Delhi District Court
Naresh Kumar (Deceased) Through Lrs vs . Deepak Solanki & Ors. on 18 December, 2018
1
Naresh Kumar (deceased) through LRs vs. Deepak Solanki & Ors.
IN THE COURT OF VIVEK KUMAR AGARWAL, CIVIL JUDGE 07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Civil Suit No: 96570/16
CNR No. : DLCT030002822005
Date of Institution: 07.04.2005
Date of Decision: 18.12.2018
Naresh Kumar (deceased) through LR's
(i) Smt. Kamlesh Devi (widow)
(ii) Ravi Kumar
(iii) Ruchika (daughter)
All R/o V.P.O. Karala, Delhi81.
...................Plaintiffs.
Versus
1. Sh. Deepak Solanki S/o Sh. Mahender Singh,
R/o 566, Pooth Kalan, Delhi.
2. Sh. Jagbir Singh, S.I.
Police Post Shahbad Dairy, Delhi
............Defendants.
SUIT FOR DECLARATION, PERMANENT AND MANDATORY
INJUNCTION
Present: None for plaintiff.
None for defendant no. 1.
Defendant no. 2 deleted from array of parties vod 07.04.05.
JUDGMENT:
1) Present suit has been filed by the plaintiff seeking declaration that the documents in possession of the defendant no. 1 and sale deed with respect to the land measuring 1 bigha, 4 biswa out of khasra no. 22/9, situated in village Pansali, Delhi (hereinafter called as suit property) Civil Suit No: 96570/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 2 Naresh Kumar (deceased) through LRs vs. Deepak Solanki & Ors.
are null and void and again mandatory has been sought directing defendants to produce all the documents in respect of suit property before the court and seeking permanent injunction restraining the defendants from dispossessing the plaintiff from suit property. Plaintiff's version :
2) Succinctly, the case of plaintiff is that he alongwith his deceased brother Jai Prakash, three sisters namely Darshna Devi, Savitri and Prem and mother Smt. Santosh are recorded as bhumidar of the land comprised in khasra no. 22/9, measuring 1 bigha 4 biswas situated within the revenue estate of village Pansali, Delhi alongwith the land comprised in khasra nos. 6/25(416), 7/21(416), 11/1/1(012), 14/15/1(315), 10/2(413), 11/1(18), 13/10(310), 14/14/1(11), all situated within the revenue estate of village Pansali, Delhi.
3) It is submitted that out of aforesaid land, the plaintiff agreed to sell the land measuring 1 bigha 4 biswa out of khasra no. 22/9 to one B.L. Goel s/o Hari Chand and execucted a sale deed in the year 198788, however, said sale deed was conditional as per the settlement between the plaintiff and B.L. Goel to the effect that mutation was to be sanctioned in his favour and therefore no consideration was paid to the plaintiff or other bhumidars and possession was also not given to B.L. Goel. It is further stated that the said sale deed was in violation of Sec. 33 of Delhi Land Reforms Act and therefore, mutation could not be carried and as per the understanding between plaintiff and B.L. Goel, it was decided that sale deed would not be used for any purpose and was not a valid document. That the possession of plaintiff and othe bhumidars has been recorded in the said property in khasra girdawari since 1987 till the land was acquired in the year 2000 by an award under provisions of Land Acquisition Act, however, the possession Civil Suit No: 96570/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 3 Naresh Kumar (deceased) through LRs vs. Deepak Solanki & Ors.
was not taken over by the concerned department and plaintiff also obtained a stay order from Hon'ble High Court.
4) It is further submitted that out of said land, plaintiff sold 200 sq. yds.
to one Meera Devi w/o Ram Singh by execution of sale agreement / GPA and put her on the plot and she has constructed her house and using the same and remaining portion of 100 sq. yds. is in possession of plaintiff and built up on the spot. It is stated that defendant claimed certain portion of land out of khasra no. 22/9, however, he is not in possession of any part of land and therefore, plaintiff is unable to show the exact portion of land to which defendant is claiming. It is stated that defendant no.1 approached the plaintiff with his document, when the land was acquired and plaintiff advised him not to use these documents as executant of the said document namely B.L. Goel was never bhumidar of the land and no possession was handed over to him. It is further alleged that defendant no. 1 in collusion of defendant no. 2 got lodged a false complaint in P.S. Bawana and put pressure upon the plaintiff to part with possession of land measuring 600 sq. yds. That on 20.01.05, father of defendant no. 1 namely Mahender Singh threatened the plaintiff at suit property for forcible dispossession and again defendant no. 2 sent a police constable and threatened him of dire consequences, if possession was not given to defendant no. 1. the plaintiff demanded copies of documents, relied upon by the defendant no. 1, but no copy was supplied with and hence the present suit for declaration and injunction.
