IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 1093 of 2001 Chandra Prakash Bhadri, S/O Sri Surendra Bhadri, R/O Near Bus Stand Tehri Garhwal, District Tehri Garhwal. … Appellant. Versus Tehri Hydro Development Corporation Ltd. Through Sri A.K.Srivastava, Senior Personal Officer (Legal) rehabilitation and prayavaran Unit Bhagirath Puram, Tehri, District Tehri Garhwal. … Respondent. Mr. L.K.Tiwari, Advocate, learned counsel for the appellant. Mr. Shobhit Saharia, Advocate, learned counsel for the respondent. Date November 29, 2011. Hon’ble B.S.Verma, J. (Oral) This appeal is directed against the judgment and decree dated 8-10-2001 passed by the Additional District Judge, Fast Track Court, Tehri Garhwal in Civil Suit No. 4 of 1994, Tehri Hydro Development Corporation Limited Vs. Chandra Prakash Bhadri, whereby the suit of the respondent has been decreed and the defendant-appellant has been directed to pay an amount of Rs. 1,75,592/- along with interest @ 12% per annum from 1-8-1990 till the date payment to the plaintiff-respondent. 2. Briefly stated the facts giving rise to the present appeal are that the plaintiff-respondent filed a suit bearing Civil Suit No. 4 of 1994 against the defendant-appellant for recovery of amount of compensation, which was given under the rehabilitation policy for displacement in lieu of the house of the appellant. It has been alleged in the plaint that the appellant had received the compensation on 1-8-1990 by mis-representation. It is also alleged that the Suit No. 6 of 1987 Yatayat Paryatan Vikas Sahkari Sangh, which was consolidated with Suit No. 40 of 1989 pending in the court of the District Judge Tehri Garhwal, the property involved in the said suit are the same for which compensation was obtained. It is also alleged in the plaint that the defendant submitted an application before the rehabilitation unit of the plaintiff that the survey sheet of his house standing in Ward No. 1 was not prepared 2 and that the defendant had not received compensation with respect thereto. The plaintiff believing on the assertion of the defendant got prepared survey sheet and the valuation of the house in question. The defendant filed his affidavits on 23-7-1990 and 27-7- 1990 stating his satisfaction to the valuation made by the plaintiff and prayed for making payment thereof. Consequently an amount of Rs. 1,75,592-00 was made to the defendant by Cheque No. UMD-129664 dated 1-8-1990. Later-on, it came to the notice of the plaintiff that the valuation of the house in question had already been prepared in Survey Sheet No. 133A, Sri Surendra Datt Son of Sri Nathhilal, Chandra Prakash son of Surendra Datt, Gopal Datt S/O Shiv Ram, Radhakrishna son of Kewal Ram and subsequently, the same was converted into survey sheet no. 133B. According to the plaintiff, an appeal no. 3 of 1984 is pending before the Co- operative Tribunal and Suit No. 40 of 1989 Surendra Datt Bhadri Vs. Yatayat Evam Paryatan Vikas Sangh Limited is pending in the Court of the District Judge Tehri Garhwal. The plaintiff has therefore filed the suit for recovery of the amount of Rs. 1,75,592- 00 along with 12% interest thereon against the defendant. 3. The defendant contested the suit by filing his written statement and denied the plaint allegations on all material allegations. In the additional pleas, it has been asserted that the suit is not legally maintainable as not being signed and presented by any authorised signatory of the plaintiff; that the property for which the compensation was paid to the defendant is a different property from that of the property involved in S.C.C. Suit No. 6 of 1987 and that the house of the father of the defendant-appellant is a separate property and is situated at a separate place; that the suit is barred by limitation as the payment of compensation had been made to the defendant on 1-8-1990; that the Original Suit No. 40 of 1989 pertains to the property of survey sheet nos. 133A and 133B but the compensation had been paid to the defendant in respect of separate property pertaining to survey sheet no. 153 and that no cause of action has arisen to the plaintiff to bring the present suit against the 3 defendant and that the defendant is entitled to get special cost under Section 35B of the C.P.C. 4. On the pleadings of the parties, the learned trial Court has framed following Issues in the suit:- ISSUES 1. Whether the disputed house does not belong to the defendant and whether the defendant has received the compensation by playing fraud? If so, its effect? 