Delhi District Court
Om Parkash vs Dinesh on 15 January, 2022
Om Parkash & Anr. v. Dinesh & Anr.
IN THE COURT OF HELLY FUR KAUR : CIVIL JUDGE - 08
(CENTRAL), ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO : 96168/16
CNR NO.DLCT030001782007
In the matter of :
1. Om Parkash
S/o Sh. Umrao Singh,
R/o Village & P.O. Shohti
District Sonepat (Haryana)
Through Sh. Subhash Chander
S/o Sh. Siri Kishan,
R/o H.No.419, Village and PO Kakrola
New Delhi - 110 075.
2. Brijender Kumar Sharma,
S/o Sh. Parma Nand Sharma,
R/o Flat No.5, Pocket 6/3,
DDA Flats, Nasir Pur,
Dwarka, New Delhi. ...PLAINTIFFS
VERSUS
1. Dinesh
S/o Not known
2. Chander
S/o Not known
Both at Crown Opticals,
Shop No.6, Near Aggarwal Sweet Corner
Main Road, Near Flyover,
Tilak Nagar, New Delhi. ...DEFENDANTS
Date of institution : 11.01.2007
Date of judgment : 15.01.2022
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Om Parkash & Anr. v. Dinesh & Anr.
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
1. Vide this judgment, I shall decide a suit for permanent injunction. BRIEF FACTS OF THE PLAINT:
2. The brief facts of the plaint as alleged by the plaintiff in the plaint which are necessary for disposal of the suit are that Sh. Bhule, S/o Sh. Dola, R/o Village Tihar, Tilak Nagar, New Delhi, was owner of land measuring 5 Bighas 4 Biswas bearing Khewat No.13/13, Khatoni No.14, Khasra No.45/1 (2-17) and 50/1 (2-7), total 5 bighas 4 biswas situated at village Dindar Pur, Tehsil Najafgarh District South West, Delhi. That Sh. Bhule agreed to sell the above said land bearing Khewat No.13/13, Khatoni No.14, Khasra No.45/1 (2-7), total 5 bighas 4 biswas situated at Village Dindar Pur, Tehsil Najafgarh, District South West, Delhi with Sh. Subhash Chander, S/o Sh. Siri Kishan, R/o Village & P.O. Kakrola, New Delhi. Sh. Bhule executed sale documents as to GPA, agreement to sell etc. on 09.03.1998 Sh. Bhule also executed and got regd. GPA dated 09.03.1998 in favour of Sh. Subhash Chander. Through these documents and GPA, Sh. Subhash Chander, S/o Sh. Siri Kishan was authorized to sell above said land in favour of any person. Sh. Subhash Chander was competent to sell, mortgage, transfer and alienate abovesaid property in any manner to any person. That on the basis of abovesaid GPA and sale documents, Sh. Subhash Chander, s/o Sh. Siri Kishan abovesaid sold above said land measuring 5 bighas 4 HELLY Digitally signed by HELLY FUR CS No.96168/16 FUR KAUR Pg 2 of 34 Date: 2022.01.15 KAUR 17:04:25 +0530 Om Parkash & Anr. v. Dinesh & Anr.
