Vijay Kumar Sharma v. Desh Raj & Ors.

1. This regular second appeal filed under Section 100 CPC impugns the concurrent findings of facts and law by the courts below. The judgment of the trial court dated 31.8.2012 dismissed the suit of the appellant-plaintiff and appellate court by its judgment dated 10.9.2013 dismissed the appeal. In this case, the plaintiff-appellant claims rights in the suit premises admeasuring 35 sq. yds bearing no. 1880 Udai Chand Marg, Kotla Mubarakpur, New Delhi. Plaintiff filed the suit for permanent injunction claiming that defendants were threatening to dispossess him and he was 2014:DHC:88 entitled to relief of injunction.

2. The trial court by its judgment dated 31.8.2012 has found that actually the premises no. 1880 were in the tenancy of one Sh. Niranjan Dev and he appeared as DW-6 on behalf of the defendants. Sh. Niranjan Dev transferred the tenancy rights to the late defendant no.1 (now represented by his legal heirs), and that the plaintiff was only a partner with the said Sh. Niranjan Dev. It is only because of being a partner that the plaintiff/appellant had certain documents pertaining to the telephone connection, electricity bill etc of the suit premises. Trial court relied upon the admissions made by the appellant-plaintiff in the judicial proceedings wherein it was admitted by him that he was only a partner with Sh. Niranjan Dev. This statement in the earlier proceedings before the Metropolitan Magistrate made by the appellant- plaintiff was filed and exhibited as Ex.DW1/8. The relevant observations in this regard are also made by the appellate court in para 29 of its judgment and which reads as under:-

3. Similar observations made by the trial court in its judgment dated 31.8.2012 in paras 17 to 22 read as under:- “17. On the other hand defendant had also lead voluminous evidence to establish that defendant no.1 had inducted Sh. Niranjan Dev as a tenant in the suit property. The defendant has categorically deposed that plaintiff was never in possession of the property. The defendant also examined independent witnesses i.e. DW-2 Sh. Jagpal and DW-

6 Sh. Niranjan Dev. The testimony of DW-6 is very important for the adjudication of the controversy at hand. This witness duly supported the case of defendants. He has deposed that he was tenant in the suit property under defendant no.1 and he handed over the possession on 24.08.99. The defendants have also proved the documents of handing over of the possession as Ex.DW1/5 and the receipt as Ex.DW1/6.

18. The defendant also proved the statement of plaintiff given in the court of Ld. ASJ, Delhi on 19.09.1998 as well as the complaint given by him to police on 12.07.1987. The counsel for plaintiff had argued that these documents were objected to and these are not admissible in evidence. However, documents Ex.DW1/8 & Ex.DW1/12 are certified copies of the judicial record. These documents were also put to the plaintiff in his cross-examination. The plaintiff did not deny his statement given in the court as well as to the police. The plaintiff stated that he does not remember as to whether he signed at the statement. The question regarding his statement before the police as well as in the Court were put to him in the cross examination. The plaintiff did not deny the facts that Sh. Madan Lal attacked Sh. Niranjan and whether on 12.07.1987 he was sitting in shop no. 1880. Thus the plaintiff did not deny his statement. He also did not stay that he did not sign on those statements. It is settled proposition of law that presumption is attached to the judicial proceedings. Statement Ex.DW1/8 was recorded in court. DW-6 Sh. Niranjan Dev also identified the signatures of plaintiff on the aforesaid statement. He also proved his statement given in the court as Ex.DW1/7. Both these statements were given in the same court in the same case title as State Vs. Madan Lal. Thus the defendant duly proved the statement of plaintiff given to police and in the court. Thus the statement Ex.DW1/A & DW1/2 stands proved.

