IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SUIT FOR POSSESSION JUDGMENT RESERVED ON : OCTOBER 16, 2008

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SUIT FOR POSSESSION JUDGMENT RESERVED ON : OCTOBER 16, 2008 JUDGMENT DELIVERED ON : NOVEMBER 26, 2008 RFA 344/2001 RAM PARSHAD... Through: Appellant Mr.Ujjal Singh with Mr. J.P. Singh, Advocate MADAN LAL and ANR.... CORAM: VERSUS Through: Respondents Mr.J.P. Mishra, Advocate HON'BLE MR.JUSTICE PRADEEP NANDRAJOG HON'BLE MR.JUSTICE J.R. MIDHA PRADEEP NANDRAJOG, J. 1. Appellant, as plaintiff, has been unsuccessful in obtaining a decree for possession of the disputed premises being 100 sq. yards of land comprised in Khasra Nos. 142 and 143, Village Maujpur, consisting of a construction on the ground floor and the first floor thereof as also recovery of damages against the respondents, who, needless to state were the defendants in the suit. 2. Claim of the appellant in the plaint was that the suit land given Municipal No.233, Krishna Gali No.7, Maujpur, Shahdara being on 100 sq. yards of land comprised in Khasra Nos.142 and 143 of Village Maujpur was purchased by him under an agreement to sell, Ex. PW-1/4 executed in his favour by Kartar Singh on who had also executed a receipt, Ex.PW-1/3, in his favour when he received Rs.25,000/- from him and had also executed a power of attorney of even date, Ex.PW-1/2, empowering him to deal with the property and that at that time the construction consisting on the land was one shop and a hand pump. He alleged that the suit property was delineated as per plan, Ex.PW- 1/1, and that after acquiring the property he raised further constructions thereon by constructing two rooms on the ground floor and one room with bath and toilet on the first floor. He stated that for some time he conducted business of a sweet meat shop but closed the same and locked the property in the month of April 1994 and that the

2 defendants illegally and forcibly occupied the suit property on Alleging that he served a notice dated , Ex.PW- 1/6, posted vide receipts Ex.PW-1/7 and PW- 1/8 under registered post, as also under certificate of posting vide certificate, Ex.PW-1/9, calling upon the respondents to hand over possession; stating that none was handed over, the suit was filed. 3. The suit was resisted by respondent No.1, pleading that the appellant was his uncle and that he had full faith in the appellant and being desirous of purchasing a house he asked the appellant to find a suitable property and purchase the same for him and that the entire sale consideration of Rs.25,000/- was paid by him to the appellant in January 1989 for payment to the seller when the suit property was purchased from Kartar Singh. It was pleaded that being close relations, respondent No.1 never bothered to check on the title documents and that since January 1989 was in possession of the property and that in April 1993 he constructed two further rooms on the ground floor, a staircase leading up to the first floor as also a room on the first floor. It was pleaded that respondent No.2 was occupying the room on the first floor. 4. Respondent No.2 impleaded as defendant No.2 filed a written statement affirming that he was in possession of the room on the first floor. 5. Needless to state, on the pleadings of the parties, the material issue which arose for consideration was, whether the plaintiff was the owner of the suit property and whether the defendants took forcible possession thereof on as pleaded in the plaint. The issue of damages was a consequential issue and required to be decided if afore noted issue was held in favour of the appellant. 6. Appellant examined himself as PW-1 and reiterated the facts narrated in the plaint. Site Plan, Ex.PW-1/1, a receipt of Rs.25,000/- dated , Ex.PW-1/3, agreement to sell dated , Ex.P/W-1/4, power of attorney dated , Ex.PW-1/5, the legal notice dated , Ex.PW-1/6 and the postal receipts Ex.PW- 1/7 to PW-1/9 were referred to by him in his testimony and were assigned the exhibit marks as afore noted. Appellant also deposed of having executed a general power of attorney on in favour of one Saraswati Devi by him which was proved as Ex.PW-1/5. The same empowered Saraswati Devi to deal with the subject property i.e. 233, Krishna Gali No.7, Maujpur, Shahdara, Delhi. It would not be out of place to further record that the appellant led no evidence to show his funds where from Rs.25,000/- flowed to the coffers of the seller Kartar Singh. 7. PW-2, R.S. Yadav, a draftsman, deposed that he prepared the site plan Ex.PW- 1/1. 8. Satish Kumar, PW-3, deposed in support of the appellant and stated that when appellant got effected further construction from Amar Singh, he paid Rs.60,000/- to Amar Singh for effecting the same.