biswas in favour of Sh. Brijender Kumar Sharma, S/o Sh. Parma Nand Sharma, plaintiff No.2 herein through regd. Sale deed dated 25.02.1999. Sh. Brijender Kumar Sharma got the possession of above said land. Mutation bearing No.1284 was sanctioned in favour of Sh. Brijdender Kumar Sharma on 23.04.1999. That Sh. Brijender Kumar Sharma further sold land measuring 4 bighas out of Khewat No.13/13, Khatoni No.14, Khasra No.45/1 (2-17) and 50/1 (1-3) out of total land measuring 4 bighas situated in Village Dindar Pur, Tehsil Najafgarh, Distt. South West, Delhi in favour of Om Parkash, plaintiff No.1 through regd. Sale deed dated 06.10.1999. That Om Parkash, plaintiff No.1 got mutated abovesaid land in his favour vide mutation No.1286 on 28.02.2000. That Sh. Brijender Kumar Sharma plaintiff No.2 further sold land measuring 1200 sq. yards i.e. remaining land out of total area measuring 5 bighas 4 biswas bearing Khewat No.13/13, Khatoni No.14, Khasra No.45/1 (2-17) & 50/1 (2-7) situated at Village Dindar Pur, Tehsil Najafgarh District South West Delhi through sale documents as to GPA, agreement to sell etc. in favour of plaintiff No.1 on 11.11.1999. That Sh. Om Parkash plaintiff No.1 became full owner of land measuring 5 bighas 4 biswas. That Sh. Om Parkash, plaintiff No.1 has sold area about 1500 sq. yards of land to different persons through sale documents and remaining land is in possession of Sh. Om Parkash, plaintiff No.1. That defendants have no right and interest in the suit property but they are threatening the plaintiffs not to enter into the suit land as per site plan attached herewith. They are putting different type of Digitally signed HELLY by HELLY FUR CS No.96168/16 Pg 3 of 34 KAUR FUR Date:
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obstructions. It is pertinent to mention that plaintiff No.1 has made roads in above said land and one room has also been constructed by plaintiff No.1 in suit land. Defendants have no right and interest in any part of suit land. That on 06.06.2006, when relative of plaintiff No.1 Sh. Subhash Chander tried to lay DPC in some portion of land, then one person came on the spot whose name was later on disclosed as Dinesh Kumar, obstructed Sh. Subhash Chander from laying DPC who reported the matter to police on the same day. No action was taken on the report of Sh. Subhash Chander. Another complaint was made on 26.06.2006 to ACP South West, New Delhi but no action was taken against said Dinesh Kumar. Another complaint/ reminder was made to SHO PS Najafgarh on 07.10.2006 when no action was taken, a complaint-cum-reminder was made to ACP PS Najafgarh on 02.07.2006. It is pertinent to mention that when there was no action by the police against Dinesh Kumar and his associates, plaintiff No.1 came to know that defendants are getting ex-parte injunction without giving hearing to the plaintiff No.1. Plaintiff No.1 filed a caveat in the court of District Judge, Tis Hazari, Delhi. That defendants kept silent and did not obstruct or interfered in the possession of plaintiff No.1 on suit land. That on 16.12.2006 attorney of plaintiff Sh. Subhash Chander received a telephonic message from PS Najafgarh New Delhi. Attorney of plaintiff No.1 on the instructions of plaintiff No.1 produced complete set of documents in original and submitted copies of same to one police officer in PS Najafgarh, New Delhi. Defendants could not produce any documents of any nature showing HELLY Digitally signed by HELLY FUR CS No.96168/16 FUR KAUR Pg 4 of 34 Date: 2022.01.15 KAUR 17:04:50 +0530 Om Parkash & Anr. v. Dinesh & Anr.
therein their interest on the said land. That defendants have again threatened on 02.01.2007 to dispossess the plaintiff No.1 from suit land. They have further threatened to kill plaintiff No.1 or his labour or his attorney, if plaintiff No.1 shall raise any DPC on any part of land belonging to plaintiff No.1 owners of 1500 sq. yards of land have laid their own DPC on the land which they have purchased from plaintiff No.1. Defendant have further threatened that they will sell the suit land to third parties even though they have no right or interest in suit land. Defendants have shown any document of title which is superior to the title of plaintiff No.1. Original owner has sold the land to Sh. Subhash Chander who further sold the land to Sh. Brijender Kumar Sharma has also sold the land to Sh. Om Parkash plaintiff No.1 is owner in possession. He has purchased the property after making payment of sale consideration. Plaintiffs have purchased the property in good faith without notice of title of defendants if any, or any other person. Property of plaintiffs has already been mutated in revenue record. They are also in possession. If defendants produce or shall produce in future any document of title, regarding suit property that will be forged, without authority, without consideration and shall be a fabricated document conferring no title or interest in the property in dispute. Revenue Department has also confirmed ownership and possession of plaintiff No.1 on suit land. That there is every apprehension that defendants, their agents, attorneys with the help of police, shall harass the plaintiffs and shall create third party interest in suit land. It is also apprehended from the threats of HELLY Digitally signed by HELLY FUR KAUR CS No.96168/16 FUR Date: Pg 5 of 34 KAUR 2022.01.15 17:05:03 +0530 Om Parkash & Anr. v. Dinesh & Anr.
defendants that they will dispossess the plaintiff No.1 from suit land by force or with the help of police which is siding with the defendants and is ignoring the lawful complaints made by law abiding citizen. Hence, the present suit. WRITTEN STATEMENT OF DEFENDANTS (AMENDED DATED 14.03.2014):
3. NOTE : AS PER RECORD AND MEMO OF PARTIES, SH. DINESH IS DEFENDANT NO.1 AND SH. CHANDER PRAKASH IS DEFENDANT NO.2, HOWEVER, IN THE WRITTEN STATEMENT, SH. CHANDER PRAKASH HAS BEEN MENTIONED AS DEFENDANT NO.1.
