same cannot be read against the
contesting respondents. Moreover, as also appreciated by the learned
Trial Court, the documents pertain to the year 1975 and fall short in
proving that the petitioner continued to remain in possession over a
court of more than two decades till the year 1996.
26. The learned Trial Court was further weighed by the absence of
any bills having been annexed with the plaint. It was rightly noted by
the learned Trial Court that if any person was to reside in the premises,
they would use basic amenities, despite which, no bills had been
placed on record by the petitioner. No reason for the same has been
furnished before this Court to contest the observation of the learned
Trial Court that the suit did not disclose any facts in relation to the
house tax or permission for construction of four rooms on the suit
property.
27. It is pleaded in the plaint that a portion of the suit property had
been rented out to Mr. Kishan Lal. A Surrender Deed (Ex. PW1/7)
was placed on record in support of the petitioner's case to prove
tenancy of Mr. Kishan Lal. It was noted that it appeared as if the
Surrender Deed had been prepared to create evidence for the matter. In
this relation, the learned Trial Court observed as under:
"47. The document i.e Ikrarnama / Surrender Deed Ex PWl/7
executed between tenant Sh Kishan Lai and plaintiff, appears to
have been prepared to create evidence in plaintiff's favour. In
normal circumstances, a tenant would hand over the keys of
property to his landlord and at best, would precautionarily obtain
a no dues certificate from his landlord so as to avoid any future
litigation for recovery of claim/ damages. There is no reason for a
tenant to execute a surrender deed and affidavit in favour of his
landlord, except in cases where there was some dispute/ litigation
already pending between landlord- tenant.
48. A perusal of surrender deed reveals that the tenant has given a
detailed description of the suit property specifying even its
directions and has mentioned that Patwari had informed him that
the area of suit property is 17 biswa which is equivalent to 900 sq
yards. Usually, in a surrender deed of land lord -tenant, these
facts are not incorporated. The usual clauses in Surrender Deed
of a tenant are that no electricity and water dues remain at the
suit property, return of security amount if any deposited, the suit
property has been returned in habitable condition, no liability of
tenant w.r.t future claims, obligations etc. These usual clauses
are missing in the Surrender Deed Ex P1/7.
49. Sh Kishah Lai did not step into the witness box to prove the
Surrender Deed Ex PW1/7. As per version of plaintiff, prior to his
forcible dispossession, lastly his tenant Sh Kishan Lai, was in
physical possession the suit property and he had witnessed the
forcible dispossession of plaintiff from the suit property by
defendants. The testimony of independent witness / tenant Sh
Kishan Lai would have lend credence to plaintiffs version and his
non examination has proved fatal.
xxx
51. Admittedly, the plaintiff never lived or actually possessed the
suit property. The physical possession was with tenant Sh Kishan
Lai who has not been produced as a witness in the Court. No
document on record proves possession of the plaintiff at any time
six months prior to date of filing of instant suit. Given these
circumstances, the plaintiff can not be said to be in previous
possession of the suit property so as to be entitled to protection of
Section 6 of Specific Relief Act."
(emphasis supplied)
28. The learned Trial Court adequately appreciated that the
Surrender Deed, specifying the particulars of the suit property, was
unusual and the usual clauses about there being no water and
electricity dues were missing. It is pertinent to note that in the plaint,
apart from usual visits by the petitioner, the tenancy and presence of
Mr. Kishan Lal has been pleaded as one of the primary factors to
champion the continuous previous possession as well as dispossession
of the petitioner. Despite this, Mr. Kishan Lal has not been examined
by the petitioner. The learned Trial Court has rightly noted that Mr.
Kishan Lal's examination would have lent credence to the case of the
petitioner. In absence thereof, it has been rightly opined that the
petitioner cannot be said to have been in previous possession of the
suit property.
29. It is also important to take note of the evidence of PW4
(property dealer), who had tendered an affidavit deposing that he had
seen the possession of the petitioner for the last more than 35 years
and tenancy of Mr. Kishan. The learned Trial Court had rightly found
that the testimony of PW4 was of no assistance to the petitioner as
PW4 did not stand the test of cross-examination. During cross
examination, PW4 had stated that he did not know whether any person
by the name of Mr. Kishan Lal was residing in the suit property and he
never used to go to the suit property. PW4 stated that he only used to
pass by the suit property and he further denied having given any
statement to the police in relation to the incident on 12.09.1996. It was
rightly opined by the learned Trial Court that the evidence of PW4
does not show that he had any personal knowledge of the possession
of the petitioner.
30. It is fervently contended on behalf of the petitioner that the
documents relied upon by the contesting defendants relate to the year
1996 and are close to the date of alleged dispossession, and they
cannot be relied upon. This Court finds no merit in the said argument.
31. In relation to the defence of Respondent No.1 that he was
running a business in a portion of the suit property, the learned Trial
Court had rightly found that the same was supported by the
Registration Certificate (Ex. DW5/A). The learned Trial Court had
also taken note of the Notice dated 27.03.1996 issued by the House
Tax Department to Mr. Balbir Singh and evidence of DW4, DW5 and
DW6. The relevant portion of the impugned order is as under:
"52. On the contrary, the plea of defendant no 1 running a business
of Balaji Traders in a portion of suit property, prior to date of
dispossession of plaintiff, is duly supported by Registration
Certificate proved by DW5. DW5 , in his cross examination,
deposed that on the certificate, address of firm was changed to that
of suit property on request of proprietor and said request for
change of address was made on 16.07.96. The address of suit
property was changed by defendant no 1 in the registration
certificate Ex DW5/A on 16.07.96 which is prior to the date of
dispossession of plaintiff i.e 12.09.96.