3 9. PW-4, Amar Singh, the stated builder of further constructions deposed that he raised further constructions at the asking of the appellant on the suit property, but failed to file any documentary evidence to show that he ever functioned as a contractor or that he received any money from the appellant or effected further constructions. 10. The respondent No.1 examined himself as his own witness and reiterated his defence. He cited and produced Jeet Pal, DW-2 and Pawan Kumar, DW-3 as witnesses who deposed that they were residents of the area and that since 1989 they had been seeing respondent No.1 in possession of the entire property and that the appellant was never in possession thereof nor did he carry on any business of selling sweet meats from the premises in question. 11. Defendant No.2, Bal Kishan examined himself as DW-2/1 and also deposed that he was occupying the room on the first floor. He deposed that Mohan Lal, defendant No.1 raised further constructions on the property. 12. The defendants i.e. the respondents had urged before the learned Trial Judge that the documents filed by the appellant to show title i.e. the agreement to sell dated , Ex.PW-1/4; the stated General Power of Attorney, Ex.PW-1/2, executed by Kartar Singh in favour of the appellant being unregistered documents could not be looked into as a title document. The receipt Ex.PW-1/3 purportedly executed by Kartar Singh in favour of the appellants, though a registered document was urged as no proof of title as the same did not record the purpose for which the receipt was executed. 13. Notwithstanding that it has become a practice in Delhi to purchase properties under agreement to sell and registered power of attorney and that in unauthorized colonies in Delhi, the colony in which the suit property is situated being an unauthorized colony, no registered documents have ever been executed to convey title; and notwithstanding the suit being based on title, for unexplainable reasons, during final arguments learned counsel for the appellant changed track and urged before the learned Trial Judge that the suit for possession is based not on title but on prior possession and illegal dispossession of the appellant there from. 14. This is evident from para 18 of the impugned judgment, relevant part whereof reads as under:-.. During the course of arguments, Ld. counsel for the plaintiff conceded that his suit does not fall under Article 65 of the Limitation Act as his suit is not based on title. This submission of Ld. counsel for the plaintiff is contrary to the case of the plaintiff himself as stated in the plaint. From the perusal of the plaint, it is clear that plaintiff has come on the basis of title in respect of the property in suit against the defendants. However, since this admission was conceded by Ld. counsel for the plaintiff that his suit is not based on title, now it is to be seen if the plaintiff is entitled to possession of the property in suit based on previous possession and not on title, as per Article 64 of the Limitation Act. 15. Notwithstanding aforesaid concession made by the appellant before the learned Trial Judge, the learned Trial Judge has considered the evidence led by the parties and

4 has returned a finding against the appellant pertaining to title. A number of reasons which we have been able to cull out from the decision of the learned Trial Judge are as under:- (a) Appellant led no evidence save and except oral statements of being in possession of the property after its alleged purchase in January, The appellant could not sustain the plea with reference to any documentary evidence. The appellant failed to prove that he conducted business as a sweet meat seller from the premises. The conclusion drawn is that the plaintiff was never in possession of the property. (b) The appellant was not even aware of the extent of constructions on the property and in any case falsely deposed of having raised further constructions of two rooms on the ground floor and a room on the first floor in 1993, evidenced by the fact that the power of attorney, Ex.PW-1/5, stated to have been executed by the appellant in favour of Saraswati Devi recorded:- WHEREAS THE EXECUTANT IS THE GENERAL ATTORNEY OF POSSESSION LAND AREA MEASURING 10 SQ. YDS. OUT OF KHASRA NO.142 and 143, Bearing Plot No.233, Consisting of One Shop and One Hand Pump, SITUATED AT VILLAGE MOUJPUR IN THE ABADI OF KRISHNA GALI NO.7, ILIAQA SHAHDARA, DELHI, which is bounded as under:-.. (Note: Aforesaid is the exact quote from Ex.PW-1/5 and hence the grammatical errors) The conclusion drawn by the learned Trial Judge is that Ex.PW-1/5 shows that even in the month of March, 1995 the appellant described the suit property as consisting of only one room with a hand pump on the ground floor but the over whelming evidence, as indeed even pleaded in the plaint, was that by the year 1993 additional constructions had come up on the ground floor and the first floor. (c) That the notice Ex.PW-1/6 served upon the defendants i.e. the respondents was dated ; the alleged date of the trespass as pleaded in the plaint was ; view taken by the learned Trial Judge is that this is an un-natural conduct of an owner who is dispossessed from his property. It has been held that it was un-natural conduct to cause to be issued a legal notice after one year and four months of the alleged trespass. The learned Trial Judge has further found it strange that the appellant never approached the police authorities, which would be the normal conduct of the owner of a property who is illegally dispossessed there from, to go to the police authorities alleging trespass into his property and try to regain possession before the trespasser enters into settled possession. (d) From the fact that the appellant and respondent No.1 were uncle and nephew and that respondent No.1 successfully established being in possession of the property since its purchase in January 1989, learned Trial Judge has opined that this conduct leads to an inference that respondent No.1 had paid for the consideration. The reasoning of the learned Trial Judge, though not expressly so stated, appears to be that the normal conduct of the owner of a property is to take possession from the seller. (e) Lastly, the learned Trial Judge has picked on a suggestion given by the appellant to respondent No.1 during trial holding the same to be an admission of the appellant that respondent No.1 had paid the money when property was purchased from Kartar Singh. The suggestion has been inferred from an answer given by respondent No.1, during cross-examination, which reads as under:- It is correct that plaintiff has purchased the property in dispute from Kartar Singh for consideration of Rs.25,000/- which was paid by me and for me. 16. Needless to state the suit filed by the appellant was dismissed vide impugned judgment and decree dated

