Subsequently, the suit was transferred to the District Court after the
pecuniary jurisdiction of the High Court was enhanced. Vide judgement
dated 7.9.2016, the learned trial court dismissed the suit of the
appellant/plaintiff on the ground that the onus to prove issues No.1, 2 and 3
had been placed on him as he had asserted a right, title and interest in the
suit premises and had sought a decree of declaration, for declaring the sale
deed as null and void but at the same time, he had failed to lead any
evidence in support of his case. Referring to and relying on the provisions
of Sections 101 and 102 of the Indian Evidence Act, 1872 that relate to
burden of proof and prescribe on whom the burden of proof lies, it was held
that unless such a burden is discharged by the party on whom the onus rests
by leading affirmative evidence, the opposite party is not required to prove
his case. It was further observed that the suit for declaration instituted by
the appellant/plaintiff would not be maintainable unless he could prove that
he is entitled to some right in the property and having failed to demonstrate
the same in terms of Section 34 of the Specific Relief Act, 1963 and having
declined to enter the witness box, he would not be entitled to any relief. It
was also noted that contrary to the contention of the appellant/plaintiff, the
respondents/defendants had not made any admissions with regard to the
right, title or interest in respect of the suit premises for any adverse inference
to be drawn against them.
13. Learned counsel for the appellant canvassed that the trial court had
failed to return any findings on the plea that the Sale Deed executed by
defendant No.5 in favour of the respondent No.1/defendant No.1 was a
forged and fabricated document.
14. On perusing the impugned judgment, it transpires that the aforesaid
plea taken by the appellant/plaintiff was duly considered by the learned trial
court that had observed that as the appellant/plaintiff had failed to prove that
the sale deed had been executed in a fraudulent manner, he is not entitled to
a decree of declaration. This Court is of the opinion that the
appellant/plaintiff having failed to enter the witness box without offering
any justification for staying away, the trial court had every reason to
conclude that an adverse inference ought to be drawn against him. It was for
the appellant/plaintiff herein to prove that the Sale Deed executed by the
defendant No.5 in favour of the respondent No.1/defendant No.1 was a
forged and fabricated document and no amount was paid towards the sale
consideration by the respondent No.1. The said plea was not supported by
the appellant/plaintiff as he elected not to enter the witness box. He did not
state on oath the facts that he had pleaded in the plaint before the trial court.
As the appellant avoided the witness box, he could not be cross-examined by
the other side. This by itself is considered sufficient for rejecting the claim
of the appellant/plaintiff that the transaction of sale between the deceased
defendant No.5 and the respondent No.1/defendant No.1 was a fraudulent
transaction.
IN THE HIGH COURT OF DELHI AT NEW DELHI
RFA 950/2016
HARBHAJAN SINGH .
V
KULDEEP SINGH & ORS
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
Dated: 06.12.2016.
Citation: AIR 2017 Delhi 52.
1. The appellant seeks setting aside of the judgment and decree dated
7.9.2016 passed by the trial court in a suit for declaration and permanent
injunction instituted by him against his siblings, respondents No.1, 2, 3
(since deceased), respondent No.4 and his father, respondent No.5 (since
deceased) (defendants No.1 to 5 in the trial court).
2. Before considering the submissions made by learned counsel for the
appellant, it is necessary to take note of the factual narrative. The
appellant/plaintiff had instituted the aforesaid suit praying inter alia for
declaring the sale deed dated 22.5.2006 executed by the
respondent/defendant No.5 (father of the parties) in favour of the
respondent/defendant No.1 as null and void and further, for declaring that
the he is the joint owner of the said premises; and asking for a decree of
permanent injunction for restraining the respondents/defendants from
creating any third party interest in the suit premises.
3. The appellant/plaintiff has stated in the suit that he and the
defendants are class-1 heirs of late Smt. Prasin Kaur, mother of the
appellant/plaintiff and the respondents/defendants No.1 to 4 and wife of the
respondent/defendant No.5 (since deceased) who owned a property
measuring 110 sq. yards situated at village Tihar, Fateh Nagar, New Delhi;
that the mother had acquired the said property, by virtue of sale documents
executed in her favour by the erstwhile owner, Shri Budh Singh on
14.2.1974. While skipping over the nature of the sale documents executed
by the earstwhile owner in favour of Smt. Prasin Kaur, the appellant/plaintiff
simply stated that during her lifetime, the mother was asserting all her rights
as an owner of the suit premises and after the same was purchased, “the
entire family shifted to the said property and thereafter the plaintiff had been
in continuous, open, peaceful and exclusive possession of the same.”
