Rattan Lal & Anr. v. Ragunath

5.3. Thus, in the facts of this case, the Appellants do not dispute that Smt. Munni Devi was the original allottee and the suit property was sold by her. The Appellants are merely disputing that the suit property was sold to the Respondent herein, however, the same is a bald plea as the Appellants have not placed on record any documents of purchase of the suit property in favour of late Sh. Agan Lal and late Sh. Naroti Lal.

6. Secondly, the Appellants set up a defense in the written statement that the sale consideration, which was paid to the vendor i.e., Smt. Munni Devi, was paid by the father of the Appellant No.1. However, the First Appellate Court after perusing the evidence of Appellant No. 1, i.e., DW-2, has returned a finding of fact that the said plea of the Appellant No. 1 was improbable in the facts of the case and further, the said plea could not be proved by the Appellants. The finding of the First Appellate Court in this regard reads as under: - “16. Furthermore, perusal of the cross examination of the defendant no.1 as DW-2 shows that he admitted in his cross examination that: - “At that time, my father was of old age being 50 years of age and he did not keep well. It is correct that my elder brother Sh. Raghu Nath use to work and maintain his family. Vol. We used to work together..... It is correct that the suit property was purchased in the year 1982. I cannot say whether the suit property was purchased in the year 1982 in the exclusive name of Sh. Raghu Nath. The suit property was purchased from one Ms. Munni Devi….”

17. Hence, the defendant has admitted that at the relevant time, his father was not working. He has admitted that the plaintiff was working and was maintaining his family. He has admitted that the property was purchased in the year 1982 from Smt. Munni Devi. It may be mentioned that the documents which have been executed in the favour of the plaintiff are also of the year 1982 and they have also been executed by the original allottee Smt. Munni Devi. At the cost of repetition, no other document is on record qua the suit property. Hence, it can be presumed that he had no contribution towards the purchase of the suit property. As the documents are in the favour of the plaintiff and defendant no. 1 has admitted the year and the seller of the same, the plaintiff is entitled to the benefit of the same. The Ld. Trial Court has correctly held that the plaintiff has proved his ownership on the basis of these documents.”

6.1. The inference that can be drawn from the aforesaid findings of the First Appellate Court is that as per the evidence, the sale consideration was paid to the vendor by the Respondent herein. Before this Court, as well the Appellants have not contended that there is any proof of payment of sale consideration by the father of Appellate, late Sh. Agan Lal and elder brother of Appellant, late Sh. Naroti Lal.

7. The learned counsel for the Appellant has not impugned any of the aforenoted concurrent fact findings of the Trial Court and First Appellate Court during the course of the arguments.

8. The Appellants having failed to prove their defense before the Trial Court, raised a new plea before the First Appellate Court that the originals of documents exhibited by the Respondent as Ex.PW-1/2 (colly) to prove his proprietary title, were not produced by the Respondent before the Trial Court. This issue/objection was admittedly not raised at any stage before the Trial Court and the said documents were admitted to evidence and duly exhibited. It is a settled law that objection of mode of proof, if not raised at the time of tendering of the evidence, cannot be raised by a party subsequently and more specifically for the first time in appeal. In this regard, the Supreme Court in Lachhmi Narain Singh (D) Through LRs & Ors. v. Sarjug Singh (Dead) Through LRs & Ors., 2021 SCC OnLine SC 606, has held as under: “25. In view of the foregoing discussion, it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of R.V.E. Venkatachala (Supra).”

8.1. This Court, therefore, finds that the dispute raised to the documents exhibited as Ex.PW-1/2 (colly) is a bald plea. The Appellants have no basis for disputing the said documents. They have not led any evidence which would raise doubt on the veracity of the said documents and as noted above, the Appellants in fact admit that the vendor is Smt. Munni Devi. Further, as noted above, the Respondent has also produced the possession slip (Ex. PW- 1/5) and license fee deposit slip (Ex. PW-1/6) issued in favour of the vendor by DDA. The custody of the said documents with the Respondent coupled with documents exhibited as Ex. PW-1/2 (colly) substantiate the plea of the Respondent that the suit property was purchased by him.

8.2. With respect to the stage of raising an objection to the admissibility of the documents, the Supreme Court in its another decision of R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr., (2003) 8 SCC 753, has held that an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The Supreme Court, more specifically in case of objection with respect to the ‘mode of proof’, has held that the objection should be taken when the evidence is tendered. The Supreme Court further held that once the document has been admitted in evidence and marked as an exhibit, the objection qua admissibility cannot be allowed to be raised at any stage subsequent to the marking of document as an exhibit. The relevant extract of the judgment in R.V.E Venkatachala Gounder (Supra) reads as under:

20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:

(i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as “an exhibit”, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.

9. Therefore, the submission of learned counsel for the Appellant that the photocopies of GPA, Agreement to Sell and receipt are not admissible as Ex.PW-1/2 as provisions of Section 65 of the Evidence Act, 1872 were not followed by the Trial Court, is not maintainable at the stage of first appeal.

9.1. This Court is of the opinion that this plea is an off-shoot of the plea already discussed hereinabove. As noted hereinbefore the Appellants have not disputed the admissibility of the said documents at the stage of their tendering by PW-1 and this plea of mode of proof was raised only for the first-time during appeal. The Appellants permitted the documents to be exhibited and relied upon during the final arguments without any demur. It was only after the Appellants suffered the judgment of the Trial Court that the plea of nonproduction of originals was raised for the first time in the first appeal. In the facts of this case, no reliance can be placed by the Appellants on the decision of the Supreme Court in H. Siddiqui (Supra) as the documents were admitted in evidence and exhibited without any objection by the Appellants.

