Delhi District Court
Sh. Channo Lal vs Sh. Balwan Singh on 22 September, 2014
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE10
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 563/08
Unique ID No. 02401C1138692008
MEMO OF PARTIES
Sh. Channo Lal
S/o Late Sh. Mihi Lal
R/o N560, Mangol Puri,
Delhi110083
...........Plaintiff
VERSUS
Sh. Balwan Singh
Head Constable In Delhi Police,
Presently Posted At P.S. Janakpuri,
Delhi
ALSO AT:
Plot No. 112 Satyam Vihar PhaseII,
Village Baprola, Nangloi,
Delhi
..........Defendant
Date of institution of the Suit: 28.08.2008
Date on which judgment was reserved: 15.09.2014
Date of pronouncement of Judgment: 22.09.2014
SUIT FOR POSSESSION
Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 1/19
JUDGMENT:
1. The plaintiff has filed the present suit seeking recovery of possession of the suit premises i.e. plot no. 112 admeasuring 50 square yards out of khasra no.33/5 situated in the village Baprola, Delhi41 abadi known as Satyam Vihar2 as shown in red in the site plan annexed to the suit (hereafter referred to as the suit plot).
2. It is the case of plaintiff that he is a poor person doing the work of cobbler. In the year 1999 the plaintiff purchased a plot from its previous owner Sh. Mohd. Anis S/o of Sh. Hamidullah. Certain documents i.e. Registered GPA, Registered Will and Notarized Receipt were executed on 04/06/1999. The plaintiff constructed a boundary wall and also installed a gate and put his lock on the same. The price of the plot increased with time and some antisocial elements had entered in the suit property. In the year 2003 one Sh. Dharampal started claiming to be the owner of the suit plot and also forcibly took over the possession of the same with the musclemen of the area. The plaintiff duly informed this fact to the dealer through whom he purchased the plot. The matter was consequently settled in a Panchayat and the Panchayat unanimously decided after going through the relevant papers that the suit plot belonged to the plaintiff and the plaintiff was then again given the possession of the suit plot.
Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 2/19
3. The plaintiff further avers that in the year 2004 the Pradhan of the area alloted the plot numbers and plot of the plaintiff was given the number 112. In the year 2006 again the said Dharampal tried to dispossess the plaintiff and take possession of the plot. The plaintiff made a complaint to the local police i.e. PS Nangloi, Delhi and consequently investigation was done in that regard and all local property dealers were called and their statements were recorded by the police and it was proved that the plaintiff was the absolute owner of the suit plot and hence he was handed over the possession of the same by the local police. On 01.03.2008 one Sh. Onkar Pradhan of the locality made a telephonic call to the plaintiff informing him that some people were trying to sell the suit plot. On the next date the plaintiff reached the plot where he saw the defendant and one Sh. Rajesh Sharma standing outside the suit plot. They stated to the plaintiff that the defendant was the owner of the suit plot and he had purchased the same. When the plaintiff tried to make them understand they threatened the plaintiff that he would face dire consequences. On 02.03.2008 the plaintiff came to know that the defendant had forcibly and illegally taken over the possession of the suit plot by breaking the lock of the plot. The plaintiff immediately made a call to the PCR and both the parties were taken to the police station. In the police station the police immediately freed the defendant and his muscle men however they Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 3/19 illegally detained the plaintiff till late night.
4. The plaintiff avers that after that he started receiving threats from the defendant who stated to the plaintiff that he was working with the Delhi Police and thus plaintiff could not do any harm. On 04.03.2008 and 07.03.2008 the plaintiff made complaints to the local police and higher authorities of the Delhi Police with regard to the aforesaid acts of the defendant but no action was taken by the local police against the defendant. The plaintiff started receiving threats from the defendant and his associates that in case he took any action against them the plaintiff and his family members would face dire consequences. It was also revealed to the plaintiff that the defendant was a relative of the aforementioned Sh. Dharampal who had on previous occasions tried to grab the plot of the plaintiff.
5. The plaintiff filed the criminal complaint U/s 200 Cr.P.C. and an application U/s 156 (3) Cr.P.C. before the court of Ld. M.M. Rohini and the order was passed directing the SHO, PS Nangloi to register an FIR against the defendant vide its order dated 19.08.2008. The defendant with a view to create some defence and a counterclaim to the criminal complaint filed a suit for mandatory and permanent injunction on false and frivolous grounds which was pending in the court of the Ld. Civil Judge, Delhi wherein no interim stay had been granted to the defendant herein.
Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 4/19
6. The defendant put in appearance and filed the written statement. Preliminary objections were taken. It was contended that the market value and present circle rate of the suit land was Rs. 13,700/ per sq. yds as per notification of Revenue Department Government of N.C.T. , Delhi dated 18.07.2007 and the value of the suit property was about Rs. 7 Lacs which was beyond the pecuniary jurisdiction of this court. It was contended that the plaintiff as well as Sh. Mohd. Anis had no legal right, title or interest in the suit plot because Sh. Mohd. Anis had no authority to sell the alleged plot. The plaintiff had never been in possession and occupation of the suit plot and the present suit was a counter blast to the suit for mandatory and permanent injunction filed by the defendant against the plaintiff. It was contended that the suit was not properly valued for the purpose of court fees and market value of the plot was not Rs. 1 Lac but more than Rs. 6 Lacs. The suit of the plaintiff was contended to be bad for nonjoinder and mis joinder of necessary parties because the defendant had not dispossessed the plaintiff as alleged in the suit and defendant was a bonafide purchaser having purchased the suit plot from its previous owner Sh. Dharampal who had taken the plot from the actual Bhumidhar Sh. Mahender Singh as per revenue records i.e. Khatauni on 24.07.1997.
7. In the parawise reply on merits, the defendant denied the allegations Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 5/19 contained in the plaint and contended that he was the true and actual owner and in possession and occupation of the suit plot. It was averred that the defendant had purchased the suit plot from its previous owner Sh. Dharampal son of Sh. Jage Ram for a sum of Rs. 90,000/ on 03.03.2008 vide GPA, Agreement to Sell, Affidavit, Receipt, Will and Possession Letter executed signed and attested by the witnesses. It was submitted that the boundary wall and one room were already constructed and the gate was already installed by Sh. Dharampal in the year 1997. The defendant further contended that Sh. Mahender Singh son of Sh. Daryao Singh was the actual Bhumidhar and owner of the agricultural land as well as General Attorney of Sh. Sumander Singh vide GPA dated 23.04.1996 who sold the suit plot to one Sh. Dharampal on 24.07.1997 for a sum of Rs. 25,000/ vide GPA, Agreement to Sell, Affidavit and Receipt dated 24.07.1997. It was stated that after taking the peaceful possession of the plot in question from the previous owner. The defendant got the room repaired and also put asbestos sheets over the wall in order to protect the house holds articles from rain, dust etc. and also got electricity meter installed in the plot from BSES Rajdhani Power Limited vide the application dated 17.05.2008. It was contended that the plaintiff was never in physical possession of the plot in question and had no right in the suit plot and the documents relied on by the plaintiff were forged and fabricated and Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 6/19 plaintiff rather had been cheated by Sh. Mohd. Anis. The filing of the complaint U/s 200 r/w Section 156 (3) Cr.P.C. and the civil suit were stated to be matters of record. It was contended that the plaintiff was never in physical possession nor was he dispossessed on 01.03.2008 therefore no cause of action had arisen in his favour. It was prayed that the suit be dismissed.
8. The plaintiff filed the replication. The allegations contained in the written statement were denied and the averments made in the plaint were basically reiterated
9. On 12.01.2011 the following issues were framed
1. Whether on the basis of plaint allegations plaintiff is entitled for a decree of possession as prayed for? OPP
2. Whether plaint is under valued the suit property for the purpose of court fees as well as jurisdiction? OPD
3. Whether the suit is bad for want of cause of action? OPD
4. Relief.
10. In evidence the plaintiff examined himself as PW1 and Sh. Rajender Singh as PW2 while the defendant examined himself as DW1, DW2 Sh. Dharampal, DW3 Head Constable Sh. Ram Avtar (official witness) who deposed that the record summoned pertaining to complaint dated 21.06.2008 and 23.08.2006 were not available since the record up to 2010 had been Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 7/19 destroyed vide order which was exhibited along with the copy of the description of the documents destroyed as Ex. DW3/1 DW4 Sh. Devki Prasad Sharma, Patwari SDM Office Nangloi, Delhi who brought the Khatauni for the village Baprola for the year 19891999 pertaining to Khasra No. 33/5 which was exhibited as Ex. DW4/1 while the Jama Bandi was exhibited as DW4/2 and DW5 Sh. Udaybir Singh from the office Superintendent BSES6 who brought the record pertaining to the electricity connection in the name of the defendant in relation to the suit property and the said records were exhibited as DW5/1.
11. Counsel for plaintiff placed on record the true copy of the judgment passed in suit no. 295/12 titled 'Balwan Singh Vs. Chhanno Lal' dated 30.09.2013 whereby the suit of the defendant herein was dismissed. It was stated by counsel for defendant that the defendant's appeal to the said judgment was pending. Thereafter the final arguments were advanced by counsel for the parties.