Version of defendant no. 1:
5) Upon notice being issued, the defendant no. 1 appeared and filed his WS. In the WS, preliminary objections were raised interalia of non maintainability and nonjoinder of necessary party. It is stated that Civil Suit No: 96570/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 4 Naresh Kumar (deceased) through LRs vs. Deepak Solanki & Ors.
B.L. Goel, owner of the suit property sold area measuring 500 sq. yds. to defendant vide two separate documents including GPA, Agreement to Sell, Affidavit, Will and receipt dt. 07.03.1995 and since then suit property has been under his peaceful possession and plaintiff has no right in the suit property. That plaintiff after selling the property to B.L. Goel also sold the same to Satpal, Sanjay and Meera Devi without any rights for which a criminal complaint has been lodged against him. In reply on merits, factum of plaintiff and his brothers and sisters being the bhumidar of suit property is stated to be matter of record, however, it is denied that B.L. Goel did not purchase the suit property from the plaintiff. It is further stated that land in question was in possession of answering defendant till date of its acquisition. It is stated that defendant being the rightful owner of the suit property is entitled for compensation of the same. All the other averments of the plaint are denied with request to dismiss the suit.
6) It is pertinent to mention that no notice was issued to defendant no. 2 for want to notice u/s 140 of DP Act and accordingly, it is to be taken that defendant no. 2 was deleted from array of parties. Again, during pendency of the suit the plaintiff expired and his LRs were impleaded vide order dt. 22.07.11. It is further pertinent to mention that alongwith the suit an injunction application u/o XXXIX Rule 1 and 2 CPC was also moved, which was allowed vide order dt. 28.05.05 and defendant was restrained from dispossessing the plaintiff from suit property.
7) From the pleadings of the parties following issues are framed vide order dt. 26.07.05 :
1. Whether the plaintiff is entitled for decree of declaration as prayed for ? OPP Civil Suit No: 96570/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 5 Naresh Kumar (deceased) through LRs vs. Deepak Solanki & Ors.
2. Whether the plaintiff is entitled for decree of mandatory injunction as prayed for ? OPP
3. Whether the plaintiff is entitled for decree of permanent injunction as prayed for ? OPP
4. Whether the plaintiff is not recorded bhoomidar and he has already sold the property to B.L. Goel, If so, to what effect? OPD
5. Whether the defendant has purchased the suit land from B.L.Goel by legal documents and have right, title or interest in it? OPD
6. Whether the plaintiff has fraudulently sold the suit land to many other persons after selling the same to B.L. Goel as per facts pleaded in the preliminary objection no. 4 ? OPD
7. Relief.
8) Thereafter, matter was fixed for evidence on behalf of plaintiff and plaintiff himself stepped into the witness box as PW1 by tendering his affidavit Ex. P1. Again, plaintiff has also examined some other witnesses namely Sultan Singh as PW2, one Patwari from the DC office as PW3, one Patwari from record room of district North Alipur as PW4 and one Patwari of village Pansali as PW5. The plaintiff and PW2 were not cross examined on behalf of defendant, however, remaining witnesses were duly cross examinwed. The plaintiff has also tendered certain documents including site plan as Ex. PW1, Khatoni as Mark A and Mark, photographs as Ex. PW2 to Ex. PW1/13 and CD as Ex. PW1/14. Again, PW4 proved the record of Khasra girdawari of the suit property from the year 199798 to 200405 as Ex. PW4/1 (colly) and PW5 proved the revenue record as Ex. PW5/1 (Colly) and khasra girdawari of suit property from the year 200506 to 200708 as Ex.
Civil Suit No: 96570/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 6 Naresh Kumar (deceased) through LRs vs. Deepak Solanki & Ors.
PW5/2 (colly). Thereafter, evidence was closed on behalf of LRs of plaintiff by court order dt. 24.05.14.
9) On the other hand, defendant no. 1 himself stepped in to the witness box as DW1 by tendering his affidavit Ex. DW1/A and also tendered some documents as Ex. DW1/1 to Ex. DW1/5 including the certified copies of the documents pertaining to two plots dt. 07.03.15, certified copy of sale deed in question dt. 22.07.1988, certified copy of bail order dt. 29.06.06 and copy of FIR as Mark A. He was duly cross examined by counsel for plaintiff and thereafter, evidence of defendant no. 1 was closed by his counsel vide separate statement dt. 07.09.17.
