2016 Supreme(Del) 3480

IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J.MEHTA, J.
L.M. WALTER (SINCE DECEASED) THROUGH LRS. - Appellants
Versus
SH. ONKAR GIRI (NOW DECEASED) THROUGH LRS & ORS. - Respondents
RSA No.108 of 2011
Decided on : 15-09-2016

Headnote:

REGULAR SECOND APPEAL - SUIT FOR POSSESSION - AGREEMENT TO SELL - RECEIPT - PROPERTY TAX RECEIPTS - SURVEY REPORT - OWNERSHIP - ORAL EVIDENCE - ADVERSE INFERENCE - LIS PENDENS - PART PERFORMANCE - SECTION 53A OF THE TRANSFER OF PROPERTY ACT - SECTION 54 OF THE TRANSFER OF PROPERTY ACT - SECTION 17 OF THE REGISTRATION ACT - SECTION 52 OF THE TRANSFER OF PROPERTY ACT - SECTION 90 OF THE EVIDENCE ACT - ORDER 1 RULE 10 OF CPC.

Fact of the Case:

Plaintiff purchased rights in the suit property under the documents being an Agreement dated 9.4.1975 (Ex.PW2/1) and receipt of the same date Ex.PW1/A. Rights in the property were purchased by the plaintiff from one Mohd. Asghar. Mohd. Asghar had purchased the property from one Sh. Gajraj Singh who had remained in occupation of the suit property for about ten years and had constructed two rooms and installed a hand pump in the suit property. Consideration paid for purchase of the rights in the suit property by the plaintiff to Mohd. Asghar was a sum of Rs.6,000/-. Plaintiff/appellants further pleaded that the defendant no.1/Sh. Clames Walter/respondent no. 2 was his nephew and he requested the plaintiff for staying in the suit property on account of advanced pregnancy of his wife whereupon the plaintiff took pity and out of human sympathy allowed his nephew/defendant no.l/respondent no.2 herein to live in the suit property. Defendant no.1/respondent no.2 however illegally ‘sold’ the suit premises to the defendant no.2/Sh. C.L. Sharma/respondent no.3 herein and which respondent thereafter further transferred the suit property to defendant no.3 (Sh. Ram Nath Sharma/respondent no.4 herein) and defendant no.4 (Sh. Onkar Giri/respondent no.1 herein). Whereas the defendant no.3/Sh. Ram Nath Sharma was inducted in 135 sq yds of the property, the defendant no.4/Sh. Onkar Giri and who is represented in this second appeal by his legal heirs respondent nos.1(i) to (iv) was inducted in 30 sq. yards.

Finding of the Court:

The trial court held that the plaintiff/appellants had better title to the suit property by virtue of the Agreement executed by Mohd. Asghar in favour of the plaintiff dated 9.4.1975 and which was duly proved as Ex.PW2/1. The receipt of the same date in favour of the plaintiff by Mohd. Asghar was proved as Ex.PW1/A. The property tax receipts in the name of Mohd. Asghar and thereafter the plaintiff with respect to the suit property were proved as Ex.PW1/C to Ex.PW1/G. The survey report of the MCD showing the property to be owned and in the name of the plaintiff was proved as Ex.PW1/B. In contrast the defendants only led oral evidence and which oral evidence did not support the stand of the defendant no.1 of either being in possession of the suit property since 1963 or being the owner because of any title documents. Hence, the trial court has rightly held the plaintiff/appellants to be having better title right and thus entitled to possession of the suit property from the defendants. The first appellate court by its impugned judgment has set aside the judgment of the trial court by basically arriving at the following conclusions: (i) In the name of Mohd. Asghar there is only one property tax receipt of the year 1974-1975 but there were no property tax receipt of earlier years either in the name of Mohd. Asghar or the prior owner Sh. Gajraj Singh. (ii) Property tax receipts from the year 1974-1975 onwards proved and exhibited as Ex. PW1/C to PW1/G would not show any title to the property because property tax receipts are easily prepared because the Corporation is basically interested in taking its property tax and is not interested with respect to who is the owner of the property. (iii) The property tax document of the Corporation being the survey report Ex.PW1/B falsifies the case of the plaintiff inasmuch as this document shows ownership of the plaintiff as on 1.4.1974 and which cannot be because as per the case of the plaintiff himself the property was purchased by the documents dated 9.4.1975. (iv) The documents being the agreement and receipt Ex. PW2/1 and Ex. PW1/A respectively not being registered documents would not create rights in an immovable property in favour of the plaintiff. (v) There is lack of credibility of the deposition of plaintiff/PW1 as there are various inconsistencies in the deposition of the plaintiff who deposed as PW1 with respect to the date of entering into possession of different defendants and also that there were further inconsistencies with respect to the facts as to how the suit property come into possession of three different persons ie defendant nos. 3 and 4 and now with one Sh. J.N. Tandon.

Issues: None

Ratio Decidendi: The first appellate court has committed a complete perversity in holding that corporation/property tax documents Ex.PW1/B and Ex.PW1/C to Ex.PW1/G will not help the plaintiff firstly because there is only one property tax document of Mohd. Asghar and secondly that property tax receipts only show interest of a Corporation to collect tax, because, property tax documents show assertion and acting upon of ownership documents by Mohd. Asghar and then the plaintiff as contrasted by defendant no.1 who failed to do so in spite of claiming ownership.

Final Decision: The Regular Second Appeal is accordingly allowed. Parties are left to bear their own costs.