12. I have heard the final arguments advanced by counsel for the parties and perused the record.
13. My issue wise findings are as follows Issue No. 1 Whether on the basis of plaint allegations plaintiff is entitled for a decree of possession as prayed for? OPP Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 8/19
14. The plaintiff relied on the documents Ex. PW1/1 to Ex. PW1/5 (i.e registered GPA, notarized agreement to sell, notarized affidavit, registered Will and notarized receipt) in support of his claim of having purchased the suit plot. The defendant's documents admittedly are all merely notarized documents i.e. the documents Ex. DW1/1 to Ex. DW1/6 however as the defendant is admittedly in possession of the suit land, the plaintiff was required to prove his better title to the suit land qua the defendant in order to be entitled to the relief of possession. I note that on 29.08.2008, it was noted by the Ld. Predecessor of this Court that the present suit was one U/s 6 of the Specific Relief Act however the suit is not captioned as one U/s 6 of the Specific Relief Act and it was clarified by Ld. counsel for plaintiff at the stage of clarifications that the present suit was a simple suit for possession and not U/s 6 of the said Act.
15. The defendant in his written statement itself had taken the defence that neither the plaintiff nor Sh. Mohd. Anis had any right/interest in the suit property. Thus, through the defendant's written statement, it came to the knowledge of the plaintiff that the defendant was disputing not just the plaintiff's right/interest in the suit property but also that of Sh. Mohd Anis in the suit property. The counsel for the defendant evinced from the plaintiff's own witness PW2 that Khasra no. 33/5 (where the suit property is situated) was in Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 9/19 the Bhumidhari of the brothers namely, Sh. Samundra and Sh. Mahendra Singh and the defendant also summoned the official revenue record i.e. the Khatauni for the village Baprola for the year 198990 pertaining to Khasra no. 33/5 which was exhibited through the official from the Revenue Record i.e. DW4 who brought the record as Ex. DW4/1.
16. DW4 deposed in evidence that the present status of Khasra no.33/5 was that it had been acquired by the government as per the Jamabandi, Ex. DW4/2. DW4 also testified that previously the same was in the possession of Sh. Mahender Singh, Samunder Singh, Vijender Singh, all sons of Sh. Darayao Singh. Thus, it comes out not just as an admission of PW2 but also through the revenue records that the agricultural land was earlier mutated in the name of Mahender Singh, Samunder Singh, Vijender Singh. If admittedly, the aforesaid persons were the Bhumidars of the suit land, then the question arises that how did the plaintiff trace his alleged ownership back to them? The plaintiff has not been able to answer this question in evidence, if fact he admitted in crossexamination that he did not have the previous chain of documents of the property prior to Sh. Mohd. Anis and though he denied the suggestion that Sh. Mohd. Anis had no chain of previous documents to hand over to the plaintiff regarding the suit plot however the plaintiff has failed to establish that Sh. Mohd. Anis through whom he claims his alleged right in the Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 10/19 suit property actually had any right to the same, either through documentary evidence, in the form of any transfer documents in favour of the said Sh. Mohd. Anis or by producing Sh. Mohd. Anis in evidence. The fact that the GPA and Will executed by Sh. Mohd. Anis in favour of the plaintiff are registered does not discharge that the plaintiff's onus to prove that Mohd. Anis actually had the title to execute valid transfer documents in favour of the plaintiff. DW1/defendant denied the suggestion in crossexamination that he had wrongly stated that he did not know that the suit property was disputed property when he purchased the same and was confronted with para 2 of his written statement (reply on merits) and para 3 of his affidavit of evidence wherein it was stated that Sh. Mohd. Anis who allegedly sold the disputed plot to the plaintiff had no authority in law, to do so. Just because in the affidavit of evidence and the written statement the defendant has referred to the suit plot as 'disputed plot' it does not mean or imply that the defendant had knowledge at the time of allegedly purchasing the plot that the suit plot was disputed property. Even otherwise the settled law is that no person can give a title better than what he has. The issue is really whether Sh. Mohd. Anis actually had a valid right in the suit property so that he could execute the purported transfer documents in favour of the plaintiff, which plaintiff was required to prove in the affirmative, but the plaintiff has miserably failed to do Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 11/19 so. The plaintiff's own witness PW2 Sh. Rajender Singh testified in fact that he along with the plaintiff never tried to ascertain from the Revenue department as to who was the original Bhumidar of Khasra no. 33/5. PW2 also testified that in his presence the plaintiff did not ask for the previous chain of transfer documents from Sh. Mohd. Anis. Though PW1 and PW2 denied the suggestion that Mohd. Anis was not the owner of the suit property however the purported transfer documents in favour of said Sh. Mohd. Anis were never produced by the plaintiff. Even the purported property dealer i.e. Sh. Mohd. Ali through whom the plaintiff had allegedly purchased the suit property as per the deposition of PW2 was not called in evidence by the plaintiff.
