Brij Lal vs Ram Pratap

G.R. Luthra, J.—The present regular second appeal is directed against a judgment and decree dated Oct. 4, 1978 of Shri S.C. Jain, Additional District Judge, Delhi dismissing an appeal with costs against judgment and decree of a Sub Judge.

The dispute is regarding a piece of land shown as green in the plan Ext. PW7/1 situated at Krishna Nagar. G.T. Road, Shahdara, Delhi. According to Ram Partap respondent (hereinafter referred to as the plaintiff) the said piece of land belonged to him but the same was illegally taken possession of by Brij Lal appellant (hereinafter referred to as the defendant).

One Daulat Ram was the owner of a property known as ''Roopvatika'' bearing Municipal No. 423/424 situated at G.T. Road, Delhi Shahdra, Delhi. The said Daulat Ram became insolvent and his assets including the aforesaid property vested in the official receiver. The aforesaid property was sold by the official receiver under the orders of Insolvency Court and was purchased by the plaintiff by registered sale deed dated 26th Nov., 1960, certified copy of which is Ext. PW11/1. The case of the plaintiff is that the land in dispute formed part of the aforesaid property, but that defendant took illegal possession of the same and dumped coal dust on a portion thereof. He, therefore brought a suit on Oct. 16, 1961 for recovery of possession of the land in dispute.

Defendant contested the suit. He denied that the land in dispute belonged to the plaintiff. He stated that the land belonged to him and that he had purchased the same along with some other land in all measuring 1064 sq. yds. vide sale deed dated Aug., 10, 1959 registered on Aug., 25, 1959, copy of which is Ext. D. 3. He also raised preliminary objections that the suit was not valued properly for purposes of court-fee and jurisdiction, that the valuation should have been Rs. 6,000/- and that his address was wrongly given in the plaint.

Trial proceeded on the following issues:--

Is the plaintiff the owner of the property in suit? OPP

Is the plaintiff entitled to the relief prayed for?

Relief.

First of all suit was dismissed by Shri H.C. Gupta, Sub Judge, I Class, Delhi. Plaintiff went in appeal which was accepted by the Court of Shri O.N. Vohra, Additional District Judge, Delhi (as his Lordship then was). He set aside judgment and decree of Shri H.C. Gupta and remanded the case for trial with directions that suitable person be appointed as Local Commissioner for taking measurements on the spot and reporting if there was any encroachment of the property purchased by the plaintiff. Local Commissioner submitted his report dated March 18, 1969 in the trial Court. He stated that he had taken measurements and that in his opinion land in question belonged to the plaintiff. Defendant filed objections which were dealt along with merits of the case by Mrs. Kanwal Indar, Sub Judge, Delhi and the suit was decreed with costs. Defendant went in appeal which was dismissed by the impugned judgment and decree.

Present appeal was admitted by M.L. Jain, J., on the following "substantial questions of law":--

(1) Whether the documents in the suit have been correctly interpreted in order to determine the correct boundaries of the plaintiffs property ?

(2) Whether the lower appellate Court was justified in basing its conclusion partly on the report of the Local Commissioner?

Before proceeding further it is necessary to know some facts which appear from the documents placed on record by the parties and in respect of which there is no dispute. Certified copy of the sale deed Ext. PW14/1 dated Sept. 5, 1943 shows that one Daulat Ram was the owner of a large piece of land by way of purchase by means of sale deed dated March 22, 1947 executed by Kalu Mal in favour of the former and that the former sold a portion measuring 1064 sq. yds. of the same in favour of Malak Chand, Gulab Chand, Kapur Chand and Jamuna Lal. Property which was sold vide Exhibit PW14/1 is shown as red in plan Ext PW14/2. That land measuring 1064 sq. yds. was then sold by heirs and successors of the aforesaid Malak Chand etc. to defendant vide sale deed dated Aug., 10, 1959, certified copy of which is Ext. D.3. Daulat Ram, as it appears, was still holding lot of land on a portion of which he built property known as Roop Vatika. He then became insolvent and plaintiff purchased that Roop Vatika by means of sale deed dated Nov. 26, 1960, certified copy of which is Ext. PW11/1. That sale deed mentioned that the property sold in favour of the plaintiff was shown in red in plan attached with the said deed. However, plaintiff did not produce any copy of that plan but defendant produced and relied upon a certified copy of that plan which is Ext. D.2.

