Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Judgment : 29 July, 2010
+ RSA No.74/2006
RAMESH MOHAN MITTAL ………..Appellant
Through: Mr.R.K.Shukla, Advocate.
Versus
SURESH KUMAR ARORA & ANR. ……….Respondents
Through: Mr.Girdhar Govind and Ms.Noorun
Nahar Firdoshi for R-1.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This second appeal has been directed against the impugned
judgment dated 29.9.2005 wherein the judgment and decree of
the Trial court dated 7.7.2004 had been confirmed. Vide
judgment dated 7.7.2004, the Trial Judge had dismissed the suit of
the appellant/plaintiff namely Ramesh Mohan Mittal which was a
suit for possession and mesne profits. The first Appellate Court
had endorsed this finding.
2. Present suit has been filed by the plaintiff seeking
possession of a plot of 1500 sq. yards land measuring 60’ x 225’
forming a part of Khasra No.35/1 situated in the revenue estate of
village Baprola. The Trial Judge on the pleadings of the parties
had framed four issues. Two witnesses on behalf of the plaintiff
and one witness on behalf of the defendant had been examined.
RSA No.74/2006 Page 1 of 7
While disposing of issue nos.2 and 3, the Court had held that the
identity of the suit property on which possession had been claimed
by the plaintiff has not been established by him. The layout plan
Ex.PX had mentioned the name of the colony as Nitin Enclave but
the site plan proved through the version of PW-1 Ex.PW.1/A did
not mention Nitin Enclave at all; it related to the revenue estate of
village Baprola. Sale deed Ex.PW-2/1 relied upon by the plaintiff
was also related to property situated in Village Baprola.
3. Further the version of PW-1, the draftsman, who had proved
Ex.PW-1/A was not relied upon as even as per his own admission
his knowledge of the case had been based upon instructions given
to him by the plaintiff; no other independent verification has been
done by him. Testimony of PW-2, the plaintiff himself was also
found to be suspect. Identity of the suit property i.e. the correct
description not having been established by the plaintiff suit was
dismissed.
4. On 29.5.2005, the first Appellate Court dismissed the
appeal. Relevant findings are as under:-
“The grudge of the appellant is that the defendant has tress-
passed into his land which was purchased by plaintiff/appellant
situated in the Revenue Estate of Village Baprola. The evidence
on the other hand is shaky inasmuch as there is no reference or
village Baprola in the lay out plan. The lay out plan was prepared
and copy of the same was given to the appellant by the colonizer
at the time of purchase of the suit land. Incidentally, the colony
lay out of which has been shown as Nitin Enclave, whereas the
appellant/plaintiff has no-where in the plaint uttered a word about
Nitin Enclave. As it was the responsibility of the plaintiff/appellant
to show that part piece of land which was purchased by him was
encroachment by the defendant and he is entitled to have it back
thus on this count the appellant/plaintiff has failed and could not
identify and connect the defendant with the alleged tress-pass in
his land. The counsel for the appellant has vehemently argued
that plaintiff/appellant is able to pin point the position through the
RSA No.74/2006 Page 2 of 7
testimony of Bhoop Singh PW1. However, in the cross
examination that said Bhoop Singh Sharma has not been able to
say that he was aware of Khasra number, location etc. He had
stated that it was plaintiff/appellant who informed him about the
details and he had not confirmed it from any other source, nor
checked it from the Revenue records etc. Therefore, his
knowledge is based upon the information provided to him by the
plaintiff/appellant. As such his testimony is of no consequence
rather the testimony of the plaintiff/appellant Ramesh Mohan
Mittal becomes vital. Here, the plaintiff/appellant has faulted on
many occasions. His testimony has collapsed during the cross
examination for he has stated that the land was purchased by him
through Colonizer but did not verify the ownership of the land
from the Revenue records. He has categorically stated that he is
not aware of the fact as to whether the vendor is the owner of the
suit property or not. He has admitted this fact that in the lay out
plan there is not mention of village Baprola. Again, he has also
fumbled on the point as to how he came to know about the
encroachment by the defendant and he had no answer cogent
enough as to why no one visited the suit land for such a long time
when he has three sons and all are residing in Delhi. The land
purchased was an agricultural piece of land. In these
circumstances, the plaintiff/appellant is under obligation to verify
the status of the land through Revenue record or from other
sources.”
