Laxmi Narayan Soni v. Sudha Gupta & Ors.

9. With respect to issue no.4 of the appellant/plaintiff not having a cause of action to file the present suit on account of dismissal of the previous suit, the trial court has held that dismissal of the previous suit did not bar filing of a fresh suit as for each day of illegal dispossession a fresh cause of action arises for claiming possession, but the period of dispossession if exceeds 12 years, then by virtue of Article 65 of the Limitation Act, 1963 read with Section 27 of the Limitation Act the title of the property would stand extinguished. Therefore, it was held that whereas dismissal of the earlier suit in default did not bar filing of a fresh suit for possession because the fresh suit for possession is based on a cause of action which arises everyday on account of illegal possession of respondent nos. 1 and 2/defendant nos. 1 and 2, but since in the present case the illegal dispossession was more than 12 years prior to filing of the subject suit on 13.7.2009, the subject suit was held to be barred and lacking cause of action in view of Article 65 of the Limitation Act read with Section 27 thereof. The period of dispossession of the appellant/plaintiff was held to be more than 12 years because in para 4 of the plaint the appellant/plaintiff had clearly pleaded that the respondent nos. 1 and 2/defendant nos. 1 and 2 on 24.11.1996 had criminally trespassed into the suit property and unauthorizedly occupied the same without the consent and permission of the owner of the suit property whereas the suit was filed on 13.7.2009 after 12 years from 24.11.1996. The relevant observations of the trial court, and which I accept and adopt as being correct, read as under:- “8.[6] Before proceeding further, it is pertinent to mention that the previous suit was dismissed in default on 26.08.2003 under Order IX Rule 8 of CPC as on that day defendant No.1 was present in person with counsel, but none had appeared on behalf of the plaintiff. 8.[7] Thus, the issue which arises for consideration is whether the instant suit is barred under Order IX Rule 9 CPC. Order IX Rule 9 CPC precludes the plaintiff from bringing a fresh suit in respect of the same cause of action. Order IX Rule 9 CPC reads as under:-

8.10. Accordingly, this issue is decided in favour of plaintiff with the observation that though the previous suit does not bar the filing of the present suit, but the previous suit does not save limitation for filing the present suit, which as per the plaint itself is filed after expiry of limitation of 12 years." (underlining added)

10. Learned counsel for the appellant/plaintiff sought to contend that the suit is not barred by limitation, however, it could not be disputed that in para 4 of the plaint filed in the subject suit the appellant/plaintiff had himself pleaded that on 24.11.1996 the respondent nos. 1 and 2/defendant nos. 1 and 2 had criminally trespassed and unauthorisedly occupied the suit property without consent and permission of the owner of the suit property. The period of 12 years therefore with respect to the rights of the appellant/plaintiff in the suit property being extinguished commenced on 24.11.1996, and since the subject suit was filed after 12 years on 13.7.2009, therefore, by virtue of Section 27 of the Limitation Act appellant/plaintiff’s right in the suit property was extinguished and appellant/plaintiff had therefore no cause of action to file the subject suit for possession on the allegation of title of the appellant/plaintiff in the suit property.

11. Trial court has dismissed the suit by also holding that appellant/plaintiff claimed to seek possession of the property no. A- 27, but respondent nos. 1 and 2/defendant nos. 1 and 2 pleaded that they had no connection with the suit property because their property number is C-23 and not A-27 and that whereas the property no. A-27 of the appellant/plaintiff fell in Khasra No. 822, the property no. C-23 of the defendant fell in Khasra No. 824 with the fact that the appellant/plaintiff claimed ownership of 200 sq. yards whereas the plot of the respondent nos. 1 and 2/defendant nos. 1 and 2 was of 280 sq. yards.

