Lal Chand Deceased Through His Legal Heir & Ors. v. Ram Ujagar

10. Ram Ujagar was subjected to cross-examination on his affidavit by learned counsel for the appellant, Lal Chand. The entire record of cross-examination deserves to be reproduced thus: “I tender my evidence by way of affidavit which is Ex. PW1/A which bears my signatures at point A & B. I rely upon the documents Ex. PW1/1 to Ex. PW1/6. Copy of the power of attorney dated 11.10.1999 is Ex. PW1/1 (OSR), copy of the deed of WILL dated 11.10.1999 is Ex. PW1/2 (OSR), copies of the receipt, possession letter, affidavit, agreement to sell and purchase, all dated 11.10.1999 are Ex. PW1/3 (Colly, OSR), copies of three photographs are Mark A (Colly), copy of my aadhar card is Ex. PW1/4 (OSR), site plan is Ex. PW1/5 and copies of affidavit and receipt dated 19.03.1999 are marked as mark B (Colly). The documents mentioned as Ex. PW1/4, Ex. PW1/6 and Ex. PW1/7 in the affidavit are de-exhibited as the original of the same are not available. The same are now marked as Mark A (Colly, Mark B (Colly). XXXX by B.S. Solanki, learned counsel for the defendant. I had not checked the record of Patwari concerned to ascertain the original owner, khasra number as well as area of the suit property. I did not ask the names and addresses of the persons who were Signing working at the suit property. I had not made any complaint against the said persons, who were working at the suit property. (Vol. I had made the police complaint against the defendant). I have not inquired about the name, parentage and address of the lady, who came on the suit property as she told that she is going to meet Lal Chand and will again come with him. Since, I have no concerned with her, therefore, I have not made any further inquiries. The suit property is not having an independent and unique number as the same is part and parcel of a chunk of 500 Sq. yards out of which, I have purchased 200 Sq. yards. I am not aware about its exact khasra number. It is correct that in Ex. PW1/1, Ex. PW1/2, Ex. PW1/3, Ex. PW1/5 and Mark B (Colly), the space meant for mentioning the plot number of the suit property has been left blank. (Vol. When the suit property was purchased there was no number of the plots). The block numbers and plot numbers were later on given by the concerned authority. I purchased the material for raising the boundary over the suit property from the dealer of the same locality, however, I am unable to recall the name and address of the said dealer. I was not aware about the name and address of the said lady, who came at the suit property that is why she was not made a party in the present suit. The aforesaid documents regarding the suit property were executed on 11.10.1999. On 11.10.1999, I had purchased the suit property from the defendant herein. It is wrong to suggest that title documents of the suit property were not signed by the defendant Lal Chand. (Vol. Sh. Lal Chand had signed all the documents in my presence). It is wrong to suggest that the defendant had neither sold any property to me nor signed any documents. It is wrong to suggest that I am deposing falsely at the instance of some other persons.”

11. PW-2, Banwari Lal, also filed his affidavit in evidence, which read thus:

12. PW-2 was also subjected to cross-examination by learned counsel for the appellant. The record of his cross-examination which took place on 2 November 2021 is as under: “I tender my evidence by way of affidavit Ex.PW2/A which bears my signatures at point A and B. The document mentioned in my affidavit as Ex. PW2/1 i.e. Adhar Card be de-exhibited as the copy of same is not on record.

XXXXX by Sh. B. S. Solanki, Ld. Counsel for defendant. The transaction with regard to the plot (sauda) took place in my presence. Vol. Even the documents were also executed in my presence. I do not remember the amount for which the sauda/ deal took place. The payment was made in my presence but I do not remember the quantum. I had seen the documents of the plot available with Lal Chand. I am not literate but I can sign my name. I had not inquired about the documents of Lal Chand before signing as a witness. I do not know whether any lady was also working amongst the labour. I had informed about the labour working on plot to the plaintiff. Vol. I had been informed by someone. I do not know whether I have mentioned this fact in my affidavit. I had informed Ram Ujagar in the afternoon. I do not remember the phone number on which I informed Ram Ujagar. Vol. I write it in Signing diary. I am aware of the contents of my affidavit as my counsel wrote what I told him. It is wrong to suggest that no deal/ sauda took place in my presence or that no documents were executed in my presence. It is wrong to suggest that I am deposing falsely.”

13. The learned ACJ, in these circumstances, proceeded, in her judgment dated 22 July 2022 to note as under: “13. At the very outset, it is pertinent to mention, that in the case in hand, the defence of defendant was struck off and, accordingly, the onus was upon the plaintiff to prove his case, whereby he was required to prove, that he is entitled to decree of permanent injunction in his favour and against the defendant, thereby restraining the defendant, his family members, associates, representatives from transferring, alienating, assigning, sub-letting, damaging or creating any kind of third party interest over the suit property and from carrying out any kind of constructions over the plot area measuring 200 sq. yards, out of total land measuring 500 sq. yards, out of khasra No. 14/25, situated in estate of village Mubarikpur Dabas, Delhi-110041 and also the aforesaid portion of the plot which has been shown in red colour in site plan.