5. Before this Court, it has been urged that both the Courts
below had dismissed the suit of the plaintiff summarily without
considering the fact that it was admitted by the defendant himself
that the part of the suit property i.e.500 sq. yards is situated in
Khasra no.35/1 at village Baprola. Attention has been drawn to
the application filed by the defendant seeking demarcation of the
land through Tehsildar (page 68 of the paper book). In paras 2
and 5 of the said application, it has been averred as follows:
“2. That the applicant/defendant filed a detailed written statement
wherein he stated that he had never been in possession of any plot
measuring 1500 sq. yards (one bigha and 10 biswas) forming part
of Khasra no.35/1 situated in the Revenue Estate of Baprola, Delhi-
41 and also gave an undertaking before this Hon’ble Court that he
undertakes not to part with possession of any land measuring
RSA No.74/2006 Page 3 of 7
1500 sq. yds. forming part of Khasra no.35/1 situated in the
Revenue Estate of Baprola.
5. That the site plan as supplied by the plaintiff with the plaint
stating his plot in Vill. Baprola out of Khasra No.35/1 resembles
with the plot of the applicant/defendant which was situated in the
Vill.Tilangpur Kotla and which was out of Khasra no.7/21/1 and
7/21/2.”
Attention has been drawn to another application filed by the
subsequent transferee of defendant no.1 seeking a prayer for his
transposition under Order 1 Rule 10 of the CPC (page 76 of the
paper book). Para 6 of the application inter alia reads as follows:
“That after the aforesaid sale, the applicant remains the owner of
the land measuring 500 sq. yards comprising of Khasra no.35/1,
situated at Village Baprola (Bapdola), Delhi and his interest is
involved in the present suit as per the information received by the
applicant from the defendant no.1 Shri Suresh Kumar Arora, on
telephone yesterday. Hence the applicant wants to participate in
the present proceedings to watch and safeguard his interest over
the aforesaid land measuring 500 sq. yards, as stated above.”
It is submitted that these contentions of the defendant show
that the defendant through his transfree had admitted that 500 sq.
yards of the suit property is situated in Khasra No.35/1 and as
such the finding of the Courts below that the suit property had not
been properly identified is a perversity which has raised a
substantial question of law in the present proceedings.
6. Learned counsel for the appellant has placed reliance upon
AIR 1970 Kerala 310 Thiruvanchan Sankaran Vs. Kunjipillai
Amma Gouri Amma & Ors. to support his submission that in terms
of Section 114 of the Indian Evidence Act there is a presumption
that possession goes with the title. It is submitted that sale deed
Ex.PW-2/1 had been proved by the plaintiff evidencing his title;
possession necessarily follows.
RSA No.74/2006 Page 4 of 7
7. These arguments have been countered by the learned
counsel for the respondent. It is stated that no interference is
called for in the judgment of the two Courts below; the
appellant/plaintiff has to stand on his own legs; the deficiencies, if
any, in the defence of the defendant cannot substitute the legal
requirement of the onus of proof to be discharged by the plaintiff.
8. Perusal of the record shows that there is no fault in the
findings of the Courts below. Suit had been filed qua 1 Bigha and
10 Biswas of land situated in part of Khasra No.35/1, Village
Baprola. In the written statement it had been stated by the
defendant that he was never in possession of land measuring 1500
sq. yards in Khasra No.35/1; his case was that he had a plot of
land measuring 1 Bigha 10 Biswas out of Khasra No.7/21/2 and
7/21/1 in the revenue estate of Village Tilangpur Kotla, Delhi and a
part of it in Village Baprola. In view of the defence of the
defendant issue no.2 had been framed which inter alia reads as
follows:
“Whether the defendant no.1 has trespassed into the suit land and
raised super structure thereon? OPP”
This issue had been decided along with issue no.1. The
Court had examined the layout plan Ex.PX-1 as also the
corresponding documents i.e. sale deed Ex.PW-2/1 and the site
plan Ex.PW-1/A. Layout plan did not mention the revenue estate
of Village Baprola; the name of the colony mentioned was Nitin
Enclave. The documents annexed along with the plaint i.e. the
sale deed Ex. PW-2/A, site plan Ex. PW-1/A had mentioned the suit
property as located in Village Baprola. Identity of the suit
property was clearly in doubt. Both the Courts below had also
RSA No.74/2006 Page 5 of 7
gone into the oral as well as documentary evidence produced
before them i.e. the testimony of PW-1, the draftsman, who had
categorically admitted that he had prepared the site plan only on
the information given to him by the plaintiff with no other
independent input. Version of PW-2, the plaintiff, was also not
relied upon; the documents spoke against him. Suit of the plaintiff
could have been decreed only after the plaintiff had been able to
show that the portion of the land owned by him had been
encroached upon by the defendant. Onus of this had not been
discharged by the plaintiff. He could not connect the defendant
with the identity of the suit property which he claimed that the
defendant had illegally usurped.
