SAT NARAIN GUPTA Vs. BANSI LAL

JUDGEMENT

(1.) This Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the concurrent findings of facts and law by the Courts below dismissing the suit for possession, mesne profits etc filed by the appellants herein (the plaintiffs in the trial Court). Trial Court dismissed the suit for possession etc by the judgment dated 13.8.2012. The appellate Court dismissed the appeal filed by the present appellants/plaintiffs by its judgment dated 31.8.2013, hence this present second appeal under Section 100 CPC.

(2.) Both the Courts below have dismissed the suit of the plaintiffs on two counts. First is that if the plaintiffs claim that the suit property was part of the property no.ER15 to ER20, Inderpuri, New Delhi-12 which form part of khasra nos.1647 to 1649 and the defendants claim that the suit property was not part of khasra nos.1647 to 1649 but was part of khasra no.1652, then it was upon the appellants/plaintiffs to discharge the onus of proof that the suit property falls in the khasra nos.1647 to 1649 and not in khasra no.1652. Courts below have held that mere filing of site plan showing location of the suit property and the cross-examination of the witnesses of the other side will not necessarily prove that the suit property will form part of khasra nos.1647 to 1649 and not of khasra no. 1652. The Courts below have also held that merely because appellants/plaintiffs proved that they were the owner of the property no.ER-15 to ER-20 forming part of the khasra nos.1647 to 1649 by virtue of earlier decrees obtained against the Delhi Development Authority (DDA), it does not necessarily follow that the defendants are in fact in possession of a part of khasra nos.1647 to 1649 and not khasra no. 1652 as claimed by the appellants/plaintiffs.

(3.) Before me, counsel for the appellants/plaintiffs argues that the Courts below have committed illegality in overlooking the provision of Order 7 Rule 3 CPC which states that in case of a suit relating to immovable property it is sufficient to identify the property by a plan and since the appellants/plaintiffs had proved and exhibited site plan of the suit property the trial Court ought to have held that defendants were in fact in possession of part of khasra nos.1647 to 1649. To buttress this argument, it is also urged that onus of proof of issue no.2 was on the defendants as to whether defendants were in possession of khasra no.1652 and since the defendants failed to prove the issue no.2 and discharge the burden of prove qua this issue no.2, appellants/plaintiffs should succeed by the Courts holding that defendants are in possession of part of khasra nos.1647 to 1649 and not khasra no.1652.