BIRENDER SINGH Vs. DELHI CEMETERIES COMMITTEE

JUDGEMENT

(1.) THIS appeal has impugned the judgment and decree dated 22.11.2008 which had endorsed the finding of the trial dated 16.9.2005 whereby the suit filed by the plaintiff Delhi Cemeteries Committee through Mr.A.B.Goodwin its Chairman seeking possession of the suit property i.e. comprising of two rooms, a kitchen, bath room in a part of the cemetery located at 3, Prithvi Raj Road, New Delhi had been decreed in his favour.

(2.) THE case of the plaintiff is that the plaintiff no.1 is the custodian of the suit property; plaintiff no.2 is the Chairman. Late Jordan Singh was acting as a Care- Taker and has been serving plaintiff no.1; he was permitted to use the suit property in the said capacity. Jordan Singh expired in 1991; thereafter the defendants have unauthorizedly and illegally occupied the suit property; in spite of requests and legal notices dated 07.9.1992, 23.12.1992 and 22.3.1993 the suit property has not been vacated. Suit was accordingly filed.

(3.) TWO witnesses had been examined on behalf of the plaintiff. They had been examined and discharged; pursuant thereto an application had been filed for recalling the said witnesses. PW-2 had been thereafter cross-examined and discharged but PW-1 could not cross-examined. The order permitting the recall of the said witness had been passed on 15.8.2003 which had categorically stated that only one opportunity would be granted to the defendant to cross-examine the witnesses. Perusal of the record shows otherwise. It evidences that on 8.3.2003 and again on 24.3.2004 counsel for the defendant had sought adjournment to cross- examine the witnesses of the plaintiff. Time had been granted for 02.6.2004. Meanwhile in the intervening period an application had been filed for early hearing on which date record shows that both the PWs were present but the said application had been dismissed. On 02.6.2004 PW-2 had been cross-examined and discharged. Nothing has been recorded in this order dated 2.6.2004 to support the submission now made before this court that PW-1 was not present on that day and that is why he was not cross-examined; no such objection has been recorded in the order sheet. Evidence of the plaintiff stood closed vide a separate statement; even at that point defendant did not urge or object that PW-1 yet remained to be cross-examined.