4. On a pointed query raised to learned counsel for the appellant/plaintiff
as to what were the nature of the documents of title that were executed by
the erstwhile owner in favour of Smt. Prasin Kaur, he reluctantly submits
that though it has not been specifically stated anywhere in the plaint, a GPA
was executed in favour of Smt. Prasin Kaur and all the remaining documents
of title, including Agreement to Sell, possession letter and receipt of sale
consideration were executed in favour of the father of the parties
(defendants No.5, since deceased).
5. The plaint goes on to narrate in para 5 that the plaintiff had been
occupying the entire ground floor and half constructed portion of the second
floor of the suit property, while the respondent/defendant No.1 was
occupying the first floor and the remaining unconstructed portion of the
second floor. Smt. Prasin Kaur had expired intestate on 17.8.2000 and on
her demise, all the parties are entitled to an equal share in the suit property,
being class-1 legal heirs.
6. A joint written statement was filed by all the respondents/defendants
in opposition to the suit wherein, the pleas taken in the plaint were traversed.
The respondents/defendants pleaded that the appellant/plaintiff had himself
executed a Disclaimer Deed dated 31.8.2005 in favour of his father five
years prior to the demise of the mother, wherein he had acknowledged the
defendant No.5 to be the absolute owner of the suit property. Given the
above facts, he is estopped from claiming ownership of the suit premises by
setting up an entirely new case that the mother of the parties was the owner
of the suit premises. They went on to clarify that the father of the parties
(deceased/defendant No.5) had purchased the suit property from one Shri
Budh Singh and Smt. Manjit Kaur, by virtue of a set of sale documents in
the form of Agreement to Sell and Payment Receipt, both dated 14.2.1974,
against payment of the sale consideration and they had simultaneously
handed over the actual physical possession thereof to him. In order to
secure and safeguard his interests, the defendant No.5 had got a registered
General Power of Attorney executed in favour of his wife, Smt. Prasin Kaur.
Therefore, there was no question of her acquiring any ownership rights in
the suit premises. It was categorically denied that the appellant/plaintiff was
ever in continuous, open, peaceful and exclusive possession of the suit
property or any part thereof, as was alleged. It was also denied that the
appellant/plaintiff had raised any construction in the suit premises. Instead,
the defendants asserted that the defendant No.5 (deceased father of the
parties) had purchased and constructed the suit premises from his personal
savings in the year 1981, a few years prior to his retirement from a wing of
the Ministry of Defence and as a result, nothing would turn on the mother of
the parties dying intestate and nor would her class-1 legal heirs be entitled to
inherit any part of the suit premises.
7. The main grievance of the appellant/plaintiff is that the trial court had
failed to appreciate that the sale deed dated 22.5.2006 executed by the
defendant No.5 in favour of his son, respondent/defendant No.1, was in fact
a forged and fabricated document. As per the appellant, the
respondent/defendant No.1 had never paid any amount towards the sale
consideration of the suit premises to the defendant No.5 and therefore, a
decree of declaration ought to have been passed, declaring the said
registered document as null and void.
8. Explaining the background in which the defendant No.5 had executed
the sale deed in favour of the respondent/defendant No.1, the defendants had
stated in para 7 of the written statement that the behaviour of the
appellant/plaintiff and his family was always humiliating towards his
parents; upon his retirement, defendant No.5 had started his own business on
the ground floor of the suit premises which the appellant/plaintiff had
usurped taking advantage of his old age; that the defendant No.5 had sold
the suit premises to the respondent/defendant No.1 by executing a registered
sale deed dated 22.5.2006, against valid consideration of Rs.2.00 lacs; that
the appellant/plaintiff had purchased his own property at Fateh Nagar, New
Delhi and had shifted there along with his family in January, 2005, which
was much prior to the execution of the sale deed by the defendant No.5 in
favour of the respondent/defendant No.1; after executing the sale deed, the
appellant/plaintiff had proceeded to execute a Relinquishment Deed on
31.8.2005, relinquishing his share in the suit property in favour of his
father/defendant No.5. This being the position, the respondents/defendants
stated that the appellant/plaintiff was not left with any right, title or interest
in the suit premises, for him to seek any relief in respect thereof.
