Full Judgment
* HIGH COURT OF DELHI AT NEW DELHI + R.S.A. No.185 of 2013 Decided on :
12. h December, 2013 PRATAP SINGH & ORS. Through: …… Appellants Mr. A.K. Bajpai & Mr. M.F. Khan, Advocates. Versus UNION OF INDIA & ORS. …… Respondents CORAM: HON’BLE MR. JUSTICE V.K. SHALI V.K. SHALI, J.
(ORAL) 1. This is a regular second appeal filed by the appellants under Section 100 CPC against the order dated 28.5.2013 passed by the learned Additional District Judge dismissing the appeal of the appellants being R.C.A. No.87/12/12.
2. Briefly stated that facts of the case are that the plaintiffs/appellants who were originally 13 in number filed a suit bearing No.238/2006 in the year 1985 for permanent injunction against Union of India, Delhi Administration, Delhi Development Authority and The Secretary, Land and Building. The case of the appellants was that they were in occupation and absolute possession of agricultural land as tenants bearing khasra No.125 measuring 9 bighas and 18 biswas situated in the revenue estate of Dhakka, Delhi. It was alleged that the joint share of the plaintiff Nos.1 to 6, 7 to 9 and 10 to 13 as in the original plaint was to the extent of 1/5th each. It was alleged that they were threatened to be dispossessed by the respondents without due process of law and accordingly, they filed the suit against their dispossession from the said khasra. The suit was contested by the DDA which took the plea that the disputed land was transferred to the DDA vide notification No.F-8 (49)/63 L&H by the respondent No.4, Land Acquisition Authority. It was alleged that the appellants were unauthorized occupants and, therefore, they were not entitled to the land in question.
3. On the basis of these pleadings, issues were struck and parties were permitted to adduce evidence and the suit was decreed by the Civil Judge in favour of the appellants holding that they were proved to be in settled possession from the year 1946 to 1983. The trial court also took into consideration that the suit land was a Government land and, therefore, the appellants being in settled possession could be dispossessed only except in accordance with due process of law. Yet ,the suit was dismissed on merits on 7.9.2012 holding that the plaintiffs/appellants are not entitled to injunction.
4. The appellants feeling aggrieved by the aforesaid judgment, preferred an appeal being R.C.A. No.87/12/12 and the appellate court affirmed the finding of the trial court and dismissed the appeal on 28.5.2013. While dismissing the appeal of the appellants, the court also took note of the fact that there was no evidence proved on record by the appellants that they were in possession of the suit and moreover, none of the appellants had appeared in the witness box and consequently, the court observed in the absence of any appellants having testified before the court, the suit could not have been decreed.
5. Still not feeling satisfied, the appellants have filed the present regular second appeal. In this appeal, the learned counsel for the appellants has raised the question that it is not necessary for any of the appellant to enter into the witness box in order to prove his case. He has accordingly stated that this raises a substantial question of law as one of the grounds for dismissal of the appeal of the appellants by the first appellate court is that none of the appellants had entered into the witness box. In this regard, in support of his submissions, the learned counsel has relied upon Om Parkash vs.Inder Kaur; 156 (2009) DLT292(DB) and Durga Dass Banka vs. Ajit Singh & Ors.; R.S.A. No.149/2011.
6. I have gone through the said two judgments. The Supreme Court in case titled Man Kaur (dead) by LRs. Vs. Hartar Singh Sangha; (2010) 10 SCC512has clearly laid down that a plaintiff cannot succeed in a suit unless and until he appears in the witness box and testifies before the court with regard to the averments made in the plaint. The only exception to this is that an attorney can appear as a witness where he is closely related and is privy to the transaction as well as knows the averments made in the plaint that he can, in a given situation, testify as a witness.
7. In the instant case, the suit was filed by as many as 13 plaintiffs; some of whom have now expired and are represented by the legal heirs but none of the original plaintiffs have appeared in the witness box. They have sought to prove their possession of the land in question through two witnesses of the village. One of the witness, PW-1, is Jagdish, who was examined in 1995 and, supporting the case of the appellants, has stated in his examination that the father of the appellants and Shankar Singh used to cultivate the land since 1946 and even prior to that. It may be pertinent to refer to the cross-examination of the said witness wherein he expressed his ignorance with regard to the factum of acquisition of the land or the entries made in the revenue record. Moreover, the age of the witness is given as 57 years in 1995, that means around the time in 1946 or prior thereto, his age was just 9 years. He could hardly be aware of the fact as to whether the land in question was being cultivated by the predecessorin-interest of the present appellants even prior to 1946 or not. Therefore, this clearly shows that the testimony of PW-1 is not credit worthy as it seems to be based merely on hearsay rather than actual state of affairs existing at that time. Similar is the testimony of the eye witness from the villager. It is very strange that when the appellants or their predecessorin-interest who were originally 13 in number and had chosen to file the suit, none of them could examine himself as witness in support of his case or their case which was very essential. I, therefore, feel that this question as to whether the proof of the appellants being in possession or not, was essentially a question of fact which had to be decided in their favour only on the examination of any of the appellants. The non-examination of the appellants and the consequences thereof cannot be treated to be a question of law or much less a substantial question of law.
8. Even if we ignore this fact, the two judgments which have been relied upon by the appellants in support of their case to contend that the non-examination of any of the witness is not vital to the case of the appellants are not applicable to the facts of the present case. In Om Parkash’s case (supra), the facts were that it was a case under the Delhi Rent Control Act which is totally different statute and the eviction petition was filed on the ground of bona fide requirement. In Dugra Dass’s case (supra), the appellant had not appeared although the suit was filed by him. He had filed his affidavit by way of evidence subjecting him to partial cross-examination but his cross-examination could not be concluded as he was taken seriously ill being an old man of 85 years of age. It was in such a contingency that the High Court observed that the non-examination of the appellant in the said case was not fatal and he could testify through an attorney, who happens to be his son.
9. In the instant case, there is no such factual similarity or no attorney of any of the appellant has testified saying that he has the information about the actual possession of the appellants in respect of the land in question. I, therefore, feel that the present appeal does not raise any question of law much less a substantial question of law. Accordingly, the same is dismissed. V.K. SHALI, J.
DECEMBER12 2013 ‘AA’