10) Arguments advanced by counsel for plaintiff as well as contesting defendant no. 1 have been heard. Again written submission filed on behalf of plaintiff as well as defendant no. 1 have been perused. File has been carefully and minutely perused and my issuewise findings with reasons thereof are as under : ISSUE No. 4 :
11) The issue pertaining to the main defence of the defendant and related to the basic dispute is taken firstly for consideration before other issues. The burden of proof to prove this issue was upon the defendant no. 1. It is argued by counsel for contesting defendant that as reflected from the sale deed Ex. DW1/3, executed by plaintiff alongwith his brother and sisters in favour of B.L. Goel, the suit property was sold by the plaintiff alongwith his brothers and sisters for sale consideration of Rs. 15,000/ and the actual physical possession of the said land was handed over to B.L.Goel. It is further submitted that the plaintiffs have relied upon the mutation entry in their favour, however, it is settled law that mutation does not confer any title and only purpose of mutation is for the purpose of assessment of revenue and therefore, the Civil Suit No: 96570/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 7 Naresh Kumar (deceased) through LRs vs. Deepak Solanki & Ors.
claim of plaintiffs only on the basis of mutation is not proved and rather from the sale deed it is established that the property in question was sold to B.L.Goel, who subsequently sold the same to the defendant by executing the documents, placed on record as Ex. DW1/1(colly).
12) On the other hand, the counsel for plaintiff has submitted the averments of the plaint stating that the sale deed executed in favour of B.L. Goel was considered as not effective as per the oral understanding of the plaintiff and B.L. Goel for the reason that no mutation was sanctioned in favour of B.L. Goel as sale being violative of Sec. 33 of DLR Act. It is submitted that the plaintiff, his brother and sisters were occupying the land less than 8 standard acers and accordingly, the sale of property in question in favour of B.L. Goel, of the land 1 bigha 4 biswa was in violation of Sec. 33 of DLR Act and consequently, the said sale deed is void and accordingly, the documents executed by B.L. Goel in favour of defendant are also of no effect as B.L. Goel had no right or title in the suit property and accordingly, it is contended that the suit property is still owned by the plaintiff, his brother and sisters and same is reflected from the revenue record produced by PW4 and PW5.
13) Heard. Sale deed in question, certified copy of which is placed on record as Ex. DW1/3, has been perused minutely and it is very clear from the contents of said document that sale deed was executed for sale consideration of Rs. 15,000/ with respect to suit property for the land measuring 1 bigha 4 biswa and that actual physical possession of land was delivered to the vendee on the spot. Accordingly, the plea of the plaintiff in the plaint that no sale consideration was paid and that possession was not handed over to B.L. Goel is against the contents of said document, execution of which is not disputed by the plaintiff.
Civil Suit No: 96570/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 8 Naresh Kumar (deceased) through LRs vs. Deepak Solanki & Ors.
Now, as per the provision of Section 91 and 92 of Indian Evidence Act, plaintiff can not be allowed to controvert the contents of a document unless specific evidence is led to rebut the same or to establish that document was executed in suspicious circumstances. No such evidence has been led on behalf of plaintiff and therefore, once the plaintiff has admitted the execution of said document by himself, his plea regarding sale consideration can not be accepted.
14) Now coming to the plea of violation of Sec. 33 of DLR Act, it is to observe that as per the clause of said sale deed itself, the vendors did not contravene section 33 of Delhi Land Reform Act, 1954. Accordingly, the plaintiff is again required to establish how the sale deed was in violation of said provision of law. The contention on behalf of plaintiff is that the plaintiff, his brother and sisters were occupying the land as bhumidars less than 8 standard acers and as sale was not of the entire land, same is in violation of Sec. 33 of DLR Act, however, at the same time the plaintiff is also required to prove that suit land involved in the said sale deed was the 'land' as defined u/s 3(13) of DLR Act. The relevant extract of said provision runs as under: "3 Definitions In this Act, unless the context otherwise requires
1. .................................
2. .................................
..................................