12. Trial court has also held that it was for the appellant/plaintiff to show that the property of which possession was claimed was property no. A-27 but in this regard appellant/plaintiff miserably failed because appellant/plaintiff’s two site plans showed difference of the measurements of the plots with the most important fact being that if there was doubt as to whether the property in possession of the respondent nos. 1 and 2/defendant nos. 1 and 2 falls in Khasra No. 822 as contended by the appellant/plaintiff or in Khasra No. 824 as contended by respondent nos.[1] and 2/defendant nos. 1 and 2 then the property could have been got demarcated from the revenue authorities but admittedly appellant/plaintiff took no such steps to get the demarcation done. Trial court in this regard also rightly further observed that appellant/plaintiff led no evidence of municipal numbering of the suit property from the municipal record that the suit property was A-27 and not C-23 as contended by the respondent nos. 1 and 2/defendant nos. 1 and 2. Accordingly, trial court dismissed the suit by holding that the appellant/plaintiff failed to prove that the property in possession of the respondent nos. 1 and 2/defendant nos. 1 and 2 was A-27 of which ownership was claimed by the appellant/plaintiff. The relevant observations of the trial court in this regard are contained in paras 9.[1] to 9.13 and these paras read as under:- “9.1. All the three issues are with respect to the suit property and directly dependent on its identity. As per plaintiff the number of the suit property is A-27 and it falls in khasra number 822 of village Mandwali: Fazalpur, Delhi, whereas, as per defendant No.1 & 2 the property with respect to which case has been filed is bearing number C-23, West Vinod Nagar, Narwana Road, Delhi and it falls in khasra No. 824. The plaintiff has described the property in para 2 of the plaint as under:- “That the plot of land measuring 200 sq. yards on which the above said house was constructed bears private No. A-27, West Vinod Nagar, Narwana Road, Delhi-110092, which is bounded as under:- North: Road South: Road East: Pulia Nala Later on converted and at present there is a street/road. West: Other built up property” 9.[2] The plaintiff examined as PW[1] relied upon exhibited two site plans in para (a) on page 12 of his affidavit Ex.PW1/A, which is reproduced as under:- “(a) Site plan showing the original construction of the premises in question duly signed by the deponent is Ex.PW1/1. Now latest and new construction shown in site plan Ex.PW1/1A.” 9.[3] The two site plans filed by the plaintiff are contradictory to each other as far as dimensions of the property are concerned and the difference is brought out in a tabular form as under:- Site Plan North East South West Ex. PW1/1 60’ 12’6” - 48’ Ex.PW1/1A 83’ 9’ 87’ 55’

9.4. As per plaintiff the only difference in the two plans is that the second plan Ex.PW1/1A shows the new construction on the property, however, in the opinion of the court the very dimensions of the suit property in the two site plans are so different that the same cannot be reconciled. 9.[5] Thus, the area and dimensions of the suit property could not be proved by plaintiff and unless the dimensions and area of the suit property are proved, a decree of possession cannot be passed in his favour. Thus, on this sole ground alone the plaintiff is not entitled to relief of possession. 9.[6] Now coming to the municipal number of the property. The onus to prove the municipal number of the property is upon the plaintiff as it is he who has approached the court for relief of possession of a particular property bearing No. A-27.

9.7. The plaintiff, in order to prove the number of the suit property, relied upon title documents of property Mark A to H and Ex.PW1/10 to Ex.PW1/15. In the documents Mark A to Mark H there is no mention of the number of property. It is interesting to note that in document Mark F and Mark G i.e. GPA and Agreement dated 06.07.1984 executed by R.C. Kohli in favour of Trilok Singh, the address of Trilok Singh is mentioned as “A-43/2, West Vinod Nagar, Delhi”, which means that numbers were already allotted in A block West Vinod Nagar at least up to number 43/2, but the same documents do not bear property number as A-27, West Vinod Nagar. The reason for the same remains unexplained. The number of the property for the first time finds mention in document Ex.PW1/11 to 1/15 dated 30.10.1996 without any mention of the fact that as to how and when municipal number was assigned to the property. It is again interesting to note that the property number for the first time finds mention in title documents dated 30.10.1996 and in less than a month, it is alleged that defendant no. 1 and defendant no. 2 criminally trespassed into the suit property on 24.11.1996, but no suit was filed for recovery of possession, rather, the property was sold to plaintiff in December 1998. Thus, the title documents filed by plaintiff are of no value to prove that the number of the suit property is A-27. 9.[8] The plaintiff in his cross examination was questioned about possession of property and he testified “the person from whom I had purchased the suit property was in possession of the suit property. It is wrong to suggest that neither I nor my predecessor in interest was having any physical possession of the suit property”. The said testimony is contrary to the contents of plaint as in the plaint and affidavit, the plaintiff stated that defendant No. 1 and defendant No. 2 trespassed into suit property in 1996 whereas he purchased the property in 1998.