5 17. Contention urged by learned counsel for the appellant at the hearing of the appeal was that the counsel for the appellant made a wrong concession that the suit was based on prior possession i.e. possessory right and not on title. Counsel urged that since respondent No.1 admitted title being acquired from Kartar Singh and Ex.PW-1/2, Ex.PW-1/3 and Ex.PW-1/4 were the only documents evidencing Kartar Singh transferring title to the property the learned Trial Judge erred in holding that the appellant did not prove title to the suit property. Lastly, counsel urged that the so called admission, inferred from the suggestion given by the appellant to respondent No.1 during cross-examination was incorrect, being divorced from the totality of the suggestions given to respondent No.1 during cross-examination. 18. Indeed, the adverse inference drawn by the learned Trial Judge with reference to the suggestion given by the appellant to respondent No.1 during cross-examination of said respondent is incorrect for the reason it is impermissible to pick on part testimony of a witness and de-link the same from the general testimony and thereafter arrive at conclusions. Indeed, it appears that the respondent No.1 volunteered a statement to exceed the answer to the question posed which has resulted in an impression being created that the question was incorrectly framed. Thus, the last reasoning of the learned Trial Judge is indeed incorrect. 19. Ignoring the same, being the first appeal, we re-look into the evidence. Indeed, the appellant has led no evidence of being in possession of the property since its purchase. Save and except the self-serving statement by the appellant and his witnesses of being in possession of the suit property since its purchase on we find no evidence of possession. Further, admittedly, a common fact asserted by the litigating parties, at the time of its purchase on the property consisted of the land with only one room thereon and a hand pump. It was the common case of the parties that two rooms on the ground floor, a staircase leading from the ground floor to the first floor and a room on the first floor was constructed later on. The appellant claimed to have got constructed the same from the contractor, Amar Singh, examined as PW-4. The respondent No.1 claimed to have constructed the same from his own funds. That the appellant was alleging and attempting to prove incorrectly is evidenced from Ex.PW-1/5 executed by the appellant on , which as noted in para 14(b) above recorded that the subject property consists of only one shop and a hand pump. This probablizes the fact that as on the appellant was not even sure of the extent of construction on the land; which in turn probablizes that the appellant had no concern with the property. It is not out of context to note that the reasons recorded by the learned Trial Judge of a person being dispossessed of his property immediately rushing to the police or seeking recourse to a civil court being absent in the instant case is a good reason to disbelieve the appellant. Indeed, if the trespass took place on we find it strange conduct for the appellant to wake up after one year and four months to resort to an action coupled with the fact that the appellant never reported the trespass to the police. With respect to the plea of respondent No.1 that since appellant was his uncle he trusted the appellant to purchase a suitable property for him, for his residence. Indeed, in unauthorized colonies possession is virtual ownership because everybody is occupying property on so called title documents which the law of transfer of property does not recognize to be title documents. But, since, to be

6 meaningful, the rule of law must run close to the rule of life, ground realities are being accepted and civil disputes are being resolved applying the test of reasonable human conduct i.e. how would a reasonable human being, in an unauthorized colony, conducting his/her affairs. 20. We find no merit in the appeal which is dismissed but without any costs. Sd./- PRADEEP NANDRAJOG, J. Sd./- J.R. MIDHA, J. November 26, 2008