9. As for the plea taken by the appellant/plaintiff that in the sale deed
22.5.2006 executed by the defendant No.5 in favour of the
respondent/defendant No.1, it had been wrongly mentioned that the mother
of the parties was alive on the date of execution of the said document,
whereas she had expired in the year 2000, the respondents/defendants have
sought to explain the same in para 18 of the written statement by asserting
that in any case, the defendant No.5 was the absolute owner of the suit
property which he had purchased against valid consideration and therefore, a
mere error in the recitals of the sale deed, would not be of any significance.
10. It may be noted that the suit was initially instituted by the
appellant/plaintiff in the High Court in the year 2007. On 8.2.2012, the
following issues were framed : -
“1. Whether the plaintiff is entitled for a decree of declaration, for
declaring the sale deed dated 22.5.2006 and registered as document
No.10610, in additional book No.1, vol. No.13907 at pages No.148 to
155 as null and void and also of no effect? OPP
2. Whether the plaintiff is entitled to be declared as joint owner of
the property bearing No.C-76, New Delhi, admeasuring 100 sq.
Yards, part of Khasra No.537, situated in village Tihar, colony known
and recognized as Fateh Nagar, New Delhi ? OPP
3. Whether the plaintiff is entitled to a decree of permanent
injunction as prayed for? OPP
4. Whether the plaintiff is stopped from challenging his ownership
by setting up a new case of Smt.l Prasin Kaur to be the owner? OPD
5. Whether the plaintiff has no locus-standi to file the present
suit? OPD
6. Relief.”
11. After framing of issues, several opportunities were granted to the
appellant/plaintiff to lead the evidence, but he had failed to take any steps.
On 10.2.2014, counsel for appellant/plaintiff had submitted that it was not
considered necessary to lead any evidence. Counsel for the
respondents/defendants had stated that in view of the appellant/plaintiff
refusing to lead any evidence, they too were not required to adduce any
evidence. In any event, the onus to prove issues No.(1) to (3) was cast on the
appellant/plaintiff.
12. Subsequently, the suit was transferred to the District Court after the
pecuniary jurisdiction of the High Court was enhanced. Vide judgement
dated 7.9.2016, the learned trial court dismissed the suit of the
appellant/plaintiff on the ground that the onus to prove issues No.1, 2 and 3
had been placed on him as he had asserted a right, title and interest in the
suit premises and had sought a decree of declaration, for declaring the sale
deed as null and void but at the same time, he had failed to lead any
evidence in support of his case. Referring to and relying on the provisions
of Sections 101 and 102 of the Indian Evidence Act, 1872 that relate to
burden of proof and prescribe on whom the burden of proof lies, it was held
that unless such a burden is discharged by the party on whom the onus rests
by leading affirmative evidence, the opposite party is not required to prove
his case. It was further observed that the suit for declaration instituted by
the appellant/plaintiff would not be maintainable unless he could prove that
he is entitled to some right in the property and having failed to demonstrate
the same in terms of Section 34 of the Specific Relief Act, 1963 and having
declined to enter the witness box, he would not be entitled to any relief. It
was also noted that contrary to the contention of the appellant/plaintiff, the
respondents/defendants had not made any admissions with regard to the
right, title or interest in respect of the suit premises for any adverse inference
to be drawn against them.
13. Learned counsel for the appellant canvassed that the trial court had
failed to return any findings on the plea that the Sale Deed executed by
defendant No.5 in favour of the respondent No.1/defendant No.1 was a
forged and fabricated document.
14. On perusing the impugned judgment, it transpires that the aforesaid
plea taken by the appellant/plaintiff was duly considered by the learned trial
court that had observed that as the appellant/plaintiff had failed to prove that
the sale deed had been executed in a fraudulent manner, he is not entitled to
a decree of declaration. This Court is of the opinion that the
appellant/plaintiff having failed to enter the witness box without offering
any justification for staying away, the trial court had every reason to
conclude that an adverse inference ought to be drawn against him. It was for
the appellant/plaintiff herein to prove that the Sale Deed executed by the
defendant No.5 in favour of the respondent No.1/defendant No.1 was a
forged and fabricated document and no amount was paid towards the sale
consideration by the respondent No.1. The said plea was not supported by
the appellant/plaintiff as he elected not to enter the witness box. He did not
state on oath the facts that he had pleaded in the plaint before the trial court.