13 "land" except in sections 23 and 24, means land held or occupied for purpose connected with agriculture, Civil Suit No: 96570/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 9 Naresh Kumar (deceased) through LRs vs. Deepak Solanki & Ors.
horticulture or animal husbandry including pisciculture and poultry farming and includes
(a). Buildings appurtenant thereto,
(b). village abadis,
(c). grovelands,
(d). lands for village pasture or land covered by water and used for growing singharas and other produce or land in the bed of a river and used for casual or occasional cultivation, but does not include Land occupied by building in belts or areas adjacent to Delhi town, which the Chief Commissioner may by a notification in the Official Gazette declare as an acquisition thereto;
14..................................................."
15) The scope of said provision was discussed by Hon'ble High Court of Delhi in case of "Nb Singh (Huf) vs M/S Perfexa Solutions Pvt. Ltd" on 29 May, 2009 and observed as follows : "Before I proceed further, it needs to be noticed that this Court in the case of Ram Lubbaya Kapoor Versus J R Chawla and Others, 1986 RLR 432 has held that any land before it can be termed as "land" for the purpose of Delhi Land Reforms Act, 1954 must be held or occupied for purposes connected with agriculture, horticulture or animal husbandry etc. and if the land is not used for said purposes, it ceases to be land for the purpose of Delhi Land Reforms Act, 1954. It has been further held that a Bhumidhar is bound not only to retain possession of his land but also use it for specified purposes at all material times if he is to continue to be a Bhumidhar."
Civil Suit No: 96570/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 10 Naresh Kumar (deceased) through LRs vs. Deepak Solanki & Ors.
16) A similar view was taken by this Court in Narain Singh and Another Versus Financial Commissioner in WP(C) No.670 of 1995 decided on July 14, 2008."
17) It is manifest from the above judgments that a property ceases to be an agricultural property if it is not used for agricultural purposes. Now coming to the documents placed on record by plaintiff, it is to observe that the plaintiff has only placed the khatoni of the relevant year i.e. 198889 but not khasra girdawari to establish if said land was being used for purpose of agricultural only at the time when it was sold to B.L.Goel. The use of property for agricultural purposes is certainly in question from the khasra girdwari of the year 199899 i.e. Ex. PW4/1, which shows the property situated in khasra no. 22/9 (14) as gair mumkin, which means that it was not capable for agricultural purposes. No explanation has been given on behalf of the plaintiff for not filing the khasra girdwari of the year 198889 and accordingly, the adverse inference has to be drawn against the plaintiff as per provision of Sec. 114(g) of Indian Evidence Act for withholding the best evidence and not filing of khasra girdwari of the year 198889 has to be taken against the plaintiff only and rather it can be safely presumed that even in the year 198889 said land was gair mumkin as it is the case of the plaintiff only that the suit land is built up property and therefore, I come to the conclusion that the land involved in the sale deed was not the 'land' as defined u/s 3(13) of DLR Act and consequently, the bar of Sec. 33 of DLR Act also does not come into picture.
18) In view of aforesaid discussion, it is to be concluded that though plaintiff is being recorded as bhumidar in the revenue record, however, he has already sold the suit property to B.L. Goel and said sale is not in contravention of Sec. 33 of DLR Act. As rightly argued Civil Suit No: 96570/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 11 Naresh Kumar (deceased) through LRs vs. Deepak Solanki & Ors.
by counsel for defendant the mutation does not confer any title in favor of a person, the plaintiff cannot seek advantage of the same. Accordingly, this issue is decided against the plaintiff and in favour of the defendant.
ISSUE NO. 5 :
19) Again, the issue pertaining to the defence of the defendant and related to the basic dispute is taken firstly for consideration before other issues. The onus to prove this issue is upon the defendant and defendant has relied upon the documents allegedly executed by B.L. Goel in his favour, placed on record as Ex. DW1/1 (colly) and Ex. DW1/2 (colly) including the GPA, Will, deed of agreement, affidavit and receipt. It is argued that these documents were executed by B.L. Goel, who was owner of the said property by virtue of sale deed Ex. DW1/3 in his favour and therefore, the defendant became owner of the said properties.
20) It is to observe that the effect of the documents including the GPA, Will, deed of agreement, affidavit and receipt for transfer of immovable property was discussed at length by Hon'ble Apex Court in case of Suraj Lamp & Industries (P) ... vs State Of Haryana & Anr on 11 October, 2011 and it was held as follows : "We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. ................ Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title Civil Suit No: 96570/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 12 Naresh Kumar (deceased) through LRs vs. Deepak Solanki & Ors.
nor create any interest in an immovable property."