It appears from the above that at one time it was Daulat Ram who was owner of property which now belongs to both the parties. Plaintiff had to show that the land in question was included within the property purchased by him vide sale deed copy of which is Ext. PW11/1 coupled with plan copy of which is Ext. D.2 and that further the said property did not form part of the sale deed Ext. D.3 in favour of the defendant. That is so because when both sale deeds were from the same owner Daulat Ram (sale deed in favour of defendant being from (purchasers from Daulat Ram and the sale deed in favour of the plaintiff by Official Receiver representing his estate), one earlier in time, which was in favour of the defendant, had to be given preference over the sale deed of the plaintiff with the result that not only that the plaintiff had to prove that the land in question was positively included in his sale deed but did not form part of the sale deed in favour of the defendant. Such an approach, however, was not made by both trial and lower appellate Courts. Rather keenness was to interpret sale deed in favour of the plaintiff in as liberal manner favouring him as could be possible without having any regard to the fact if as a result of that approach the defendant was left with his land measuring 1064 sq. yds. which be had purchased vide sale deed Ext. D.3.

In the sale deed Ext. PW11/1 in favour of the plaintiff it is mentioned that the property sold to him was shown in red in plan attached with the said deed. In the plan built property and such space which is within the boundary walls is shown in red. It was also stated in the said sale deed that the property so sold contained such vacant site which was within boundary walls because relevant words in Urdu for describing the portion are "Peshan Arazi Uztada Va Diwar Parda Sarasar", which meant that vacant land sold along with built portion was included within the continuous boundary wall. Land in question is not within the boundary wall and, therefore, according to the plan Ext. D.2 and the aforesaid description in the sale deed was not sold to the plaintiff. However, both trial and the lower appellate Courts remarked that boundaries of the property sold to the plaintiff as given in the sale deed supported claim of the plaintiff, that according to law those boundaries should be given preference as against the aforesaid plan and description and that on that basis the plaintiff was entitled to land in dispute. Boundaries as given in the sale deed are as under:--

East: Property and vacant site in possession of M/s. Alfred Ltd.

West: Road

North: Other property of Insolvent

South: (Referring to Daulat Ram)

It was held that the boundary showed that towards west it was land up to road which was sold and that land in question fell in between built portion and road and that therefore, same was purchased by the plaintiff. That was done notwithstanding that by that method defendant was left with less than 1064 sq. yds. purchased by him earlier to the sale in favour of the plaintiff.

For the purpose of understanding as to how, in what manner and on what basis the conclusions were arrived at by the trial Court and the lower appellate Court, we have to start with some relevant observations in the judgment of remand of case for re-decision of Shri O.N. Vohra, Additional District Judge (as his Lordship then was). These observations are as under:--

In view of what has been discussed above, I hold that the learned Sub Judge below was in error in ignoring the evidence produced by the plaintiff on the ground that it was negative evidence and was again in error in giving preference to what was mentioned in the plan Ext D.2, in preference to the boundaries given in sale deed Ext. PW11/1. The perusal of the plan Ext PW14/2 shows that towards the East of the plot purchased by the defendant, there is service lane of the width of 10 feet and toward the West of this service lane, is plot No. 25. Towards the north of this plot is a road 15 feet wide. This shows that with the help of these pucca boundaries, there can be no difficulty if proper steps for demarcation of this property are taken. In regard to the property purchased by the plaintiff, which is towards the East of this property there is a road towards the west, according to the deed of sale Exhibit PW14/1. In para 8 of the written statement filed by the defendant it has been clearly admitted by the defendant that towards the West of Kothi Roop Vatika, there is road. In view of this admission which is otherwise proved to be correct, on the basis of the sale deed Ext. PW14/1 the western boundary of Kothi Roop Vatika is also capable of demarcation. In a case of this type the factum as well as the extent of encroachment made cannot be determined without appointment of a suitable person as Local Commissioner who should visit the spot and carry out measurements in accordance with the well-established rules of demarcation.