4. Defendants have controverted the claim of the plaintiffs while submitting that present suit for permanent injunction is not maintainable as plaintiffs are not in actual physical possession of the property and it is the defendant No.1 Sh. Chander Prakash is owner and in actual possession of the total land measuring 5 Bigha 4 Biswas comprising in Khasra No.45/1 and 50/1 situated in the revenue estate of Village Dindarpur. The plaintiffs have got obtained false and fabricated transfer documents in their favour by fraud and by misrepresentation of facts from Late Bhule who was an old and uneducated person and the said transfer documents have been obtained by the plaintiffs without any consideration money. Thus, any transfer document without consideration is null and void and therefore, being null and void document. The plaintiffs have not been conferred any right, title or interest of any kind under the said transfer documents which have been obtained by the plaintiffs from Late Bhule. The present suit has been filed without any cause of action as the documents filed by plaintiff are forged, false and Digitally signed HELLY by HELLY FUR CS No.96168/16 FUR KAUR Date:
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fabricated and obtained by fraud and misrepresentation of facts upon Late Bhule who was an old person and was uneducated, illiterate person and without his knowledge, said documents have been obtained and prepared by plaintiffs. That the present suit is also bad for misjoinder of parties. The defendant No.2 has no concern with the land in dispute. In reply on merits, it is denied that Sh. Bhule agreed to sell the suit property with Sh. Subhash Chander, S/o Sh. Shrikishan, Village Kakrola, Delhi. It is denied that Sh. Bhule executed the sale documents as GPA, agreement to sell etc. on 09.03.1998. It is also denied that Sh. Bhule also executed and got registered GPA dated 09.03.1998 in favour of Sh. Subhash Chander. It is also denied that through these documents and GPA, Sh. Subhash Chander, S/o Sh. Srikishan was authorized to sell the suit property in favour of any person. It is denied that Sh. Subhash Chander was competent to sell, mortgage, transfer and alienate the suit property in any manner to any person. Plaintiffs by playing fraud and adopting illegal means and by deceiving and cheating late Sh. Bhule have got obtained and prepared the GPA dated 09.03.1998 in favour of Sh. Subhash Chander while in fact, Sh.
Subhash Chander never executed the GPA dated 09.03.1998. After having obtaining and getting the GPA executed of late Sh. Bhule, the plaintiffs have got registered the sale deed on the basis of GPA executed in favour of Sh. Subhash Chander because the sale deed dated 25.02.1999 on the basis of GPA dated 09.03.1998 is a totally false sale deed executed without any consideration and therefore, the same is null and void sale deed and not HELLY Digitally signed by HELLY FUR CS No.96168/16 FUR KAUR Date: 2022.01.15 Pg 7 of 34 KAUR 17:05:27 +0530 Om Parkash & Anr. v. Dinesh & Anr.
title has been transferred in favour of the vendee of the sale deed dated 25.02.1999. It is further submitted that if Sh. Bhule would have executed the GPA dated 09.03.1998 in favour of Sh. Subhash Chander, Sh. Bhule would not have executed the GPA dated 08.12.1998 in favour of Sh. Raj Kumar and further the GPA dated 08.12.1998 had been executed by Sh. Bhule in favour of Sh. Raj Kumar with consideration and GPA which has been executed with the consideration cannot be cancelled at all and it is pertinent to mention her that the GPA dated 08.12.1998 executed by Sh. Bhule in favour of Sh. Raj Kumar had not been cancelled till today. It is also denied that Sh. Brijender Kumar Sharma got the possession of the said land in suit. It is a matter of record whether the mutation No.1284 was sanctioned in favour of Sh. Brijender Kumar Sharma on 23.04.1999. It is further submitted that in the alternative also if the mutation was sanctioned, the same was illegal and unlawful because, the sale deed was itself a null and void document and as a consequence thereof, the mutation sanctioned on the null and void sale deed the mutation is also a null and void order. It is further submitted that Sh. Bhule was the legal owner of the property in suit and Sh. Bhule had executed a GPA dated 08.12.1998 after having received the consideration money in favour of Sh. Raj Kumar and the said GPA dated 08.12.1998 was irrevocable general power of attorney with consideration of the entire suit land and the said general power of attorney dated 08.12.1998 in favour of Sh. Raj Kumar by Late Sh. Bhule has not been revoked till today nor the same has been cancelled nor Sh. Bhule had HELLY Digitally signed by HELLY FUR KAUR CS No.96168/16 FUR Date: Pg 8 of 34 KAUR 2022.01.15 17:05:39 +0530 Om Parkash & Anr. v. Dinesh & Anr.