53. Another document proved on record by the defendants is
Notice dated 27/03/1996 Ex DW4/A issued by House Tax
Department to Sh Balbir Singh. DW 4/ LDC in House Tax
Department deposed, in cross examination, that a survey was
conducted on 14/03/96 and thereafter, notice was issued. He also
testified that as per record, house tax is deposited in the name of Sh
Balbir Singh. Though house tax is being deposited in the name of
predecessor in interest, Sh Balbir Singh, the fact remains that the
document has been produced from the custody of defendant no 1.
Be that as it may, this document Ex DW4/A negates plaintiff
version of being in continuous possession of suit property since
1975 till 12.09.96.
54. Moreover, defendant no 6/EDMC has stated, in its written
statement, that unauthorized construction has been booked vide file
no 57/B/UC/SH(N)/96 dated 31.07.1996 and notice has been
served upon defendant no 1. PW1 deposed that defendants made
new construction after 12.09.1996 and show cause notice was
issued on 4.10.96. It is difficult to discern that a statutory body
EDMC would book unauthorized construction, in anticipation, on
31.07.96 when as per plaintiff, the defendants started raising
construction only after 12.09.96. This proves that the defendant no
1 had started raising construction prior to alleged date of
dispossession of plaintiff which is 12.09.96, consequently, the
plaintiff can not be presumed to be in possession till 12.09.96."
(emphasis supplied)
32. The said documents cannot be ignored merely because it
pertains to the year 1996. The plaintiff categorically pleaded that the
dispossession took place on 12.09.1996 when the articles and boxes
were removed from the suit property. The registration certificate as
well as contention of EDMC make it clear that the request for change
of address and unauthorized construction were being carried out prior
to the date of the alleged dispossession. Even so, it is to be noted that
DW4 (LDC in House tax Department) has categorically deposed that
the notice was served to Mr. Balbir Singh as the house tax was being
deposited in his name. No attempt has been made to justify the said
aspect. As also noted above, the plaint is silent on the payment of bills,
including house tax.
33. Even otherwise, to succeed in the suit, the petitioner had to
establish his own case on merits by proving prior possession and
dispossession. The documents relied upon by the defence pertaining to
the year 1996 does not assist the petitioner in proving his own prior
possession. It was rightly noted that the failure of the contesting
defendants to prove their settled possession over the suit property does
not assist the petitioner's case.
34. During the course of trial, the learned Local Commissioner was
appointed to ascertain the extent of construction on the suit property as
well as the portion in possession of Respondent Nos. 1 to 5. In the
report, the learned Local Commissioner divided the suit property in
three segments, that is, A, B and C. Segment A was further divided
into two sub segments- A1 and A2. The learned Trial Court had
succinctly summarized the observations in the report as under:
35. It is argued that the report of the Local Commissioner pertains
to assessment carried out after the alleged dispossession and the same
can thus not reflect the dispossession. It is pertinent to note that no
objection was raised against the report by the petitioner before the
learned Trial Court and no application was filed to summon the local
commissioner to examine him under Order XXVI Rule 10 of the CPC
either, due to which, the learned Trial Court deemed it fit to take the
same into consideration.
36. Noting that the report of the learned Local Commissioner
remained undisputed, it was found that the suit was also bad for non-
joinder of necessary parties as Mr. Ambey Prasad as well as Mr.
Daryao Singh Chaudhary, who were found to be factually in
possession of a portion of the suit property, had not been joined to the
proceedings. It was noted that the question of possession is to be
primarily determined in a suit under Section 6 of SRA and the non-
joinder of the necessary parties, who were found to be in possession of
portions of the suit property, is fatal to the suit in terms of Order I
Rule 9 of the CPC.
37. It was also noted that the area of the suit property as per the
report was larger than what had been pleaded by the petitioner, even if
Segment C was excluded from consideration. The learned Trial Court
was heavily weighed by the observation of the Local Commissioner
that there was extensive construction on the suit property. It was
rightly observed that it is improbable that such a construction could
have been erected in a short period of time. It was also noted that there
was a clear finding in the report regarding construction in one segment
of the property having been made in the year 1980, and then
construction of 5 rooms and four shops being quite old. Even before
this Court, no explanation has been forthcoming regarding the old
constructions found in certain portions of the property.
38. Needless to say, even though the deceased plaintiff has not
succeeded in the present claim, his legal representatives are not
precluded from seeking their remedies in a substantive suit based on
title.
39. In view of the aforesaid discussion, this Court finds no material
irregularity or error in exercise of jurisdiction by the learned Trial
Court in the impugned judgment so as to warrant interference of this
Court.
40. The present petition is dismissed in the aforesaid terms. Pending
applications also stand disposed of.
AMIT MAHAJAN, J
MAY 26, 2025