9. In these circumstances, the judgment relied upon by the
learned counsel for the appellant does not come to his aid.
10. These are fact findings given by the two Courts below on the
basis of the oral and documentary evidence adduced before them.
This is not a third fact finding court. Section 100 of the CPC is
couched in mandatory terms. It casts a duty upon the court not to
admit appeals which do not involve a substantial question of law;
for such appeals are not provided for. The questions of law
phrased in the memo of appeal finds mention on page 11; they all
relate to findings of facts i.e. whether the oral or documentary
evidence adduced by the plaintiff was not sufficient, the non-
consideration of the averments made by the applicant in the
application under Order 1 Rule 10 CPC. At this stage, it is also
relevant to point out that this application under Order 1 Rule 10
CPC had been filed by a proposed successor-in-interest of
defendant no.1 seeking to be impleaded in place of defendant
RSA No.74/2006 Page 6 of 7
no.1. Application of this applicant had been dismissed. Even
presuming that these admissions were made by such an applicant,
they could not in any manner bind the defendant. The Courts
below have rightly held that it was for the plaintiff to establish his
case but he had failed to do so.
11. No question of law much less any substantial question has
arisen in this appeal. It is dismissed. Records be returned. File
be consigned to record room.
INDERMEET KAUR, J.
JULY 29, 2010
nandan
RSA No.74/2006 Page 7 of 7
th
% Date of Judgment : 29 July, 2010
+ RSA No.74/2006
RAMESH MOHAN MITTAL ………..Appellant
Through: Mr.R.K.Shukla, Advocate.
Versus
SURESH KUMAR ARORA & ANR. ……….Respondents
Through: Mr.Girdhar Govind and Ms.Noorun
Nahar Firdoshi for R-1.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This second appeal has been directed against the impugned
judgment dated 29.9.2005 wherein the judgment and decree of
the Trial court dated 7.7.2004 had been confirmed. Vide
judgment dated 7.7.2004, the Trial Judge had dismissed the suit of
the appellant/plaintiff namely Ramesh Mohan Mittal which was a
suit for possession and mesne profits. The first Appellate Court
had endorsed this finding.
2. Present suit has been filed by the plaintiff seeking
possession of a plot of 1500 sq. yards land measuring 60’ x 225’
forming a part of Khasra No.35/1 situated in the revenue estate of
village Baprola. The Trial Judge on the pleadings of the parties
had framed four issues. Two witnesses on behalf of the plaintiff
and one witness on behalf of the defendant had been examined.
RSA No.74/2006 Page 1 of 7
While disposing of issue nos.2 and 3, the Court had held that the
identity of the suit property on which possession had been claimed
by the plaintiff has not been established by him. The layout plan
Ex.PX had mentioned the name of the colony as Nitin Enclave but
the site plan proved through the version of PW-1 Ex.PW.1/A did
not mention Nitin Enclave at all; it related to the revenue estate of
village Baprola. Sale deed Ex.PW-2/1 relied upon by the plaintiff
was also related to property situated in Village Baprola.
3. Further the version of PW-1, the draftsman, who had proved
Ex.PW-1/A was not relied upon as even as per his own admission
his knowledge of the case had been based upon instructions given
to him by the plaintiff; no other independent verification has been
done by him. Testimony of PW-2, the plaintiff himself was also
found to be suspect. Identity of the suit property i.e. the correct
description not having been established by the plaintiff suit was
dismissed.