during his life time informed to Sh. Raj Kumar about the revocation of cancellation of the said GPA if the same was done by Late Sh. Bhule during his life time and therefore, every act which has been done by Sh. Raj Kumar on the basis of the GPA dated 08.12.1998 is a legal action performed by Sh. Raj Kumar. That Sh. Raj Kumar had sold the land in suit to Sh. Mohan Singh Negi vide registered sale deed dated 26.05.1999 and actual physical possession was also handed over to Sh. Mohan Singh Negi at the spot. It is submitted that the sale deed dated 06.10.1999 executed in favour of Sh. Om Prakash, plaintiff No.1 by Sh. Brijender Kumar Sharma is also a null and void sale deed and nothing has been transferred in the said sale deed to Sh. Om Parkash, plaintiff No.1 because, the sale deed executed in favour of Sh. Brijender Kumar Sharma was itself a null and void sale deed but the same has been got prepared and executed by playing fraud upon late Sh. Bhule by the plaintiffs in connivance and collusion to each other and even the said sale deed have been got executed without any consideration money. It is further submitted that any sale deed executed by Sh. Brijender Kumar Sharma in regard to the land measuring 1200 sq. yards is also a null and void transfer documents and nothing has been transferred under the said transfer documents in favour of Sh. Om Prakash. It is further submitted that the plaintiffs have not given any particulars of the area and persons to whom the said land measuring 1500 sq. yards have been sold by Sh. Om Prakash. It is further submitted that the plaintiffs have not mentioned the name of the purchasers with ulterior HELLY Digitally signed by HELLY FUR KAUR CS No.96168/16 FUR Date: Pg 9 of 34 2022.01.15 KAUR 17:05:53 +0530 Om Parkash & Anr. v. Dinesh & Anr.
motive because, the plaintiffs with ulterior motive want to transfer the land in question in future of back dates. It is also denied that the plaintiff No.1 has made roads in the said land and one room has also been constructed by the plaintiff No.1 on the suit land. It is denied that on 06.06.2006 when the relative of the plaintiff No.1 Sh. Subhash Chander tried to lay the DPC in some portions of the land, then one person came on the spot whose name was later on disclosed as Dinesh Kumar obstructing Sh. Subhash Chander from laying the DPC who reported the matter to police on the same day. It is also denied that no action was taken on the report of Sh. Subhash Chander. It is also denied that another complaint was made on 26.06.2004 to ACP, South West, Delhi, but no action was taken against Sh. Dinesh Kumar. It is also denied that the complaint/reminder was made to SHO, PS Najafgarh, Delhi, on 07.10.2006 but no action was taken and again a complaint-cum- reminder was made to ACP, Najafgarh, on 02.07.2006. It is also denied that no action was taken by the police against Sh. Dinesh Kumar and his associates. It is further submitted that the plaintiffs have concocted a totally false story against Sh. Dinesh Kumar as Sh. Dinesh Kumar had never visited the suit land at any time because, the defendant No.1 is owner and in possession of the suit property and the defendant No.2 has no connection with the suit land and therefore, the question of visiting by the defendant No.2 on the suit land on the said date and time are wrong and denied to the knowledge of the plaintiffs themselves. It is further submitted that all the complaints as has been mentioned in para No.10, of the plaint HELLY Digitally signed by HELLY FUR CS No.96168/16 FUR KAUR Date:
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are false complaints to the knowledge of the plaintiffs and the plaintiffs have concocted a false story only to file the present suit. It is denied that the cause of action arose to the plaintiffs on 16.06.2006, thereafter on 30.06.2006, 06.07.2006, 02.07.2007, 10.07.2006 and 02.01.2007 and the cause of action is continuing one.
