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IN THE HIGH COURT OF DELHI AT NEW DELHI
Jyoti Singh, J.
Ram Mehar - Appellant
Versus
Ali Mohd & Ors. - Respondents
R.S.A. No. 23 of 2021
Decided On : 26-02-2021
Secondary Evidence - Possession of Immoveable Property - Code of Civil Procedure, 1908 - Section 100 - Indian Evidence Act - Section 64, 65 - [POSSESSION OF IMMOVEABLE PROPERTY] - [Code of Civil Procedure, 1908 - Section 100, Indian Evidence Act - Section 64, 65] - The court discussed the requirement of proving documents by primary evidence, the admissibility of secondary evidence, and the limitations on proving possession of immoveable property. The court emphasized the need for foundational evidence for leading secondary evidence and held that the appellant failed to establish the destruction of documents and therefore could not produce secondary evidence. The court also highlighted that a caretaker or servant cannot acquire interest in the property despite long possession and that courts should not protect such possession. The court dismissed the appeal at the admission stage as no substantial question of law arose.
Fact of the Case:
The appellant filed a suit for possession of immoveable property. The trial court and the first appellate court dismissed the suit, emphasizing the need for primary evidence to prove documents and the appellant's failure to establish possession. The appellant argued that the documents placed on record were sufficient evidence to prove his case.
Finding of the Court:
The court found that the appellant failed to establish the destruction of documents and therefore could not produce secondary evidence. The court also emphasized that a caretaker or servant cannot acquire interest in the property despite long possession and that courts should not protect such possession. The court dismissed the appeal at the admission stage as no substantial question of law arose.
Issues: The issues included the admissibility of secondary evidence, the appellant's failure to establish possession, and the limitations on proving possession of immoveable property.
Ratio Decidendi: The court emphasized the need for foundational evidence for leading secondary evidence and held that the appellant failed to establish the destruction of documents and therefore could not produce secondary evidence. The court also highlighted that a caretaker or servant cannot acquire interest in the property despite long possession and that courts should not protect such possession.
Final Decision: The appeal was dismissed at the admission stage as no substantial question of law arose.
JUDGMENT
Jyoti Singh, J. -
CM APPL. 7888/2021 (Exemption)
Exemption allowed, subject to all just exceptions.
Application stands disposed of.
RSA 23/2021 & CM APPL. 7889/2021 (Stay)
1. Present Regular Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 impugning the judgement of the First Appellate Court dated 10.02.2020 in Appeal No. CIS-RCA DJ-84/2018 titled Ram Mehar vs. Ali Mohd. & Ors. preferred by the Appellant herein against the Judgement and Decree of the learned Civil Judge 01, South District, whereby the Suit for recovery of possession of immoveable property was dismissed on 20.07.2018.
2. The brief background facts necessary to decide the Appeal are as follows:
(a) The Appellant/Plaintiff filed a suit for possession against the Respondents on the ground that he was in possession of the Suit Property bearing Khasra No. 1572/2 (3-18) and 1731 (4-13) measuring 8 Bighas 11 Biswas, situated in the Revenue Estate of Village Chattarpur, New Delhi. It was averred in the plaint that:
(i) The Appellant on being released from the Jail was in search of a job when Respondent No. 1 herein/Defendant No. 1 (in the suit) approached him with a proposal to take on lease the Suit Property for cultivation and in consideration demanded a sum of Rs. 2 Lacs in cash, as refundable security amount, to be refunded to the Appellant on expiry of the lease or earlier, if the owner of the Suit Property seeks possession of the same. As per the plaint, Appellant was informed that the agricultural land was owned by one Smt. Mahender Kaur Anand/Defendant No. 3 and the father of Defendant No. 1, namely, Shri Nazar Khan was appointed by her as a caretaker, with an understanding that in exchange for the right to possess and cultivate the Suit Property, Shri Khan would protect the Suit Property from encroachment by third parties.
(ii) Father of Defendant No.1 continued to be in possession until his demise in May, 2004 and thereafter Defendant No.1 stepped into his shoes and continued to be in possession of the Suit Property.
(iii) Appellant took the Suit Property on lease for 3 years from 24.04.2006 to 24.04.2009 with an understanding that it shall be extended for a further period of 7 years on increased monthly lease rent. Accordingly, Defendant No. 1 executed the Lease Deed, General Power of Attorney, Indemnity Bond, Possession Letter, Receipt and Affidavit, all dated 25.04.2006, in favour of the Appellant. Appellant thereafter made some construction and started cultivation.
(iv) Appellant remained in absolute possession of the Property from 10.01.2007, for more than 260 days. It was later learnt by the Appellant that Respondent Nos. 2 to 6 herein, claimed themselves to be the owners of the property, having purchased the same from Mahender Kaur and a suit for recovery was filed by the Appellant. On 07.03.2007, some unknown persons entered the house of the Appellant and assaulted him and the family members and set it on fire, in which the original Lease Deed, GPA, Indemnity Bond etc. all dated 25.04.2006 were burnt.
(b) Defendant No. 2 expired during the pendency of the suit and his LRs were brought on record who thereafter contested the proceedings and are Respondent Nos. 2 to 6 herein.
(c) The arguments put forth before the Trial Court by the Appellant were (i) Defendant No. 1 being the Caretaker had given the suit property on lease to the Appellant for cultivation against valid documents executed by him; (ii) Defendant No. 2 illegally took possession from the Appellant; (iii) actual owner is not traceable; (iv) photocopies of the property s documents were submitted since the originals were burnt in the fire; (v) the lady claiming to be Ms. Mahender Kaur is not the real Mahender Kaur i.e. Defendant No. 3, as the original Mahender Kaur has expired.
(d) Legal Representatives of Defendant No. 2 contested the suit and submitted that (i) plaintiff had no locus standi with respect to the suit property; (ii) it was a collusive suit between
AI
The need for foundational evidence for leading secondary evidence and the limitations on proving possession of immoveable property.
The plaintiff must establish ownership through clear evidence; failure to present the original documents undermines claims, reinforcing the trial court's decision.
The main legal point established in the judgment is the admissibility of certified copies of documents as secondary evidence under the Indian Evidence Act, 1872. The court clarified the conditions an....
The court established that secondary evidence is inadmissible without a foundational explanation for the absence of primary evidence, emphasizing strict adherence to evidentiary rules.
Ownership established through documentary evidence; defendant failed to prove lawful possession or title, justifying eviction.
Objections to the admissibility of evidence should be raised when the evidence is tendered and cannot be raised subsequently. The plea of adverse possession must be pleaded with proper particulars an....
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