4. On 29.5.2005, the first Appellate Court dismissed the
appeal. Relevant findings are as under:-
“The grudge of the appellant is that the defendant has tress-
passed into his land which was purchased by plaintiff/appellant
situated in the Revenue Estate of Village Baprola. The evidence
on the other hand is shaky inasmuch as there is no reference or
village Baprola in the lay out plan. The lay out plan was prepared
and copy of the same was given to the appellant by the colonizer
at the time of purchase of the suit land. Incidentally, the colony
lay out of which has been shown as Nitin Enclave, whereas the
appellant/plaintiff has no-where in the plaint uttered a word about
Nitin Enclave. As it was the responsibility of the plaintiff/appellant
to show that part piece of land which was purchased by him was
encroachment by the defendant and he is entitled to have it back
thus on this count the appellant/plaintiff has failed and could not
identify and connect the defendant with the alleged tress-pass in
his land. The counsel for the appellant has vehemently argued
that plaintiff/appellant is able to pin point the position through the
RSA No.74/2006 Page 2 of 7
testimony of Bhoop Singh PW1. However, in the cross
examination that said Bhoop Singh Sharma has not been able to
say that he was aware of Khasra number, location etc. He had
stated that it was plaintiff/appellant who informed him about the
details and he had not confirmed it from any other source, nor
checked it from the Revenue records etc. Therefore, his
knowledge is based upon the information provided to him by the
plaintiff/appellant. As such his testimony is of no consequence
rather the testimony of the plaintiff/appellant Ramesh Mohan
Mittal becomes vital. Here, the plaintiff/appellant has faulted on
many occasions. His testimony has collapsed during the cross
examination for he has stated that the land was purchased by him
through Colonizer but did not verify the ownership of the land
from the Revenue records. He has categorically stated that he is
not aware of the fact as to whether the vendor is the owner of the
suit property or not. He has admitted this fact that in the lay out
plan there is not mention of village Baprola. Again, he has also
fumbled on the point as to how he came to know about the
encroachment by the defendant and he had no answer cogent
enough as to why no one visited the suit land for such a long time
when he has three sons and all are residing in Delhi. The land
purchased was an agricultural piece of land. In these
circumstances, the plaintiff/appellant is under obligation to verify
the status of the land through Revenue record or from other
sources.”
5. Before this Court, it has been urged that both the Courts
below had dismissed the suit of the plaintiff summarily without
considering the fact that it was admitted by the defendant himself
that the part of the suit property i.e.500 sq. yards is situated in
Khasra no.35/1 at village Baprola. Attention has been drawn to
the application filed by the defendant seeking demarcation of the
land through Tehsildar (page 68 of the paper book). In paras 2
and 5 of the said application, it has been averred as follows:
“2. That the applicant/defendant filed a detailed written statement
wherein he stated that he had never been in possession of any plot
measuring 1500 sq. yards (one bigha and 10 biswas) forming part
of Khasra no.35/1 situated in the Revenue Estate of Baprola, Delhi-
41 and also gave an undertaking before this Hon’ble Court that he
undertakes not to part with possession of any land measuring
RSA No.74/2006 Page 3 of 7
1500 sq. yds. forming part of Khasra no.35/1 situated in the
Revenue Estate of Baprola.
5. That the site plan as supplied by the plaintiff with the plaint
stating his plot in Vill. Baprola out of Khasra No.35/1 resembles
with the plot of the applicant/defendant which was situated in the
Vill.Tilangpur Kotla and which was out of Khasra no.7/21/1 and
7/21/2.”
Attention has been drawn to another application filed by the
subsequent transferee of defendant no.1 seeking a prayer for his
transposition under Order 1 Rule 10 of the CPC (page 76 of the
paper book). Para 6 of the application inter alia reads as follows:
“That after the aforesaid sale, the applicant remains the owner of
the land measuring 500 sq. yards comprising of Khasra no.35/1,
situated at Village Baprola (Bapdola), Delhi and his interest is
involved in the present suit as per the information received by the
applicant from the defendant no.1 Shri Suresh Kumar Arora, on
telephone yesterday. Hence the applicant wants to participate in
the present proceedings to watch and safeguard his interest over
the aforesaid land measuring 500 sq. yards, as stated above.”