REPLICATION:
5. The plaintiffs filed replication to the written statement of defendants while reiterating and reaffirming all the contents of the plaint and denying all the contents of the written statement of defendants.
ISSUES:
6. From the pleadings of the parties, following issues were framed for trial by Ld. Predecessor of this court vide order dated 01.08.2013:
1. Whether plaintiffs are not in actual physical possession of the suit property? OPD.
2. Whether defendant No.1 is the owner and in possession of the suit property? OPD.
3. Whether the plaintiffs are entitled to decree of permanent injunction, as prayed for?
OPP.
4. Relief.
PLAINTIFF'S EVIDENCE:
7. To prove their case, plaintiffs examined Sh. Subhash Chander as PW-1, whose examination in chief is by way of affidavit Ex.PW-1/A. PW-1 relied upon following documents:Digitally signed
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(a) Ex.PW-1/1 GPA dated 06.01.2007.
(b) Ex.PW-1/2 copy of jamabandi (objected to mode of proof).
(c) Ex.PW-1/3 copy of khasra girdawari (objected to mode of proof).
(d) Ex.PW-1/4 is de-exhibited and now is marked as Mark-A copy of mutation.
(e) Ex.PW-1/5 (OSR) copy of ak-sizra.
(f) Ex.PW-1/6 registered GPA dated 09.03.1998.
(g) Ex.PW-1/7 notarized GPA dated 09.03.1998.
(h) Ex.PW-1/8 agreement to sell dated 09.03.1998.
(i) Ex.PW-1/9 affidavit of Sh. Bhule.
(j) Ex.PW-1/10 receipt dated 09.03.1998 of Rs.4,50,000/-.
(k)Ex.PW-1/11 sale deed dated 25.02.1999.
(l) Ex.PW-1/12 sale deed dated 06.10.1999.
(m) Ex.PW-1/13 GPA dated 11.11.1999.
(n) Ex.PW-1/14 agreement to sell dated 11.11.1999.
(o) Ex.PW-1/15 affidavit of Sh. Bijender Sharma.
(p) Ex.PW-1/16 receipt dated 11.11.1999 of Rs.1,20,000/-.
(q) Ex.PW-1/17 site plan (objected to mode of proof).
(r) Ex.PW-1/18 was de-exhibited and marked as Mark-B copy of complaint dated 16.06.2006.
(s) Ex.PW-1/19 was de-exhibited and marked as Mark-C copy of complaint HELLY Digitally signed by HELLY FUR CS No.96168/16 FUR KAUR Date: 2022.01.15 Pg 12 of 34 KAUR 17:06:30 +0530 Om Parkash & Anr. v. Dinesh & Anr.
dated 26.06.2006 received on 28.06.2006.
(t) Ex.PW-1/20 was de-exhibited and marked as Mark-D copy of complaint dated 10.07.2006.
(u) Ex.PW-1/21 was de-exhibited and marked as Mark-E copy of complaint dated 21.07.2006.
(v) Ex.PW-1/22 was de-exhibited and marked as Mark-F copy of demarcation report dated 03.06.2006.
(w) Ex.PW-1/23 de-exhibited and marked as Mark-G copy of receipt of Rs.50/-.
(x) Ex.PW-1/24 was de-exhibited and marked as Mark-H copy of application.
(y) Ex.PW-1/25 copy of latest khasra girdawari (objected to mode of proof). DEFENDANT'S EVIDENCE:
8. In order to prove their case, defendants examined following witnesses:
DW-1 is defendant No.2 whose examination in chief is by way of affidavit Ex.DW-1/A. DW-1 relied upon following documents:
(a) Ex.PW-1/D2 original General Power of Attorney dated 08.12.1998 (already exhibited).
(b) Ex.DW-1/1 original sale deed dated 26.05.1999 of Khasra No.45/1 (2-17) executed by Sh. Raj Kumar in favour of Sh. Mohan Lal Negi.
(c) Ex.DW-1/2 was de-exhibited and marked as Mark-DH sale deed Digitally signed HELLY by HELLY FUR KAUR CS No.96168/16 FUR Date: Pg 13 of 34 2022.01.15 KAUR 17:06:41 +0530 Om Parkash & Anr. v. Dinesh & Anr.
dated 26.05.1999 of Khasra No.50/1 (2-7) executed by Sh. Raj Kumar in favour of Sh. Mohan Lal Negi.