As the appellant avoided the witness box, he could not be cross-examined by
the other side. This by itself is considered sufficient for rejecting the claim
of the appellant/plaintiff that the transaction of sale between the deceased
defendant No.5 and the respondent No.1/defendant No.1 was a fraudulent
transaction.
15. There are a catena of decisions by the Privy Council, the Supreme
Court and several High Courts, where it has been held that ordinarily, it is
the duty of the party to lead the best evidence in his possession, which could
throw light on the issue in controversy and if such material evidence is
withheld, the Court is entitled to draw an adverse inference under Section
114(g) of the Evidence Act. It is also a settled legal position that when a
party to the suit does not appear in the witness box and state his own case on
oath and does not offer himself to be cross-examined by the other side, a
presumption shall arise that the case set up by him is not correct and this
shall give rise to an adverse inference against him [Refer: (i) Murugesam
Pillai vs. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6 (ii) Sardar
Gurbakhsh Singh vs. Gurdial Singh and Anr., AIR 1927 PC 230 (iii) Kirpa
Singh vs. Ajaipal Singh and Ors., AIR 1930 Lah. 1 (iv) Martand
Pandharinath Chaudhari vs. Radhabai Krishnarao Deshmukh, (1930) 32
BOMLR 924, (v) A. Raghavamma and Anr. vs. A. Chenchamma and Anr.,
AIR 1964 SC 136 (vi) Gulla Kharagjit Carpenter vs. Narsingh Nandkishore
Rawat, AIR 1970 MP 225 (vii) Arjun Singh vs. Virender Nath and Anr.,
AIR 1971 All 29 (viii) Bhagwan Dass vs. Bhishan Chand and Ors., AIR
1974 P&H 7 (ix) Musauddin Ahmed vs. State of Assam, AIR 2010 SC
3813 (x) Khatri Hotels Pvt. Ltd. and Anr. vs. UOI and Anr., (2011) 9 SCC
126 and (xi) Union of India vs. Ibrahim Uddin and Anr., (2012) 8 SCC 148.RFA 950/2016 Page 9 of 10
16. In the case in hand, the onus was on the appellant/plaintiff to prove
issues No.1 to 3 by leading cogent evidence. Much less producing any
cogent evidence, the appellant/plaintiff declined to enter the witness box to
state his own case on oath and in those circumstances, the trial court cannot
be faulted in drawing an adverse inference against him.
17. The next circumstance relied on by learned counsel for the appellant
for discarding the Sale Deed dated 22.5.2006 executed by the defendant
No.5 in favour of the respondent No.1/defendant No.1 is that it mentions
that the mother of the parties was alive at the time of execution whereas she
had expired on 17.8.2000. Even if the said position is factually correct, not
much would turn on the date of demise of the mother of the parties, who was
only a general power of attorney holder in relation to the suit premises,
whereas the primary documents of sale, i.e., the Agreement to Sell and the
Payment Receipt, both dated 14.02.1974 were all executed by the erstwhile
joint owners, Sh. Budh Singh and Smt. Manjit Kaur in favour of the
defendant No.5, the deceased father of the parties.
18. Pertinently, the appellant/plaintiff has not challenged the legality or
validity of the said documents of sale executed by the erstwhile owners of
the suit premises in favour of his father, defendant No.5. Nor has he
disputed executing a Disclaimer Deed dated 31.08.2005, in favour of his
father wherein he had acknowledged him to be the owner of the suit
premises. The said document was executed by the appellant/plaintiff five
years after his mother’s demise. The aforesaid document clinches the case in
favour of the respondents. Apart from the above, there is no admission made
by the respondents/defendants in their written statement that would have
gone to the advantage of the appellant/plaintiff for a finding to have been
returned in his favour by the trial court.
19. Having carefully examined the impugned judgment in the light of the
arguments advanced by learned counsel for the appellant, this Court is of the
opinion that the appeal lacks merits. The impugned judgment is sustained
and the appeal is accordingly dismissed in limine, along with the pending
applications.