21) Accordingly, in view of this legal position, it is to be concluded that the documents allegedly executed by B.L. Goel in favour of defendant do not transfer or convey the title in favour of defendant and can not be recognized as valid mode of transfer of the property in question as not being completed and not being in nature of sale deed, which is to be compulsorily registered under Sec. 17 of Indian Registration Act, however, the defendant has the interest in the suit property only to the extent of the effect of these documents and is at liberty to seek appropriate remedy on the basis of the said documents. In view of aforesaid discussion, issue no. 5 is disposed off accordingly. ISSUE No. 6 :
22) The burden to prove this issue was upon the defendant. As observed in findings of issue no. 4, it is clear that the plaintiff had sold the suit land to B.L.Goel, however, there is no evidence on record, led by defendant that this was the same property, which was sold to many other persons as stated in preliminary objection no. 4 including Satpal, Sanjay and Meera Devi. Accordingly, this issue is decided in negative against the defendant.
ISSUE no. 1 :
23) The burden to prove this issue was upon the plaintiff. The case of plaintiff is that as B.L. Goel had no right or interest in the suit property, documents executed by B.L. Goel in favour of defendant are null and void and again that the sale deed in respect of suit property allegedly executed by B.L. Goel may be also declared as null and void and not binding upon the plaintiff.
24) It is to observe that as discussed in findings of issue no. 4, the plea of plaintiff that no right was transferred to B.L. Goel has been already Civil Suit No: 96570/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 13 Naresh Kumar (deceased) through LRs vs. Deepak Solanki & Ors.
negated and it is established that suit property was sold by plaintiff alongwith his brother and sisters to B.L. Goel. Accordingly, the plaintiff is not entitled for any declaration qua documents executed by B.L. Goel in favour of defendant, however, the effect of these documents is only to the limited extent as discussed in finding of issue no. 5.
25) Accordingly, this issue is decided in negative against the plaintiff.
ISSUE No. 226) The burden to prove this issue was again upon the plaintiff. The only prayer on behalf of plaintiff was that defendant may be directed to produce all the relevant documents pertaining to suit property before the court. During his evidence the defendant has tendered several documents as mentioned above. That apart the plaintiff has not pressed any other document which was not produced by the defendant. Accordingly, this issue is again decided in favour of defendant and against the plaintiff.
ISSUE No. 327) The burden to prove this issue was upon the plaintiff. Reliance has been made upon the crossexamination of defendant / DW1, wherein he has duly admitted that at present the suit property is in possession of the plaintiff. On perusal of the crossexamination of DW1 dt. 26.05.16, it is very clear that the defendant has categorically admitted that at present the suit property is in possession of plaintiff. Again, the defendant has also admitted the site plan filed by the plaintiff as Ex. PW1/1 and moreover, from the revenue record including khasra girdwari i.e. Ex. PW4/1 (colly), it is further clear that the plaintiff alongwith his brother and sisters has been in possession of the property situated in khasra no. 22/9. Accordingly, it is clearly established from Civil Suit No: 96570/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi 14 Naresh Kumar (deceased) through LRs vs. Deepak Solanki & Ors.
the admission of the defendant as well as from the documents that the plaintiff has been in settled possession of the suit property for longtime. It is settled proportion in law that the person in settled possession of a property can not be dispossessed except by following due procedure of law. Accordingly, the plaintiff is certainly entitled for injunction restraining the defendant from dispossessing the plaintiff from the suit property except in due course of law. Consequently, issue no. 3 is decided in favour of plaintiff and against the defendant. ISSUE No. 7 Relief :
28) In view of the findings of all the above said issues, suit of the plaintiff is hereby partly decreed to the effect that defendant is restrained from dispossessing the plaintiff from the suit property except in due course of law. No other relief is granted. Again, in the given facts, no order as to costs.
29) Decree sheet be prepared accordingly and file be consigned to Record
Digitally
signed by
Room after due compliance. VIVEK VIVEK KUMAR
AGARWAL
KUMAR Date:
AGARWAL 2018.12.20
10:57:59
+0530
Pronounced in open court: (Vivek Kumar Agarwal)
Dated: 18.12.2018 Civil Judge07, Central,
Tis Hazari Courts, Delhi
Note : This Judgment contains fourteen pages and all the pages have been checked and signed by me.
(Vivek Kumar Agarwal) Civil Judge07, Central, Tis Hazari Courts, Delhi Civil Suit No: 96570/16 (Vivek Kumar Agarwal) CJ07(C)/THC/Delhi