9.2. Thus, this Court is of opinion that the objection to the documents exhibited as Ex.PW-1/2 on the ground of 'mode of proof’ in a second appeal does not give rise to a substantial question of law. The law in this regard is well settled by the Supreme Court as noted hereinbefore and the Trial Court has committed no error, since no objection was raised.

10. With respect to the plea of adverse possession raised during the course of arguments before this Court, it is an admitted fact that the Appellants herein did not set up a plea of adverse possession in their written statement. They have, in fact, categorically admitted that electric meter and water meter installed in the premises stand in the name of the Respondent; and that they used to pay the cost of the electricity drawn, in cash to the Respondent for payment of the bills.

10.1. No particulars for setting up and substantiating the claim of adverse possession have been set out in the pleadings or in the evidence led by the Appellants as DW-1 and DW-2. Thus, since no plea of adverse possession has been raised, the same was not adjudicated upon by the Trial Court. The Appellants, in fact, have set up a plea of co-ownership in the written statement and raised the plea of continuous possession of a portion of the suit property for a long period. The plea of co-ownership raised by the Appellants is inconsistent with the plea of adverse possession.

11. The Supreme Court in the judgment of Uttam Chand (dead) through LRs v. Nathu Ram (dead) through LRs & Ors, (2020) 11 SCC 263, while referring to its previous judgments has held that person/defendant claiming title by adverse possession has to prove who is the true owner of the property. The relevant extract of the judgment in Uttam Chand (Supra) reads as under:

ownership of the Respondent and therefore, they are precluded from raising the plea of adverse possession against the Respondent.

11.1. Even before this Court, the Appellants during oral arguments, took a stand that they are not aware, who is the true owner of the suit property as on date.

11.2. Therefore, the plea of adverse possession raised by the Appellants as a new plea in first appeal is inconsistent with the case setup in the written statement and the trial. In law, the Appellants are precluded from taking the said plea in view of the decision of the Coordinate Bench of this Court in Bharat Bhushan Jain & Anr. v. UOI & Ors., 2014 SCC OnLine Del 3577, wherein this Court has held that the plea of ownership by title and adverse ownership cannot be raised together being inconsistent and mutually destructive. The plea of adverse possession is a question of fact and cannot be raised in appeal only on the basis of prolonged possession of suit property in the absence of the proof of the other ingredients necessary for proving the said defense including the fact that the possession was hostile to the true owner of the property. In this regard, it would be instructive to refer to the decision of Supreme Court Government of Kerala & Anr. v. Joseph & Ors., 2023 SCC OnLine SC 961, wherein the Supreme Court has settled the law as under: “31. Possession must be open, clear, continuous and hostile to the claim or possession of the other party; all three classic requirements must coexistnec vi, i.e., adequate in continuity; nec clam, i.e., adequate in publicity; and nec precario, i.e., adverse to a competitor, in denial of title and knowledge……………

32. The person claiming adverse possession must show clear and cogent evidence substantiate such claim; xxx xxx xxx

35. Mere possession over a property for a long period of time does not grant the right of adverse possession on its own;

37. Such clear and continuous possession must be accompanied by animus possidendi - the intention to possess or in other words, the intention to dispossess the rightful owner;……………..

6. A plea of adverse possession must be pleaded with proper particulars, such as, when the possession became adverse. The court is not to travel beyond pleading to give any relief, in other words, the plea must stand on its own two feet.

49. Claim of independent title and adverse possession at the same time amount to contradictory pleas. The case of Annasaheb Bapusaheb Patil v. Balwant (two-Judge Bench) elaborated this principle as:…………..

51. The Court in Uttam Chand (supra) has reiterated this principle of adverse possession.

52. Burden of proof rests on the person claiming adverse possession.

56. In the instant facts, for the respondents to be granted the enjoyment of the disputed property, clear, continuous and hostile possession would have to be established by way of cogent evidence and the animus possidendi must be demonstrated. We now proceed to examine whether these requirements are met with in the present case.”

11.3. Therefore, in the opinion of this Court the First Appellate Court has rightly concluded at paragraph 14 of the judgment that the Appellants cannot be permitted to raise the plea of adverse possession for the first time in appeal. The relevant extract of the impugned judgment reads as under: - “14. The defendants have taken this objection in the appeal that no title passes in the favour of the plaintiff as the documents are unregistered. It is also argued that the property was purchased by the father of the parties and Sh. Naroti Lal. However, the defendants have not placed on record any documents to prove this fact. It is only a mere oral allegation. As the parties are related to each other, the fact that the defendants were residing in the suit property is not surprising. It is not understandable that the parties may have been residing together, no matter whose title over the same prevails. However, mere possession shall not grant a title in favour of the defendants, no matter how long the possession is, unless a defence of adverse possession was taken, which has not been taken in the present case. Hence, the fact that the defendants have been in possession of the property since 24 years is of no consequence.”

12. In view of the aforesaid, this Court finds that there is no substantial question of law raised in the present appeal and the same is accordingly dismissed. The pending application(s) also stands disposed of.

MANMEET PRITAM SINGH ARORA (JUDGE) AUGUST 18, 2023/mr/aa