2. Whether the amount is payable to the plaintiff? 3. Any other relief? 4. Whether the suit is barred by limitation as alleged in the written statement? 5. Whether the plaint is signed by any authorised signatory of the T.H.D.C.? If not, its effect? 5. The plaintiff-respondent in support of its case, has examined Mr. T.K.Khosa, Senior Manager, THDC Tehri as P.W.1. The defendant on the other hand has examined himself as D.W.1 Chandra Prakash Bhadri and one Dharam Singh Negi, the then Amin of T.H.D.C as D.W.2, who has prepared the survey sheet No. 153. 6. So far as the documentary evidence led by the parties is concerned, only photocopies of the documents including copies of survey sheets have been filed by the plaintiff, except one postal receipt, which alone is a public document. There is no endorsement of admission and denial on the photocopies of the documents. 7. After hearing the parties and after perusing the evidence led by them, the learned trial Court has held on Issue No.1 that the defendant had not constructed any house of his own and he was unemployed and that the defendant had obtained the compensation by fraud and misrepresentation. On Issue No.2 it has been held that the plaintiff is entitled to recover the amount of compensation from the defendant. On Issue No. 4, the learned trial 4 Court has held that the suit is not barred by limitation. On issue no. 5, the Issue has been decided against the defendant holding that the Senior Personal Officer of THDC was duly authorised to file the suit and conduct the case. On Issue no.3 it has been held that the suit is liable to be decreed and consequently, the suit has been decreed by judgment and decree dated 8-10-2001, which gave rise to the present appeal. 8. In this appeal, it has been contended by the learned counsel for the appellant that the findings recorded by the learned trial Court are not based on proper appraisal of evidence led by the defendant-appellant. It has been submitted that the trial court has erred in holding that the house pertaining to survey sheet no. 133A is the same house for which compensation was paid to the defendant pertaining to survey sheet no. 153. 9. I have heard learned counsel for the parties, considered the evidence led in the suit by the parties and perused the material placed before this Court including the lower Court record. 10. At the outset, it may be mentioned that in the trial Court, the plaintiff has not filed a single document in original except a postal receipt, referred to above. All those documents are phtostat copies of the documents. Genuineness of none of the documents filed by the plaintiff had not been admitted from the side of the defendants as provided under Section 58 of the Indian Evidence Act. It is well settled that Photostat copies of the documents cannot be read in evidence, except where such documents are proved by oral evidence of a competent witness. 11. The plaintiff-respondent has examined Mr. T.K.Khosa as P.W.1. P.W.1 is the Senior Manager of T.H.D.C. Tehri. He has stated in his examination-in-chief that he remained posted from 1991 to 1996 at Tehri and since 1991 to 1993, he held post of Deputy Manager and from 1993 to 1996 he was Manager. He further stated that he used to look-after the valuation of urban 5 rehabilitation and payment. The file of Chandra Prakash Bhadri pertaining to payment of Yatayat came to him along with application. He found that one other file was already in existence in the name of Chandra Prakash and others in respect of survey sheet no. 133A/133B. He further stated that the matter of survey sheet no. 133A/133B was in dispute and the matter was pending in the court. On inquiry, P.W.1 came to know that the file of survey sheet no. 153 pertaining of Benanp land belongs to Chandra Prakash Bhadri and he had received payment of a sum of Rs. 1,75,592/- and an F.I.R. was lodged after inquiry and he reported that payment has wrongly been made to him. This is all what P.W.1 has said in his examination in chief. This witness has no- where stated that the defendant had played a fraud or by mis- representation payment was taken by him. He has nowhere stated that survey sheet no. 133A or 133B and survey sheet no. 153 pertain to one and the same house belonging to defendant Chandra Prakash Bhadri. This witness was cross-examined on behalf of the defendant-appellant. In his cross-examination, P.W.1 has