9.9. Thus not only the plaintiff failed to prove the number of the property, but he also failed to explain as to why he purchased a property which was occupied by trespassers and why the said fact was not recorded in the title documents.

9.10. The best way to prove the number of a property is by summoning the record with respect to the number of the houses in a society from the concerned authority or in case of a private colonized society from such colonizer or RWA/Panchayat, if the colonizer is not available.

9.11. The plaintiff made no such efforts to summon relevant record of municipal number of suit property from any of the concerned persons/bodies and he himself also failed to produce relevant documents to prove the municipal number of suit property.

9.12. Now coming to the argument of the plaintiff on issue No. 2, the plaintiff has argued that he has proved that he is the owner of property number A-27 by producing the relevant title deeds. However, it has been observed earlier these title deeds do not prove that the property with respect to which the suit has been filed bears municipal number A-27. It is one thing to prove that a person is owner of a particular property and it is another to prove that the suit has been filed with respect to the said property only. In the present case the defendants have not challenged the ownership of the plaintiff qua property number A-27, as in paragraph NO. 2 on page 5 of the written statement defendants No. 1 & 2 have categorically stated that they have no concern with property bearing number A-27.

9.13. As per the defendants the property with respect to which the suit has been filed is situated in Khasra No. 824 and bears municipal number C-23, whereas according to plaintiff the suit property is situated in Khasra No. 822 and bears municipal number A-27. The plaintiff could have easily proved that the suit property falls in Khasra No. 824 and not in Khasra No. 822, by getting the property demarcated and by proving demarcation report before the court, but no such steps were taken by the plaintiff. The plaintiff instead of standing on his own feet, is trying to rely upn the testimony of the defendants to prove that the suit property falls in Khasra no. 822 and that it bears municipal number A-27. However, even from the testimony of the defendants, the plaintiff is unable to extract an admission that he suit property falls in Khasra no. 822 and that it bears municipal number A-27. Though, DW-1 Sudha Gupta, in her cross examination, admitted that the adjoining property bears municipal number A-24, but she clarified that it was block A and now it is block C. She also testified that property bearing number A-27 is located in front of the gali opposite to her property and that the same is constructed upto 3-4 stories. The said witness also relied upon several documents like water bills, ration card, voter ID cards etc in order to prove that defendants No. 1 & 2 are in possession of property number C-23 and not in possession of property number A-27.” (underlining added) 13.(i) I completely agree with the aforesaid findings because if the appellant/plaintiff claimed the suit property to be numbered A-27 falling in Khasra No. 822 and not C-23 falling in Khasra No. 824 as contended by respondent nos. 1 and 2/defendant nos. 1 and 2 then it was very simple and easy for the appellant/plaintiff to get the property demarcated from the revenue authorities, but this the appellant/plaintiff failed to do. Equally, it is important to note that the number of the property of the appellant/plaintiff as A-27 is shown only for the first time in the title documents of the appellant/plaintiff but in prior documents of alleged ownership of the suit property there is no mention of the property by its number as A-27 and the trial court has in this regard also rightly observed that in fact in an earlier title document/sale deed the property number of the property of which the appellant/plaintiff claims ownership is shown a totally different number of A-43/2, West Vinod Nagar, Delhi.

(ii) Also, in my opinion, trial court has rightly relied upon the vast differences in the measurements of two site plans filed by the appellant/plaintiff and as detailed in paras 9.[3] and 9.[4] of the impugned judgment which have been reproduced above.

14. In view of the above, there is no merit in the appeal. The appeal as also the interim application is dismissed, leaving the parties to bear their own costs. MAY 01, 2018/ib VALMIKI J. MEHTA, J