HIMA KOHLI, J
DECEMBER 06, 2016
pecuniary jurisdiction of the High Court was enhanced. Vide judgement
dated 7.9.2016, the learned trial court dismissed the suit of the
appellant/plaintiff on the ground that the onus to prove issues No.1, 2 and 3
had been placed on him as he had asserted a right, title and interest in the
suit premises and had sought a decree of declaration, for declaring the sale
deed as null and void but at the same time, he had failed to lead any
evidence in support of his case. Referring to and relying on the provisions
of Sections 101 and 102 of the Indian Evidence Act, 1872 that relate to
burden of proof and prescribe on whom the burden of proof lies, it was held
that unless such a burden is discharged by the party on whom the onus rests
by leading affirmative evidence, the opposite party is not required to prove
his case. It was further observed that the suit for declaration instituted by
the appellant/plaintiff would not be maintainable unless he could prove that
he is entitled to some right in the property and having failed to demonstrate
the same in terms of Section 34 of the Specific Relief Act, 1963 and having
declined to enter the witness box, he would not be entitled to any relief. It
was also noted that contrary to the contention of the appellant/plaintiff, the
respondents/defendants had not made any admissions with regard to the
right, title or interest in respect of the suit premises for any adverse inference
to be drawn against them.
13. Learned counsel for the appellant canvassed that the trial court had
failed to return any findings on the plea that the Sale Deed executed by
defendant No.5 in favour of the respondent No.1/defendant No.1 was a
forged and fabricated document.
14. On perusing the impugned judgment, it transpires that the aforesaid
plea taken by the appellant/plaintiff was duly considered by the learned trial
court that had observed that as the appellant/plaintiff had failed to prove that
the sale deed had been executed in a fraudulent manner, he is not entitled to
a decree of declaration. This Court is of the opinion that the
appellant/plaintiff having failed to enter the witness box without offering
any justification for staying away, the trial court had every reason to
conclude that an adverse inference ought to be drawn against him. It was for
the appellant/plaintiff herein to prove that the Sale Deed executed by the
defendant No.5 in favour of the respondent No.1/defendant No.1 was a
forged and fabricated document and no amount was paid towards the sale
consideration by the respondent No.1. The said plea was not supported by
the appellant/plaintiff as he elected not to enter the witness box. He did not
state on oath the facts that he had pleaded in the plaint before the trial court.
As the appellant avoided the witness box, he could not be cross-examined by
the other side. This by itself is considered sufficient for rejecting the claim
of the appellant/plaintiff that the transaction of sale between the deceased
defendant No.5 and the respondent No.1/defendant No.1 was a fraudulent
transaction.
IN THE HIGH COURT OF DELHI AT NEW DELHI
RFA 950/2016
HARBHAJAN SINGH .
V
KULDEEP SINGH & ORS
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
Dated: 06.12.2016.
Citation: AIR 2017 Delhi 52.
1. The appellant seeks setting aside of the judgment and decree dated
7.9.2016 passed by the trial court in a suit for declaration and permanent
injunction instituted by him against his siblings, respondents No.1, 2, 3
(since deceased), respondent No.4 and his father, respondent No.5 (since
deceased) (defendants No.1 to 5 in the trial court).
2. Before considering the submissions made by learned counsel for the
appellant, it is necessary to take note of the factual narrative. The
appellant/plaintiff had instituted the aforesaid suit praying inter alia for
declaring the sale deed dated 22.5.2006 executed by the
respondent/defendant No.5 (father of the parties) in favour of the
respondent/defendant No.1 as null and void and further, for declaring that
the he is the joint owner of the said premises; and asking for a decree of
permanent injunction for restraining the respondents/defendants from
creating any third party interest in the suit premises.
3. The appellant/plaintiff has stated in the suit that he and the
defendants are class-1 heirs of late Smt. Prasin Kaur, mother of the
appellant/plaintiff and the respondents/defendants No.1 to 4 and wife of the
respondent/defendant No.5 (since deceased) who owned a property
measuring 110 sq. yards situated at village Tihar, Fateh Nagar, New Delhi;
that the mother had acquired the said property, by virtue of sale documents
executed in her favour by the erstwhile owner, Shri Budh Singh on
14.2.1974. While skipping over the nature of the sale documents executed
by the earstwhile owner in favour of Smt. Prasin Kaur, the appellant/plaintiff
simply stated that during her lifetime, the mother was asserting all her rights
as an owner of the suit premises and after the same was purchased, “the
entire family shifted to the said property and thereafter the plaintiff had been
in continuous, open, peaceful and exclusive possession of the same.”