17. For nonproduction of the previous chain of transfer documents which were vital documents or even Sh. Mohd. Anis as a witness who would have been a material witness for the plaintiff, adverse inference must be drawn against the plaintiff that in fact Sh. Mohd. Anis did not possess any chain of transfer documents. Thus the plaintiff has been unable to establish the legal sanctity and validity of the documents Ex. PW1/1 to Ex.PW1/5.
18. The defendant produced DW2 Sh. Dharam Pal as a witness who supported the defendant's case, deposing that he (DW2) had purchased the suit property from the actual owner Sh. Mohender Singh S/o Daryao Singh Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 12/19 and also as GPA of Sh. Surender Singh vide documents Ex. DW2/1 to Ex. DW2/4. I note that in the affidavit Ex. DW2/A, the marking of the documents purportedly in favour of the defendant's have been wrongly mentioned as Ex. DW2/1 to Ex. DW2/6 however the same is apparently a typographical error and while tendering the affidavit in chief, DW2 Sh. Dharam Pal deposed that he was relying on Ex. DW1/1 to Ex. DW1/6 and Ex. DW2/1 to Ex. DW2/5. Ld. Counsel for the plaintiff argued that the date of the purported transfer documents executed by DW2 in favour of the defendant i.e. 03.03.2008 was important as the plaintiff has lodged the complaint with the police just a day previous to that i.e. on 02.03.2008 and the said Sh. Dharmapal had executed false and fabricated documents in favour of the defendant in collusion with the defendant since his earlier attempts to obtain possession of the suit property had failed and the Panchayat had decided in favour of the plaintiff.
19. Ld. Counsel for the plaintiff also argued that admittedly the defendant was a police official working with Delhi Police and when plaintiff had called the police no action had been taken by them against the defendant for the reason that he was working in the police dpartment and it was only upon the plaintiff's application U/s.156(3) Cr.P.C. being allowed by the Court that an FIR was registered against the defendant. The factum of registration of FIR by the police upon the orders of the Court U/s 156(3) CRPC was admitted by the Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 13/19 defendant in crossexamination. The factum of the defendant's suit having been dismissed by the court of the Ld. Civil Judge, Delhi is also admitted. The aforesaid judgment was delivered in a suit for mandatory and permanent injunction wherein the relief sought was that the defendant (plaintiff herein), his associates etc. be restrained from dispossessing the plaintiff (defendant herein) from the suit plot which, in my opinion, would not operate as res judicata, the issues there being related to the entitlement of plaintiff to permanent injuction from forcible dispossession while in the present case, the issue of plaintiff's entitlement to the relief of possession which essentially involves considering which of the parties has a better right to possession of the suit plot. It was correctly argued by counsel for the plaintiff that the electricity connection in the name of the defendant as per record Ex. DW5/1 produced by the witness from the BSES/electricity department being of 07.05.2008 i.e. period later than March 2008, when the plaintiff claimed he was dispossessed is of no relevance to the present dispute. Even otherwise a mere electricity connection existing in the name of a party does not constitute proof of ownership and is only evidence of possession. The fact of the matter however remains that the plaintiff herein has not been able to fulfill the primary mandate of proving his better title to the suit plot. Ofcourse, it does not follow that the defendant is the owner of the suit plot. Indeed, the Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 14/19 defendant's witness i.e. DW4 official from the Revenue Department has deposed that at present the Khasra no. 33/5 stands acquired and it is the Government who is shown as Khatedar in Column 2 in the Jamabandi Ex DW4/2. It is however for the Government then to take steps as per law for recovery of physical possession of the suit land from the defendant who apparently being in possession is entitled to protect the same against all but the true owner.