On account of aforesaid directions, as already mentioned Shri T.C. Sethi was appointed as Local Commissioner, who gave his report dated March 16, 1969. Local Commissioner in support of his conclusions in favour of the plaintiff relied upon finding of Shri O.N. Vohra and his relevant remarks read as under:--

Admittedly there is 10'' road between the property of the plaintiff known as Kothi Roop Vatika and the plot of the defendant 73-A. This fact appears in the judgment of the appellate Court and on the admission of the defendant in para 8 of his written statement filed in the Court. It is thus clear that the property of the plaintiff extends up to this 10'' road and this road is also the Eastern boundary of the land plot of the defendant.

Defendant filed objections against the aforesaid report. Learned Sub Judge also placed reliance on the aforesaid observations of Shri O.N. Vohra and observed that those were binding on the parties. She took it for granted that there was admission on the part of the defendant in para 8 of the written statement that there was a road in between the properties purchased by the parties and that on that basis report of the Local Commissioner was correct. Accordingly she dismissed objections against the report of the Local Commissioner and accepted the same. She therefore, decreed the suit. The lower appellate Court substantially endorsed the view expressed by the trial Court.

So one of the points for determination is, if it was rightly held by Shri O.N. Vohra that defendant admitted about the existence of a road in between the properties of the parties. The learned counsel for defendant rightly assailed the correctness of that observation. Para 8 of the plaint reads as under:

That on the western side of the said Kothi ''Roopvatika'' beyond the green portion shown in the plan filed with the plaint, there is road according to the approved plan of the Municipal Corporation of Delhi.

Reply of the same was given in para 8 of the written statement (which was referred to in the observations of Shri O.N. Vohra) reads as under:

Para No. 8 is wrong and same is emphatically denied. There is a road intervening between the Kothi "Roopvatika" and the land in dispute which belongs to the defendant. In fact the road according to the approved plan of the Municipal Corporation of Delhi passes partly by the Bungalow ''Roop Vatika'' and partly through the Kothi, "Roop Vatika" as the plaintiff has converted that part of the road into his own use illegally by including it in his Kothi. The land in dispute is outside the boundary wall of the Kothi "Roop Vatika".

Following are clear from a reading of the aforesaid allegations in the plaint and its reply in the written statement:--

(a) Defendant was not referring to any road existing on the spot. He was referring to a road shown in the approved plan of the Municipal Corporation of Delhi. Mention of road in the said plan occurred in para 8 of the plaint and therefore, the mention of the road in para 8 of the written statement must be ascribed to whatever is stated in the plaint. Reason is that we have to read both plaint and written statement together with a view to see as to what was alleged and what was replied. Hence there was no admission at all that any road existed on the spot which Shri O.N. Vohra had held to be admittedly existing between properties of the parties.

(b) There is no admission at all that any road existed between property of the parties, even if we take it for granted that mention of the road was with respect to the facts existing on spot and not with respect to the approved plan of the Municipal Corporation of Delhi. Relevant words in the written statement have been underlined. They talk of existence of road between Kothi Roop Vatika and the land in dispute. Those words do not say that there was any road in between land in dispute and the land belonging to the defendant. It is only if it were said that a road existed in between land in dispute and the land of the defendant that it could be said that there was an admission that the land in dispute was sandwiched between building purchased by the plaintiff and a road.

Hence there is no admission of the defendant in respect of existence of the road and it was wrong on the part of the Local Commissioner, trial as well as lower appellate Courts, to have placed reliance on the same for giving finding against the defendant.