4. On a pointed query raised to learned counsel for the appellant/plaintiff
as to what were the nature of the documents of title that were executed by
the erstwhile owner in favour of Smt. Prasin Kaur, he reluctantly submits
that though it has not been specifically stated anywhere in the plaint, a GPA
was executed in favour of Smt. Prasin Kaur and all the remaining documents
of title, including Agreement to Sell, possession letter and receipt of sale
consideration were executed in favour of the father of the parties
(defendants No.5, since deceased).
5. The plaint goes on to narrate in para 5 that the plaintiff had been
occupying the entire ground floor and half constructed portion of the second
floor of the suit property, while the respondent/defendant No.1 was
occupying the first floor and the remaining unconstructed portion of the
second floor. Smt. Prasin Kaur had expired intestate on 17.8.2000 and on
her demise, all the parties are entitled to an equal share in the suit property,
being class-1 legal heirs.
6. A joint written statement was filed by all the respondents/defendants
in opposition to the suit wherein, the pleas taken in the plaint were traversed.
The respondents/defendants pleaded that the appellant/plaintiff had himself
executed a Disclaimer Deed dated 31.8.2005 in favour of his father five
years prior to the demise of the mother, wherein he had acknowledged the
defendant No.5 to be the absolute owner of the suit property. Given the
above facts, he is estopped from claiming ownership of the suit premises by
setting up an entirely new case that the mother of the parties was the owner
of the suit premises. They went on to clarify that the father of the parties
(deceased/defendant No.5) had purchased the suit property from one Shri
Budh Singh and Smt. Manjit Kaur, by virtue of a set of sale documents in
the form of Agreement to Sell and Payment Receipt, both dated 14.2.1974,
against payment of the sale consideration and they had simultaneously
handed over the actual physical possession thereof to him. In order to
secure and safeguard his interests, the defendant No.5 had got a registered
General Power of Attorney executed in favour of his wife, Smt. Prasin Kaur.
Therefore, there was no question of her acquiring any ownership rights in
the suit premises. It was categorically denied that the appellant/plaintiff was
ever in continuous, open, peaceful and exclusive possession of the suit
property or any part thereof, as was alleged. It was also denied that the
appellant/plaintiff had raised any construction in the suit premises. Instead,
the defendants asserted that the defendant No.5 (deceased father of the
parties) had purchased and constructed the suit premises from his personal
savings in the year 1981, a few years prior to his retirement from a wing of
the Ministry of Defence and as a result, nothing would turn on the mother of
the parties dying intestate and nor would her class-1 legal heirs be entitled to
inherit any part of the suit premises.
7. The main grievance of the appellant/plaintiff is that the trial court had
failed to appreciate that the sale deed dated 22.5.2006 executed by the
defendant No.5 in favour of his son, respondent/defendant No.1, was in fact
a forged and fabricated document. As per the appellant, the
respondent/defendant No.1 had never paid any amount towards the sale
consideration of the suit premises to the defendant No.5 and therefore, a
decree of declaration ought to have been passed, declaring the said
registered document as null and void.
8. Explaining the background in which the defendant No.5 had executed
the sale deed in favour of the respondent/defendant No.1, the defendants had
stated in para 7 of the written statement that the behaviour of the
appellant/plaintiff and his family was always humiliating towards his
parents; upon his retirement, defendant No.5 had started his own business on
the ground floor of the suit premises which the appellant/plaintiff had
usurped taking advantage of his old age; that the defendant No.5 had sold
the suit premises to the respondent/defendant No.1 by executing a registered
sale deed dated 22.5.2006, against valid consideration of Rs.2.00 lacs; that
the appellant/plaintiff had purchased his own property at Fateh Nagar, New
Delhi and had shifted there along with his family in January, 2005, which
was much prior to the execution of the sale deed by the defendant No.5 in
favour of the respondent/defendant No.1; after executing the sale deed, the
appellant/plaintiff had proceeded to execute a Relinquishment Deed on
31.8.2005, relinquishing his share in the suit property in favour of his
father/defendant No.5. This being the position, the respondents/defendants
stated that the appellant/plaintiff was not left with any right, title or interest
in the suit premises, for him to seek any relief in respect thereof.