(d) Ex.DW-1/3 General Power of Attorney dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Devi Dayal.
(e) Ex.DW-1/4 affidavit dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Devi Dayal.
(f) Ex.DW-1/5 agreement to sell dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Devi Dayal.
(g) Ex.DW-1/6 receipt dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Devi Dayal.
(h) Ex.DW-1/7 possession letter dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Devi Dayal.
(i) Ex.DW-1/8 General Power of Attorney dated 23.07.2001 executed by Sh. Devi Dayal in favour of Sh. Chander Parkash.
(j) Ex.DW-1/9 Deed of Will dated 23.07.2001 executed by Sh. Devi Dayal in favour of Sh. Chander Parkash.
(k) Ex.DW-1/10 agreement to sell dated 23.07.2001 executed by Sh. Devi Dayal in favour of Sh. Chander Parkash.
(l) Ex.DW-1/11 affidavit dated 23.07.2001 executed by Sh. Devi Dayal in favour of Sh. Chander Parkash.
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(m) Ex.DW-1/12 receipt dated 23.07.2001 executed by Sh. Devi Dayal in favour of Sh. Chander Parkash.
(n) Ex.DW-1/13 possession letter dated 23.07.2001 executed by Sh. Devi Dayal in favour of Sh. Chander Parkash.
(o) Ex.DW-1/14 General Power of Attorney dated 23.07.2001 executed by Sh. Vijay Kumar in favour of Sh. Chander Parkash.
(p) Ex.DW-1/15 Deed of Will dated 23.07.2001 executed by Sh. Vijay Kumar in favour of Sh. Chander Parkash.
(q) Ex.DW-1/16 agreement to sell dated 23.07.2001 executed by Sh. Vijay Kumar in favour of Sh. Chander Parkash.
(r) Ex.DW-1/17 affidavit dated 23.07.2001 executed by Sh. Vijay Kumar in favour of Sh. Chander Parkash.
(s) Ex.DW-1/18 receipt dated 23.07.2001 executed by Sh. Vijay Kumar in favour of Sh. Chander Parkash.
(t) Ex.DW-1/19 possession letter dated 23.07.2001 executed by Sh. Vijay Kumar in favour of Sh. Chander Parkash.
(u) Ex.DW-1/20 certified copy of order dated 30.01.2018 passed by the court of Add. Collector, District, South West in appeal No.97/07.
(v) Mark-DA copy of Will dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Devi Dayal.
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(w) Mark-DB copy of General Power of Attorney dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Vijay Kumar.
(x) Mark-DC copy of affidavit dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Vijay Kumar.
(y) Mark-DD copy of agreement to sell dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Vijay Kumar. (z) Mark-DE copy of receipt dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Vijay Kumar.
(aa) Mark-DF copy of possession letter dated dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Vijay Kumar. (ab) Mark-DG copy of Will dated 29.08.2000 executed by Sh. Mohan Lal Negi in favour of Sh. Vijay Kumar.
(ac) Ex.DW-1/2 certified copy of sale deed dated 26.05.1999 of Khasra No.50/1 (2-7) executed by Raj Kumar in favour of Sh. Mohan Lal Negi.
DW-2 is defendant No.1 whose tendered his examination in chief by way of affidavit Ex.D-2/A. DW-3 is Sh. Suresh Kumar, whose tendered his examination in chief by way of affidavit Ex.D-3/A.
9. I have heard the arguments and perused the record. Issue-wise Digitally signed HELLY by HELLY FUR CS No.96168/16 FUR KAUR Date:
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findings as follows:
ISSUE NO.1 Whether plaintiffs are not in actual physical possession of the suit property? OPD.
10. At the outset, it is to be mentioned that as per the plaint, the suit property is substantially a vacant land, though plaintiffs claim to have constructed a room in a portion of the property. In this regard, it cannot be ignored that PW-1 deposed during his cross-examination that the said room has been broken and does not exist at present. Moreover, no agricultural activity has been pleaded. This fact is rather corroborated from the statement of PW-1 during cross examination that no agricultural activity was done by him or by any of the plaintiffs. In fact, the Khasra Girdawris relied upon by the plaintiff also reflect 'plots' or Dhacha (wild grass) on the land. Even, as per the site plan Ex PW-1/17, the suit property is basically a vacant land. I can say so more firmly because plaintiffs have not even mentioned area or demarcations of the room in the prayer clause or the site plan. Having said that, I must remind myself that it is a settled law now that in case of vacant land, possession follows title. In Anathula Sudharkar v. P. Buchi Reddy (Dead) by Lrs AIR 2008 SC 2033, it was held that in case of suit for injunction against dispossession, question of title is not in issue however, in case of vacant land, it was held:
14. But what if the property is a vacant site, which is not physically possessed, used or Digitally signed HELLY by HELLY FUR CS No.96168/16 FUR KAUR Date:
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enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession.