14. In support of his contentions, the plaintiff examined two witnesses i.e. himself as PW-1 and Banwari Lal as PW-2. The plaintiff has relied upon the documents i.e. Ex. PW1/1 to Ex. PW1/3 in support of his ownership and possession comprising of GPA, Deed of Will, Receipt, Letter of possession, Affidavit, Agreement to Sell pertaining to the suit property. Bare perusal of these documents show, that these documents were executed by Lal Chand i.e. the defendant herein in favour of Ram Ujagar i.e. the plaintiff herein. It is not out of place to mention here, that in the instant case, though the defendant got an opportunity to cross-examine the plaintiff's witnesses, however, nothing substantial has come out from the cross- examination of the witnesses, which can discredit the version of the plaintiff. It is a matter of record, that Ld. Counsel for defendant has not put even a single suggestion to the plaintiff with regard to the property not belonging to the plaintiff or with regard to the plaintiff not having possession over the suit property. No suggestion has been given by Ld. Counsel for defendant qua the denial of the plaintiff with regard to having his right over the suit property nor any such Signing document has been placed on record. The only point on which the cross-examination has been done, is with regard to the property not being numbered, but that perse does not negate the prima facie right of the plaintiff over the suit property, established vide the documents placed on record. In addition to this, PW-2 categorically stated in his crossexamination, that the transaction with regard to the plot (suit property) took place in his presence and not only this, he further went on to depose that the documents were also executed in his presence and he had seen the documents of the plot available with the defendant.

15. It is categorically established from the documents placed on record, that the plaintiff had purchased the suit property measuring 200 sq. yards, out of 500 sq. yards, out of khasra No. 14/25, situated in estate of village Mubarikpur Dabas, Delhi-110041 from the defendant and the factum regarding purchase of the suit property and possession of the plaintiff over the suit property is not questioned by the defendant at all. Hence, the onus as casted upon the plaintiff has been discharged by the plaintiff.

16. Relief: In view of above mentioned observations, I am of the considered view that the plaintiff has successfully discharged the burden of proving his case. Accordingly, the suit of the plaintiff is, thus, decreed in favour of the plaintiff and against the defendant and following reliefs are awarded: a) Decree of permanent injunction in favour of the plaintiff and against the defendant and the defendant, his family members, associates, representatives etc. are hereby restrained from transferring, alienating, assigning, subletting, damaging or creating any kind of third party interest and further from carrying out any kind of constructions over the plot area measuring 200 sq. yards, out of total land measuring 500 sq. yards, out of khasra No. 14/25, situated in estate of village Mubarikpur Dabas, Delhi-110041, without due process of law. b) Costs of the suit are also awarded in favour of the plaintiff and against the defendants.”

14. Even though placing the onus to prove the assertions in the plaint on the plaintiff, the learned ACJ has observed that the plaintiff had proved the fact that he had titular as well as possessory right over Signing the suit property, through the documents exhibited as Ex. PW-1/1, PW-1/3 as well as through his affidavit in evidence read with his cross-examination. It was noted that there was no attempt in the crossexamination of Ram Ujagar to question either his titular or his possessory right over the suit property. In these circumstances, the learned ACJ held that Ram Ujagar had successfully discharged the onus to prove his case and accordingly decreed the suit.

15. The appellant appealed against the said judgment and decree to the learned ADJ vide RCA DJ 43/2022.

16. Though the appellant sought to place certain documents on record in the aforenoted first appeal, they were not accompanied by any application under Order XLI Rule 27 of the CPC for taking the documents on record. As such, they were not taken on record.

17. The learned ADJ, for his part, observed thus:

20. Mr. Rajesh Gupta, learned counsel for the appellant, initially sought to submit that the respondent had no titular right over the suit property and sought to cite, in that regard, the judgment of the Supreme Court in Suraj Lamp & Industries Pvt Ltd v. State of Haryana[2]. The reliance is misplaced. Suraj Lamps, as well as the recent decision of the Supreme Court in Shakeel Ahmed v. Syed Akhlaq Hussain[3], clearly hold that no title entrusted to immovable property can pass on the basis of unregistered documents. However, there is no dispute that the documents under which the appellant Lal Chand had transferred the title in the suit property to the respondent Ram Ujagar were in fact registered documents. The principle in Suraj Lamps, reiterated in Shakeel Ahmed, that no title can pass under unregistered documents has, therefore, no application in the present

21. Mr. Rajesh Gupta sought to contend that, even if the titular rights of Ram Ujagar over the suit property could not be questioned, he had not discharged the onus to prove that he was in possession of the suit property. Mr. Gupta submits that, in a case in which the defendant is ex parte or where the defendant fails to file a written statement, the Court is required to be doubly careful in ensuring that the plaintiff has conclusively proved his case. In the present case, submits Mr. Gupta, no conclusive proof was adduced by the respondent, of his having been in possession of the suit property.

22. Mr. Gupta has, inter alia, drawn my attention to the documents under which his client had purchased the suit property from Arun Kumar Sharma, which was later than the date on which Ram Ujagar claimed to have come in possession of the suit property.

23. The aforementioned documents do not form any part of the record of the Court below. The appellant did not choose to file any written statement before the learned ACJ. The order dated 24 September 2018, closing the right of the appellant to file written statement was also never assailed. The averments in the plaint thereby remained untraversed.

24. What is worse, the appellant did not even choose, while crossexamining either Ram Ujagar or Banwari Lal (PW-2), to question either the titular or possessory right of Ram Ujagar over the suit property. Signing

25. It was only at the stage of the first appeal that the appellant sought to introduce certain additional documents. That, too was not done in the manner known to the CPC by filing an application under Order XLI Rule 274 of the CPC. No opportunity was, therefore, available to the respondent to question the taking of the said documents on record. The said documents have therefore correctly not been adverted to by the learned ADJ.

26. In these circumstances, it cannot be said that the present appeal raises any substantial question of law within the meaning of the expression as defined by the Supreme Court in Chandra Bhan v. Saraswati[5].

27. The appeal is accordingly dismissed in limine.

27. Production of additional evidence in Appellate Court. – (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if— (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.