19. In the statement Ex.DW1/12 the plaintiff had stated that Niranjan Dev is carrying on Kiryana Shop bearing no.1880 and another shop of Ration in shop no. 1893. He further stated that he developed partnership with Niranjan Dev 15/20 days before that date i.e. 12.02.1987 and both of them were running kiryana shop and a ration shop. In the Statement Ex.DW-1/1 he reiterated the aforesaid plan. Thus as per statements Sh. Niranjan Dev was a tenant in the shop bearing no. 1880 and plaintiff was having partnership with him. The aforesaid admissions of plaintiff coupled with the evidence of defendant witness i.e. DW-1, DW-2 Sh. Jagat and Sh. Niranjan Dev proved that Sh. Niranjan Dev was a tenant in the shop no.1880 and the plaintiff entered into a partnership with him 15/20 days prior to 12.02.1987.

20. The plaintiff has made out a case in the plaint and his father occupied the suit property and subsequently started using the number of 1880 of his own convenience. He further stated in the plaint itself that a property bearing no. 1880 belongs to defendant no.1. The plaintiff has not mentioned the date, month and year when his father started using the number of shop as 1880. It is difficult to comprehend that a person will start using a number for his shop which he already knows is of a shop of another person in the same locality. The use of same number can never be a cause of convenience to anyone.

21. In his cross-examination the plaintiff admitted that Municipal number of suit property is 1880. After the number of property is given by Municipal Corporation no person would used it for convenience. The plaintiff has not produced any document pertaining to payment of house tax of the suit property. The plaintiff in his cross-examination also stated that neither he nor his father is giving house tax. On the other hand the defendant has proved the receipt of house tax of property no. 1880 as Ex.DW4/1 & Ex.DW4/2 respectively. Thus from the evidence it is clear that there is only one shop bearing no. 1880 on the spot. Plaintiff has merely created a story that he is using number of suit property as 1880 for convenience.

22. Thus it is established on record that there is only one shop bearing no.1880. Sh. Niranjan Dev was inducted as tenant in it by defendant no.1 Though it has come on record that plaintiff was also using the suit property alongwith Sh. Niranjan Dev but it has been proved that suit property was let out to Sh. Niranjan Dev by defendant no.1 Therefore, subsequent creation of partnership by Niranjan Dev would not change the character of tenancy in his favour. The tenancy continued to be in favour of Sh. Niranjan Dev. This also explains the existence of telephone bills and other bills Ex.DW1/11 and Ex.DW1/5 respectively in the name of plaintiff. The defendant has proved that Sh. Niranjan Dev handed over tenancy in favour of defendant no.1. Thus the tenancy came to end on the surrender of tenancy by the tenant Sh. Niranjan Dev. The plaintiff was never in exclusive possession of suit property in his personal rights as a tenant or otherwise. Therefore his possession cannot be termed as settled.” (emphasis supplied)

4. In my opinion, both the courts below were perfectly justified in relying upon the admissions of the appellant/plaintiff which are the best proof of a fact unless they are sufficiently explained. Admissions of the appellant-plaintiff were in fact made in judicial proceedings that he was only a partner with Sh. Niranjan Dev and which Sh. Niranjan Dev appeared as a witness on behalf of the defendants and proved his documents by which he had transferred tenancy rights to the defendants. Appellant-plaintiff was therefore not in a settled position to claim benefit of the ratio of the judgment of the Supreme Court in the case of Rame Gowda Vs. M. Varadappa Naidu and Anr. AIR 2004 SC 4609.

5. Both the courts below have also rightly found it strange that why should a person such as the plaintiff-appellant give his alleged property of a same number 1880 as was the actual property number of the defendants and originally in the tenancy of Sh. Niranjan Dev. The courts below have also observed that whereas the defendants filed house tax receipts with respect to the said suit property, appellant-plaintiff did not file any such house-tax receipts, to establish his settled possession of the suit property no. 1880.

6 A second appeal under Section 100 lies only if there is a substantial question of law. The aforesaid discussion shows that there is no question of law involved, much less a substantial question of law, as required under Section 100 CPC for this Court to interfere. The appeal therefore being without any merit is accordingly dismissed, leaving the parties to bear their own costs.

JANUARY 06, 2014/ib VALMIKI J. MEHTA, J.