clearly admitted that the Assistant Engineer had not reported as to whose house is standing at the spot. He showed his ignorance and said that he has no knowledge whether the house belonged to Chandra Prakash Bhadri or not whose payment was made to him. P.W.1 also admitted that he cannot say whether the Assistant Engineer had not reported that the house of Chandra Prakash Bhadri was constructed over Benap land. In paragraph no. 3 of his cross- examination, P.W.1 T.K.Khosa has clearly stated that payments in respect of houses constructed over Benap land were made under the rehabilitation policy of T.H.D.C. He further admitted that the land of survey sheet no. 133 and that of survey sheet no. 153 is recorded in the name of State of U.P. He went on saying that before making payment, affidavits are obtained from the persons to whom payments are to be made that no payment had been made to them earlier. This witness further admitted that no payment was made so far in respect of survey sheet no. 133A and survey sheet no.133B. 6 12. Thus, from the testimony of P.W.1 T.K.Khosa, who is the owner Officer of the plaintiff-T.H.D.C. it is ample clear that this witness has not at all substantiated the case of the plaintiff that Chandra Prakash Bhadri had played any fraud or misrepresentation on the plaintiff for getting payment of compensation of Rs. 1,75,592/- pertaining to the house of survey sheet no. 153. This witness has taken a lame stand to establish that the property falling under survey sheet nos. 133A, 133B and 153 is one and the same building, but he has utterly failed to prove this fact because this witness in paragraph no. 2 that there are separate maps of these three survey sheets. He has given a very shaky statement in support of the case of the plaintiff, which does not inspire any confidence. 13. Now coming to the testimony of defendant Chandra Prakash Bhadri, the defendant has examined himself as D.W.1, Chandra Prakash. D.W.1 in his examination-in-chief has stated that he had constructed the house in question from his own resources and there is no co-sharer. The property was acquired for construction of Tehri Dam. He has stated that one Amin, Junior Engineer and A.E. of T.H.D.C. came to make inspection of his house and they prepared survey sheet no. 153 of his house and the valuation was shown Rs. 1,75,592 for the purposes of payment, which was received by him on 30-8-1990. D.W.1 further stated that at a little distance from his house towards down, there is separate house of his father Surendra Datt and he constructed that house in the year 1974 and since 1978, his father is running a hotel therein. D.W.1 has clearly stated that in respect of the house of his father, there is a dispute pending in the court with Yatayat Paryatan Sangh and there is stay order of the Allahabad High Court. The survey sheet of the house of his father is Survey Sheet Nos. 133A and 133B. This witness D.W.1 Chandra Prakash Bhadri was cross- examined from the side of the plaintiff, but nothing could be brought from his cross-examination that this witness has not deposed the true facts in his statement on oath. The testimony of D.W.1 remained controverted on the point that there are separate 7 houses belonging to the defendant and his house on spot and that separate survey sheets have been prepared by the plaintiff THDC in respect of separate properties. 14. Besides above, there is one strong circumstance against the plaintiff, which goes to the root of the matter. It is the admitted case of the plaintiff that in respect of survey sheet no. 133A and 133B there is a dispute with Yatayat Paryatan Sangh pending before the Court, while no such dispute has ever arisen in respect of property of survey sheet no. 153 on which there was a house of the defendant and payment was made to him. On this ground, it cannot be said the survey sheet no. 133A or 133B and survey sheet no. 153 prepared by the officers of the plaintiff belong to one and the same property. 