Plan prepared by the Local Commissioner shows that if land in dispute is included in the property purchased by the plaintiff and further 10 ft. wide road is also left at the spot defendant is left with a plot measuring 60 ft. 6 inches wide and 114 ft long. Area of that plot works out to 6897 sq. ft. or about 766 sq. yds., whereas area purchased by the defendant was 1064 sq. yds. Width, on the basis of area of 1064 sq. yds. and length at 114 ft., works out to 84 ft. as against 60 ft. 6 inches left on the spot vide plan prepared by the Local Commissioner. As already mentioned it is sale deed in favour of the defendant, being earlier in time, which is to be given preference as against the sale deed in favour of the plaintiff and therefore, any conclusion by which defendant is left with less land cannot be said to be correct. Aforesaid conclusion of the Courts below is further shown to be wrong on account of the fact (as already mentioned) that the plan attached with the sale deed in favour of the plaintiff proves to be so.

Learned counsel for the plaintiff argued that on comparison of the measurements on the spot taken by the Local Commissioner and incorporated in the plan attached with his report, with the one derived from the plan Ext. PW14/2 showing land purchased by the defendant, it was clear that the claim of the plaintiff was correct. First of all he pointed out that the distance between eastern boundary of the land purchased by the defendant and junction of 15 ft. and 20 ft. wide roads, as per scale (48 ft. = 1 inch) of the plan Ext. PW14/2 worked out to near about 44 ft. He further pointed out that that was exactly the distance found on the spot between the aforesaid junction of the roads and the eastern boundary of the land of the defendant shown in the plan attached with the report of the Local Commissioner. In that respect learned counsel also relied upon following portion of the report of the Local Commissioner:--

This fact is supported by the sale deed Ext. PW14/1 dated 7-9-1943. The plan Exhibit PW14/2 attached with the sale deed executed by Shri Daulat Ram in the year 1943 in favour of Manak Chand and others from whom the defendant Brij Lal purchased the plot shows that it is prepared at a scale of 48'' = 1". The distance from the 20'' wide road off G.T. Road meeting the 15'' wide road running parallel to the G.T. Road and to the North of the Kothi Roop Vatika and the land of the defendant is near about 44''. There were found no boundary wall or marks of foundation on the Western side of the defendant''s land. The area of the plot of the defendant, however, is shown to be 1064 sq. yds. in the plan Ext. PW14/2.

It is thus clear that the defendant has encroached upon 36'', 2" East to West on the Northern side of the Kothi Roop Vatika including 10 wide road.

The learned counsel concluded that it was, therefore, clear that whatever had been shown in the plan attached with the report of the Local Commissioner was absolutely correct and that report of the Local Commissioner to the effect that the defendant had encroached upon the land in dispute was also correct.

Aforesaid argument of the learned counsel proceeds on the assumption that whatever is shown in the plan Ext. PW14/2 is in accordance with the scale of 48'' = 1". Actually there is no basis for that assumption. The words on the top of that plan Ext. PW14/2 rather indicate that scale was only of land shown in red which was sold vide sale deed Ext PW14/1. Those words read as under:

Plan of plot No. A/73 shown in red in Kishan Nagar Colony (Civil Lines, Delhi Shahdra) At village Jhimillah, Delhi Province) sold to L. Manak Chand, Gulab Chand, Kapoor Chand Munlal s/o Suraj Lal Badware, Delhi. Scale 48 = 1".

It is apparent from the aforesaid words that the scale aforesaid refers to plot No. A/73 shown in red and does not refer to the distance between that plot and the junction of two roads 15 ft and 20 ft. wide. Further it is a matter of common knowledge that plans attached with the sale deeds give scale of plots sold and they neither contain measurements of the surroundings nor give seals from which measurements of the same can be derived.

It is well settled that Local Commissioner can be deputed to do a particular job, for instance inspection of spot or carrying out measurements and a Court cannot delegate its own powers to decide any dispute between the parties. In the present case job of the Local Commissioner was to carry out measurements on the spot and prepare plan on the basis of the said measurements. He did not have jurisdiction to take into consideration what had been held by the appellate Court previously. Further, he actually decided the whole dispute between the parties by way of holding that land in dispute belonged to the plaintiff and defendant had encroached upon the same. On that account entire report of the Local Commissioner was not worthy of acceptance.