9. As for the plea taken by the appellant/plaintiff that in the sale deed
22.5.2006 executed by the defendant No.5 in favour of the
respondent/defendant No.1, it had been wrongly mentioned that the mother
of the parties was alive on the date of execution of the said document,
whereas she had expired in the year 2000, the respondents/defendants have
sought to explain the same in para 18 of the written statement by asserting
that in any case, the defendant No.5 was the absolute owner of the suit
property which he had purchased against valid consideration and therefore, a
mere error in the recitals of the sale deed, would not be of any significance.
10. It may be noted that the suit was initially instituted by the
appellant/plaintiff in the High Court in the year 2007. On 8.2.2012, the
following issues were framed : -
“1. Whether the plaintiff is entitled for a decree of declaration, for
declaring the sale deed dated 22.5.2006 and registered as document
No.10610, in additional book No.1, vol. No.13907 at pages No.148 to
155 as null and void and also of no effect? OPP
2. Whether the plaintiff is entitled to be declared as joint owner of
the property bearing No.C-76, New Delhi, admeasuring 100 sq.
Yards, part of Khasra No.537, situated in village Tihar, colony known
and recognized as Fateh Nagar, New Delhi ? OPP
3. Whether the plaintiff is entitled to a decree of permanent
injunction as prayed for? OPP
4. Whether the plaintiff is stopped from challenging his ownership
by setting up a new case of Smt.l Prasin Kaur to be the owner? OPD
5. Whether the plaintiff has no locus-standi to file the present
suit? OPD
6. Relief.”
11. After framing of issues, several opportunities were granted to the
appellant/plaintiff to lead the evidence, but he had failed to take any steps.
On 10.2.2014, counsel for appellant/plaintiff had submitted that it was not
considered necessary to lead any evidence. Counsel for the
respondents/defendants had stated that in view of the appellant/plaintiff
refusing to lead any evidence, they too were not required to adduce any
evidence. In any event, the onus to prove issues No.(1) to (3) was cast on the
appellant/plaintiff.
12. Subsequently, the suit was transferred to the District Court after the
pecuniary jurisdiction of the High Court was enhanced. Vide judgement
dated 7.9.2016, the learned trial court dismissed the suit of the
appellant/plaintiff on the ground that the onus to prove issues No.1, 2 and 3
had been placed on him as he had asserted a right, title and interest in the
suit premises and had sought a decree of declaration, for declaring the sale
deed as null and void but at the same time, he had failed to lead any
evidence in support of his case. Referring to and relying on the provisions
of Sections 101 and 102 of the Indian Evidence Act, 1872 that relate to
burden of proof and prescribe on whom the burden of proof lies, it was held
that unless such a burden is discharged by the party on whom the onus rests
by leading affirmative evidence, the opposite party is not required to prove
his case. It was further observed that the suit for declaration instituted by
the appellant/plaintiff would not be maintainable unless he could prove that
he is entitled to some right in the property and having failed to demonstrate
the same in terms of Section 34 of the Specific Relief Act, 1963 and having
declined to enter the witness box, he would not be entitled to any relief. It
was also noted that contrary to the contention of the appellant/plaintiff, the
respondents/defendants had not made any admissions with regard to the
right, title or interest in respect of the suit premises for any adverse inference
to be drawn against them.
13. Learned counsel for the appellant canvassed that the trial court had
failed to return any findings on the plea that the Sale Deed executed by
defendant No.5 in favour of the respondent No.1/defendant No.1 was a
forged and fabricated document.
14. On perusing the impugned judgment, it transpires that the aforesaid
plea taken by the appellant/plaintiff was duly considered by the learned trial
court that had observed that as the appellant/plaintiff had failed to prove that
the sale deed had been executed in a fraudulent manner, he is not entitled to
a decree of declaration. This Court is of the opinion that the
appellant/plaintiff having failed to enter the witness box without offering
any justification for staying away, the trial court had every reason to
conclude that an adverse inference ought to be drawn against him. It was for
the appellant/plaintiff herein to prove that the Sale Deed executed by the
defendant No.5 in favour of the respondent No.1/defendant No.1 was a
forged and fabricated document and no amount was paid towards the sale
consideration by the respondent No.1. The said plea was not supported by
the appellant/plaintiff as he elected not to enter the witness box. He did not
state on oath the facts that he had pleaded in the plaint before the trial court.
