CHAND RAM Vs. NARENDER KUMAR

JUDGEMENT

(1.) THIS appeal has impugned the judgment and decree dated 22.11.2008 which had endorsed the findings of the trial Judge dated 21.11.2005 whereby the suit filed by the plaintiff Chand Ram through his legal heirs seeking a permanent and mandatory injunction against four defendants had been dismissed. Defendant No. 4 was the Municipal Corporation of Delhi (MCD).

(2.) THE case of the plaintiff is that he had purchased plot No. 26-A, B Block, Sarai Pipal Thala Extension, Adarsh Nagar, Delhi measuring 150 square yards comprising of one room, latrine, bathroom, handpump and boundary wall for defendant No. 4. Relevant documents to the said effect had been executed. THE said documents had been proved before the trial Court as Ex. PW-2/A to Ex. PW-2/C. THEy were an agreement to sell, power of attorney, Will etc. In the trial court, the trial Judge was of the view that only the photocopies of the said documents had been produced yet the appellate court had examined these documents and had exhibited them holding that they are originals. THE said documents had been read in evidence. THE impugned judgment had noted that the said documents are not reliable as the text of the said documents was contrary to the version set up by the plaintiff. THE plaintiff had himself not come into the witness box. His legal representative/power of attorney had been examined as PW-3. PW-3 in his cross-examination had stated that his father had constructed the structure on the suit property after purchasing it from one Shri Narender Singh. Documents of purchase by the plaintiff are Ex. PW-2/A to Ex. PW-2/C. Ex. PW-2/A categorically recites that the plaintiff had purchased plot No. 26-A, B Block, Sarai Pipal Thala Extension, Adarsh Nagar, Delhi comprising of one room, latrine, bathroom, handpump and boundary wall built on it. THE impugned judgment had noted that the oral evidence of PW-3 was clearly in contrast with the documentary evidence Ex. PW-2/A to Ex. PW-2/C adduced by him; his version was not believed. THE supporting statements of PW-1 & PW-2 had also not been believed by both the courts below. Per contra, defendant No. 4 had examined an Executive Engineer from the MCD as DW-4. THE said witness had reiterated that the lay out plan was the correct lay out plan of the location of the suit property. THE said document had been proved as Ex. DW-4/1. No cross-examination had been affected either of DW-1 or DW-4 on this count that this document is not a true copy of the layout plan. DW-4 who was the Engineer from the MCD was an official witness. He had deposed that as per this layout plan, there should be a lane of 30 ft. at the site but on inspection, it is found to be only 10-12 ft; 20 ft of the same had been encroached by the property owners of both sides and this encroachment had been noted by him; he had further deposed that the plaintiff Chand Ram was a encroacher. This witness had no axe to grind. He was an official witness who have come on behalf of defendant No. 4. Apart from the fact that no cross-examination had been done on the authenticity and veracity of the layout plan which had been proved in the version of DW-3 and endorsed by DW-4, even otherwise the plaintiff through his own testimony i.e. PW-3 had destroyed his case. His oral evidence was contrary to the documents relied upon by him.

(3.) SUBSTANTIAL questions of law have been formulated at page 4 of the body of the appeal. They read as under:-