15. In addition to the evidence of D.W.1, the defendant has examined Dharam Singh Negi, the then Amin of T.H.D.C. as D.W.2. D.W.2 in his examination-in-chief has stated on oath that he was posted as Amin in the year 1990 in THDC Tehri and he prepared survey sheet of Ward No.1 of Tehri Town including that of the defendant. He has further stated that he did not prepare survey sheet of the property of father of defendant. He has proved paper no. 48-C which is survey sheet of the property of defendant and the same has been exhibited as Ext. A-1. He has stated that the house of father of the defendant is situated at a little distance from the house of Chandra Prakash Bhadri. In his cross-examination, he has stated that defendant Chandra Prakash alone was living in his house. He denied that entire family of defendant had been residing in that house of which survey sheet was prepared by him. He also stated that the distance between the house of defendant and that of his father is about 8-10 feet. From the side of the plaintiff, no suggestion was either put to the D.W.1 Chandra Prakash or D.W.2 that the compensation had been received by the defendant by playing fraud or mis-representation. 8 16. I have perused the finding recorded by the learned trial Court on Issue No.1. The burden of proof was upon the plaintiff that the house in question did not belong to defendant and that the defendant had received payment by fraud or misrepresentation. From the above discussion of the evidence led by both the parties, I am of the considered view that the plaintiff has utterly failed to establish that defendant had received compensation by fraud or mis-representation, but no evidence worth the name was led by the plaintiff to substantiate its case. The oral evidence led by the P.W.1 as discussed above is also does not help the plaintiff-respondent. The evidence of P.W.1 is very shaky and does not inspire any confidence, while the defendant has adduced cogent and reliable evidence to prove that the survey sheet no. 153 pertains to his own house though constructed on Benap land and that house is separate to the house of his father. The finding recorded by the trial Court on Issue Nos. 1 and 2 are against the evidence on record. Moreover, in this suit, the plaintiff has neither filed any documents in original, except postal receipt nor has filed certified copy of any document. The plaintiff only filed photostat copies, which ought to have been proved by competent oral evidence, but the same was not done. The documents were not admitted on behalf of the defendant- appellant, therefore, the photostat copies could not have been read in evidence. The oral evidence of P.W.1 T.K. Khosa is not convincing and reliable, rather the same is found to be shaky, while the evidence led on behalf of the appellant-defendant is concrete and supported by an independent witness D.W.2 Dharam Singh Negi. The trial court has wrongly shifted the burden upon the defendant on Issue No.1. The burden of proof was upon the plaintiff-respondent to establish that the compensation was received by fraud or misrepresentation. 17. I, therefore, hold that the defendant has received compensation in respect of his house falling under survey sheet no. 153 and that plaintiff has completely failed to establish that compensation was received by the defendant by fraud or 9 misrepresentation and that the plaintiff is not entitled to recover the amount in question from the defendant-appellant. Issue nos. 1 and 2 are decided against the plaintiff-respondent. 18. The trial Court on Issue No. 4 has held that the suit is not barred by limitation. In this appeal, the appellant-defendant has not seriously challenged this finding. Therefore, the finding recorded on Issue No.3 does not call for any interference in this appeal. 19. So far as the finding on Issue No.5 is concerned, I find that the plaint was signed and verified by a competent signatory, duly authorised by the Chairman/Managing Director of THDC. The suit is not incompetent on this ground. Issue no. 5 has been rightly answered against the defendant-appellant. 20. After having considered the evidence led by the parties, I am of the view that the learned trial Court has erred in decreeing the suit of the plaintiff-respondent, as discussed above. The plaintiff-respondent is not entitled to recover amount of Rs. 1,75,592/- along with interest as prayed for by the plaintiff- respondent. The suit of the plaintiff-respondent is liable to be dismissed. Issue no. 3 is answered accordingly. 21. For the reasons and discussion above, the appeal deserves to be allowed and the suit of the plaintiff-respondent is liable to be dismissed. 22. The appeal is allowed. The judgment and decree dated 8-10-2001/17-10-2001 passed by the Additional District Judge, Fast Track Court Tehri Garhwal is set aside. The suit bearing O.S. No.4 of 1994 filed by the plaintiff-respondent is dismissed. Costs easy. (B.S.Verma, J.) RCP