As the appellant avoided the witness box, he could not be cross-examined by
the other side. This by itself is considered sufficient for rejecting the claim
of the appellant/plaintiff that the transaction of sale between the deceased
defendant No.5 and the respondent No.1/defendant No.1 was a fraudulent
transaction.
15. There are a catena of decisions by the Privy Council, the Supreme
Court and several High Courts, where it has been held that ordinarily, it is
the duty of the party to lead the best evidence in his possession, which could
throw light on the issue in controversy and if such material evidence is
withheld, the Court is entitled to draw an adverse inference under Section
114(g) of the Evidence Act. It is also a settled legal position that when a
party to the suit does not appear in the witness box and state his own case on
oath and does not offer himself to be cross-examined by the other side, a
presumption shall arise that the case set up by him is not correct and this
shall give rise to an adverse inference against him [Refer: (i) Murugesam
Pillai vs. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6 (ii) Sardar
Gurbakhsh Singh vs. Gurdial Singh and Anr., AIR 1927 PC 230 (iii) Kirpa
Singh vs. Ajaipal Singh and Ors., AIR 1930 Lah. 1 (iv) Martand
Pandharinath Chaudhari vs. Radhabai Krishnarao Deshmukh, (1930) 32
BOMLR 924, (v) A. Raghavamma and Anr. vs. A. Chenchamma and Anr.,
AIR 1964 SC 136 (vi) Gulla Kharagjit Carpenter vs. Narsingh Nandkishore
Rawat, AIR 1970 MP 225 (vii) Arjun Singh vs. Virender Nath and Anr.,
AIR 1971 All 29 (viii) Bhagwan Dass vs. Bhishan Chand and Ors., AIR
1974 P&H 7 (ix) Musauddin Ahmed vs. State of Assam, AIR 2010 SC
3813 (x) Khatri Hotels Pvt. Ltd. and Anr. vs. UOI and Anr., (2011) 9 SCC
126 and (xi) Union of India vs. Ibrahim Uddin and Anr., (2012) 8 SCC 148.RFA 950/2016 Page 9 of 10
16. In the case in hand, the onus was on the appellant/plaintiff to prove
issues No.1 to 3 by leading cogent evidence. Much less producing any
cogent evidence, the appellant/plaintiff declined to enter the witness box to
state his own case on oath and in those circumstances, the trial court cannot
be faulted in drawing an adverse inference against him.
17. The next circumstance relied on by learned counsel for the appellant
for discarding the Sale Deed dated 22.5.2006 executed by the defendant
No.5 in favour of the respondent No.1/defendant No.1 is that it mentions
that the mother of the parties was alive at the time of execution whereas she
had expired on 17.8.2000. Even if the said position is factually correct, not
much would turn on the date of demise of the mother of the parties, who was
only a general power of attorney holder in relation to the suit premises,
whereas the primary documents of sale, i.e., the Agreement to Sell and the
Payment Receipt, both dated 14.02.1974 were all executed by the erstwhile
joint owners, Sh. Budh Singh and Smt. Manjit Kaur in favour of the
defendant No.5, the deceased father of the parties.
18. Pertinently, the appellant/plaintiff has not challenged the legality or
validity of the said documents of sale executed by the erstwhile owners of
the suit premises in favour of his father, defendant No.5. Nor has he
disputed executing a Disclaimer Deed dated 31.08.2005, in favour of his
father wherein he had acknowledged him to be the owner of the suit
premises. The said document was executed by the appellant/plaintiff five
years after his mother’s demise. The aforesaid document clinches the case in
favour of the respondents. Apart from the above, there is no admission made
by the respondents/defendants in their written statement that would have
gone to the advantage of the appellant/plaintiff for a finding to have been
returned in his favour by the trial court.
19. Having carefully examined the impugned judgment in the light of the
arguments advanced by learned counsel for the appellant, this Court is of the
opinion that the appeal lacks merits. The impugned judgment is sustained
and the appeal is accordingly dismissed in limine, along with the pending
applications.
HIMA KOHLI, J
DECEMBER 06, 2016
No comments:
Post a Comment