20. Further, another pertinent thing to note is that the defendant alleged that the plaintiff had never been in possession of the suit property. As such the documents like GPA, Agreement to sell etc. do not constitute documents of title however both parties rely on such documents and since better right is to be seen it must be observed that there is not even a possession letter in favour of the plaintiff placed and proved on record to establish when the plaintiff first of all actually took possession of the suit plot. PW2 who deposed that he was a witness to the documents executed in favour of the plaintiff also does not in para 2 of his affidavit of evidence Ex PW2/A mention about possession being handed over to the plaintiff and it is in para 3 wherein he has narrated about the incident of the year 2006 of being called by the police and telling the police that the sale papers of the suit property were duly executed on 04.06.1999 and witnessing the papers and deposed that Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 15/19 thereafter the possession was purportedly given to the plaintiff. The plaintiff has merely placed on record the photocopy of the purported FIR which has been marked as Mark A, he did not choose to call any police officials and record from the police station regarding the alleged incident of the year 2006 when after recording statement of various persons the plaintiff was allegedly put in possession of the suit property. The plaintiff's witness PW1 and PW2 deposed that in the year 2006 when Dharampal tried to take possession of the plot, upon the plaintiff's complaint the police carried out the investigation and plaintiff was handed over possession but the defendant's witness DW2 (Dharampal) has denied any such incident. In such a situation the best evidence which the plaintiff should have produced in order to prove that such an incident took place in the year 2006 with Dharampal and that plaintiff was thereafter put in possession of the suit plot was the evidence of the police officials of the concerned police station and/or the record of the police in regard to the same but the plaintiff has not chosen to call the police officials in evidence for which adverse presumption must be drawn against the plaintiff who has not placed cogent evidence on record to show even his purported earlier possession of the suit plot. The plaintiff though denied the suggestion that Sh. Dharampal constructed boundary wall and one room in the suit property in the year 1997, volunteering that he (plaintiff) constructed the Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 16/19 boundary wall two years after purchasing the suit property in the year 1999 but deposed that he did not have any receipt for cement or bricks used in the construction of boundary wall. The plaintiff also voluntarily deposed that he got the boundary wall constructed from one Sh. Mulchand who resided nearby however he did not produce the said Sh. Mulchand to corroborate this contention. Thus, the plaintiff has neither been able to prove his better right to the suit property nor even his prior possession of the suit property. Thus, the plaintiff's suit for possession fails as he has been unable to establish his better right to the suit property and even prior possession of the suit plot qua the defendant. It is also pertinent to note that the plaintiff has not even sought to exhibit the site plan of the suit plot in evidence which is an essential requirement in a suit for possession. The plaintiff has failed to discharge his onus qua this issue.
Issue no. 1 is thus decided against the plaintiff.
Issue No. 2 Whether plaintiff is under valued the suit property for the purpose of court fees as well as jurisdiction? OPD
21. The defendant's objection was that the value of the suit plot was more than Rs. 6 lakhs at the time of filing of the suit and while in crossexamination, the plaintiff deposing as PW1 testified that he did not know what the circle rate of the suit property was when he filed the suit and he could not admit or Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 17/19 deny the suggestion that the circle rate of the suit property when he filed the suit was Rs.13,700/ at the time as he did not know, the defendant neither chose to confront the plaintiff with the relevant circle rates nor adduced documentary evidence in the form of circle rates in his own evidence. There was as such no admission regarding the circle rates from the plaintiff and there was a duty cast on the defendant to prove his objection by producing cogent documentary evidence in this regard which he chose not to do. Even otherwise, it has been rightly argued by the plaintiff that even the purported agreement to sell of the defendant Ex. DW1/2 dated 03.03.208 (i.e. the same year as that when the present suit was filed) shows a consideration amount of Rs. 90,000/ (Rupees Ninety Thousand Only) having been paid by the defendant. When the defendant himself claims to have allegedly purchased the suit plot for Rs. 90,000/ during a period quite proximate to the date of filing of the suit, then in absence of any other cogent documentary or even independent oral evidence being adduced by the defendant in this regard, his objection as to the market value of the suit plot being above Rs. 6 lakhs miserably fails. The defendant has failed to discharge his onus and therefore this issue is decided against the defendant.
Issue No. 3 Whether the suit is bad for want of cause of action? OPD
22. The plaintiff in order to be entitled to the relief of possession was Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 18/19 required to prove his better right to the suit plot but the plaintiff has been unable to establish the same. The initial onus of proving that a valid cause of action exists for filing the suit is always on the plaintiff and in the present case the plaintiff has failed to discharge this initial onus. Once the plaintiff was failed to establish that a valid cause of action existed in his favour for filing the present suit, it must be held that the suit is in fact bad for want of cause of action.
Issue decided in favour of the defendant.
Issue No. 4 Relief
23. In view of my findings on issues 1 and 3 above I hold that the plaintiff is not entitled to the relief sought. The suit of the plaintiff is dismissed. Parties to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to the Record Room.
Announced in the open court ANJANI MAHAJAN
On 22.09.2014 Civil Judge - 10 (Central)
22.09.2014
Suit No. 563/08 Sh. Channo Lal Vs. Sh. Balwan Singh 19/19