It is submitted that these contentions of the defendant show
that the defendant through his transfree had admitted that 500 sq.
yards of the suit property is situated in Khasra No.35/1 and as
such the finding of the Courts below that the suit property had not
been properly identified is a perversity which has raised a
substantial question of law in the present proceedings.
6. Learned counsel for the appellant has placed reliance upon
AIR 1970 Kerala 310 Thiruvanchan Sankaran Vs. Kunjipillai
Amma Gouri Amma & Ors. to support his submission that in terms
of Section 114 of the Indian Evidence Act there is a presumption
that possession goes with the title. It is submitted that sale deed
Ex.PW-2/1 had been proved by the plaintiff evidencing his title;
possession necessarily follows.
RSA No.74/2006 Page 4 of 7
7. These arguments have been countered by the learned
counsel for the respondent. It is stated that no interference is
called for in the judgment of the two Courts below; the
appellant/plaintiff has to stand on his own legs; the deficiencies, if
any, in the defence of the defendant cannot substitute the legal
requirement of the onus of proof to be discharged by the plaintiff.
8. Perusal of the record shows that there is no fault in the
findings of the Courts below. Suit had been filed qua 1 Bigha and
10 Biswas of land situated in part of Khasra No.35/1, Village
Baprola. In the written statement it had been stated by the
defendant that he was never in possession of land measuring 1500
sq. yards in Khasra No.35/1; his case was that he had a plot of
land measuring 1 Bigha 10 Biswas out of Khasra No.7/21/2 and
7/21/1 in the revenue estate of Village Tilangpur Kotla, Delhi and a
part of it in Village Baprola. In view of the defence of the
defendant issue no.2 had been framed which inter alia reads as
follows:
“Whether the defendant no.1 has trespassed into the suit land and
raised super structure thereon? OPP”
This issue had been decided along with issue no.1. The
Court had examined the layout plan Ex.PX-1 as also the
corresponding documents i.e. sale deed Ex.PW-2/1 and the site
plan Ex.PW-1/A. Layout plan did not mention the revenue estate
of Village Baprola; the name of the colony mentioned was Nitin
Enclave. The documents annexed along with the plaint i.e. the
sale deed Ex. PW-2/A, site plan Ex. PW-1/A had mentioned the suit
property as located in Village Baprola. Identity of the suit
property was clearly in doubt. Both the Courts below had also
RSA No.74/2006 Page 5 of 7
gone into the oral as well as documentary evidence produced
before them i.e. the testimony of PW-1, the draftsman, who had
categorically admitted that he had prepared the site plan only on
the information given to him by the plaintiff with no other
independent input. Version of PW-2, the plaintiff, was also not
relied upon; the documents spoke against him. Suit of the plaintiff
could have been decreed only after the plaintiff had been able to
show that the portion of the land owned by him had been
encroached upon by the defendant. Onus of this had not been
discharged by the plaintiff. He could not connect the defendant
with the identity of the suit property which he claimed that the
defendant had illegally usurped.
9. In these circumstances, the judgment relied upon by the
learned counsel for the appellant does not come to his aid.
10. These are fact findings given by the two Courts below on the
basis of the oral and documentary evidence adduced before them.
This is not a third fact finding court. Section 100 of the CPC is
couched in mandatory terms. It casts a duty upon the court not to
admit appeals which do not involve a substantial question of law;
for such appeals are not provided for. The questions of law
phrased in the memo of appeal finds mention on page 11; they all
relate to findings of facts i.e. whether the oral or documentary
evidence adduced by the plaintiff was not sufficient, the non-
consideration of the averments made by the applicant in the
application under Order 1 Rule 10 CPC. At this stage, it is also
relevant to point out that this application under Order 1 Rule 10
CPC had been filed by a proposed successor-in-interest of
defendant no.1 seeking to be impleaded in place of defendant
RSA No.74/2006 Page 6 of 7
no.1. Application of this applicant had been dismissed. Even
presuming that these admissions were made by such an applicant,
they could not in any manner bind the defendant. The Courts
below have rightly held that it was for the plaintiff to establish his
case but he had failed to do so.
11. No question of law much less any substantial question has
arisen in this appeal. It is dismissed. Records be returned. File
be consigned to record room.
INDERMEET KAUR, J.
JULY 29, 2010
nandan
RSA No.74/2006 Page 7 of 7