The learned counsel for the plaintiff urged that this Court could not go into findings of facts and could decide only questions of law, that there were concurrent findings of fact of two Courts below, that the land in dispute was owned by the plaintiff on account of purchase vide sale deed, copy of which was Ext. PW11/1, that the defendant had encroached upon the same and that, therefore, that finding of fact could not be disturbed by this Court. According to him no question of law was involved. While admitting the appeal two questions of law, reproduced above, were framed. Learned counsel urged that plaintiff was not bound by the framing of those questions of law because that order was passed in the absence of the plaintiff at the time of admission of appeal of the defendant. In support of the proposition that only questions of law can be gone into at the time of second appeal and finding of facts cannot be disturbed, learned counsel relied upon two judgments of Supreme Court in Orient Distributors Vs. Bank of India Ltd. and Others, and in Karbalai Begum Vs. Mohd. Sayeed and Another, .

There is no doubt that concurrent findings of fact cannot be disturbed in second appeal and only questions of law can be gone into. But it is well settled that interpretation of documents involves question of law. In this case there was question of interpretation of para 8 of the written statement of the defendant and it was to be seen if defendant had made any admission as to the existence of road forming boundary of land in dispute taken together with property purchased by the plaintiff. Further there was question of interpretation of the sale deed of the plaintiff and the plan attached with the same. Then mere was question of law involved if the sale deed in favour of the defendant should be given preference as against the sale deed in favour of the plaintiff on the ground of former being earlier in time. Also there was point of law involved if Local Commissioner had the jurisdiction to decide a dispute between the parties on the basis of judgment of Shri O.N. Vohra or any documents entrusted to him or which had come within his knowledge otherwise. In the present case Local Commissioner relied upon observations of ''Appellate Court'' (referring to judgment of Shri O.N. Vohra). He also took into consideration sale deed in favour of the plaintiff and the sale deed regarding land purchased by the defendant. As aforesaid substantial questions of law were involved present appeal could be entertained and decided on the basis of decisions of those questions of law. Further questions of law framed at the time of admission of appeal did arise and had to be decided. For these reasons argument of the learned counsel for the plaintiff has no force.

It is apparent from the above that the conclusions of both the trial and lower appellate Court as well as Local Commissioner were based on the wrong interpretation of documents, that both the Courts had relied upon report of the Local Commissioner which itself is wrong and that therefore, both questions of law framed at the time of admission of the appeal stand decided in favour of the defendant

Now the question is whether the matter should be decided finally by this Court or it should be remanded to the lower appellate Court. Section 103 of the CPC lays down the procedure. That reads as under:--

In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--

(a) which has not been determined by the lower appellate Court or both the Court of first instance and the lower appellate Court, or

(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in S. 100.

In the present case although oral evidence was produced the same was not referred to at the time of arguments except that statement of Shri Jagat Dhiesh Bhargava, Official Receiver was relied upon to the effect that the property sold to the plaintiff was mentioned in the sale deed Ext. PW11/1 and the plan Ext. D.2. I have already held above that there was wrong interpretation of the documents by both trial and lower appellate Court on account of some observations of Shri O.N. Vohra, Additional District Judge, Delhi (as his Lordship then was) and reliance was placed on a report of the Local Commissioner which is wrong. On the basis of correct interpretation of the documentary evidence the case of the plaintiff does not Hand proved and rather it is proved from the sale deed in favour of the defendant that be is the owner of the land in dispute. Under these circumstances suit can be finally disposed of. I, therefore, instead of remand of the case, reverse the findings of Courts below and find that the plaintiff was not owner of fee land in dispute. On this basis. I hereby accept the appeal, set aside judgments and decrees of both the trial and lower appellate Court and dismiss the suit of the plaintiff wife costs throughout.