11. At the same time, it was also held by the Hon'ble Supreme Court in the above judgment that title can only be decided in simplicitor suit for injunction if the appropriate issue has been framed and the parties led the evidence accordingly.
12. At this juncture, I shall also note judgment of Hon'ble Delhi High Court in Sh. Lakhmi Chand & Ors. V. Sh. Karan Singh & Anr. RSA No.346/2015 wherein Hon'ble Court took note of the judgment in Anathula Sudharkar (supra) and observed that though as a general rule, simplicitor suit for injunction does not lie in case of serious dispute of title nonetheless if a suit is simplicitor for injunction but the parties proceed on the basis of title itself being in issue and accordingly the case is contested by leading evidence by the respective parties, then in such a case the simplicitor suit for injunction can be said to include the aspect of title which has to be decided.
13. From the above rulings, this court is empowered to decide question of title in the present suit despite being a suit for simplicitor injunction. More so, it HELLY Digitally signed by HELLY FUR KAUR CS No.96168/16 FUR Date: Pg 18 of 34 2022.01.15 KAUR 17:07:37 +0530 Om Parkash & Anr. v. Dinesh & Anr.
also becomes clear from the above discussion that title is significant in case of vacant land since actual physical possession cannot generally be determined in such cases. Accordingly, taking into account the facts of the present case, since it would be against the mandate of law to stick to aspect of physical possession, I shall adjudicate the present issue in the light of title as well.
14. At this point, I am compelled to note the concept and law of onus of proof. For this purpose, I shall take aid of ruling of Hon'ble Supreme Court in Anil Rishi v. Gurbaksh Singh (Appeal (civil) 2413 of 2006) in which it was held:
"In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same."
15. In light of the above excerpt, it is evident that firstly the plaintiff has to prove his case in terms of the relief sought and only then the onus shifts upon the defendant. It may be mentioned that proof of facts admitted by the defendant may be dispensed with. In the present suit, the plaintiff has sought injunction against dispossession from a land which required proof of two facts i.e., lawful possession and threat by defendant to dispossess. After the plaintiff had discharged the onus, the onus would have shifted upon the defendant since there is no admission of the case of the plaintiff HELLY Digitally signed by HELLY FUR KAUR CS No.96168/16 FUR Date: Pg 19 of 34 2022.01.15 KAUR 17:07:46 +0530 Om Parkash & Anr. v. Dinesh & Anr.
as such. Therefore, taking into account the settled law, I shall proceed accordingly and not the other way round.
16. Coming to the merits of the case, at the outset, the chronology of documents relied upon by the parties may be noted for setting the ground for adjudication. The plaintiff has relied upon GPA, Agreement to sell, etc executed on 09.03.98 and a registered GPA of the same date, all executed by Sh. Bhule in favour of one Sh. Subhash Chander s/o Sh. Kishan. Further, another chain of documents relied upon by the plaintiff are registered sale deed executed by Sh. Subhash Chander in favour of plaintiff no.2 on 25.02.99. Here I must pause and consider that the defendants have relied upon a GPA executed by Sh. Bhule in favour of one Sh. Raj Kumar on 08.12.1998. Now, the contention of the defendant in the arguments was that the GPA executed on 08.12.1998 was prior in time to the sale deed and therefore revoked the earlier GPA dated 09.03.98. In this regard, it is to be considered that the documents dated 09.03.98 relied upon by plaintiff consist of agreement to sell etc as well allegedly with consideration which ostensibly bring the transaction in the ambit of Section 202 of Indian Contract Act and thereby making the GPA irrevocable (Hardip Kaur v. Kailash (S.B.) 193 (2012) DLT 168), whereas in fact the GPA of 08.12.1998 is a lone document. At this point, it is pertinent to mention that on close scrutiny of the written statement, it transpires that defendants have not denied execution of the documents per se but have raised certain additional HELLY Digitally signed by HELLY FUR CS No.96168/16 FUR KAUR Date: 2022.01.15 Pg 20 of 34 KAUR 17:07:56 +0530 Om Parkash & Anr. v. Dinesh & Anr.
pleas of fraud, forgery etc. Nevertheless, it does not mean that execution of the document need not to be gone into at all. As per settled law, a court can exercise proviso to Section 58 of Indian Evidence Act r/w Order 8 Rule 5 of CPC and require even the admitted facts to be proved. Ergo, in the opinion of the court, it is in the fitness of circumstances to see whether the plaintiffs could prove the documents or not.
17. As per the claim of the plaintiff, total 5 documents were executed on 09.03.1998 as placed on record by the plaintiff which consist of two General Power of Attorneys, an agreement to sell, an affidavit and a receipt (Ex.PW- 1/6 to Ex.PW-1/10). Following points are worth noting in connection to these documents:
(i) Firstly, presumption of execution of power of attorney cannot be raised here applying section 85 of Indian Evidence Act, 1872 since the power of attorney on record does not fulfil the necessary ingredients for drawing the presumption. In Electric Construction & Equipment Company Ltd. V. Jagjit Electric works it was held that twin requirement for application of Section 85 are: First, Power of attorney must be executed before a Notary Public and secondly, it must be authenticated by a Notary Public. Further it was held that the words are "executed before, and authenticated by" therefore both these conditions must be satisfied. In Digitally signed HELLY by HELLY FUR KAUR CS No.96168/16 FUR Date: Pg 21 of 34 2022.01.15 KAUR 17:08:06 +0530 Om Parkash & Anr. v. Dinesh & Anr.
Citibank N.A. vs Juggilal Kamlapat Jute Mills Co AIR 1982 Delhi 487, it was observed that the authentication is not merely attestation but something more and that according to Law Lexicon by T. P. Mukherjee and K. K. Singh, authentication connotes an attestation made by an authorized officer by which he certifies that a record is in due form of law.
In fact, it can also be noted that in the cross examination, PW-1 who is the beneficiary of the power of attorneys Ex. PW1/6 and Ex PW1/7 deposed that he did not remember if the parties had signed the register of Notary Republic. Therefore, iin view of the discussed law and the evidence, it would not be legally wise to raise any presumption.
(ii) Secondly, there are two attesting witnesses on the GPA dated 09.03.1998 (Ex.PW-1/6) which is a registered one, namely Hari Chand and Ashok Tyagi. However, on another GPA (Ex.PW-1/7) executed on the same day at the same time as averred, there is only one attesting witness i.e., Ashok Tyagi. Firstly, it would not appeal to a rational mind that a person would execute two General Power of Attorneys at the same time and get registered one and get notarised the other with difference in witnesses. More so, what cannot also be lost sight of is that evidently, it is visible with naked eye that the signatures of Ashok Tyagi on the registered GPA are entirely different from the one notarized. In fact, what makes the documents HELLY Digitally signed by HELLY FUR KAUR CS No.96168/16 FUR Date: Pg 22 of 34 2022.01.15 KAUR 17:08:25 +0530 Om Parkash & Anr. v. Dinesh & Anr.
more suspicious is the signatures of Sh. Bhule, the executant. The registered General Power of attorney Ex.PW-1/6 bears signatures of Sh. Bhule in English whereas Ex.PW-1/7 to Ex.PW-1/10 which are claimed to be part of same transaction bear signatures in Hindi and a thumb impression. It would be naive to believe that a person would sign two set of documents at the same time in different languages.
(iii) Besides, though indeed PW-1 being the beneficiary of the documents and allegedly being present at the time of execution, could have proved the documents, nonetheless, at the same time it cannot be ignored that the no efforts were made to examine the attesting witnesses. Though during cross examination, PW-1 deposed that one of the witnesses Sh. Hari Chand has expired and that he does not know about whereabouts of Sh. Ashok Tyagi. However, nothing has been brought on record to show that Sh. Hari Chand has passed away. The court is conscious of the presumption of genuineness of a registered document however, in the present circumstances, as mentioned in foregoing and forthcoming observations, the presumption seems to have been rebutted.
(iv) It is most significant to note that during cross examination of PW-1, it was deposed that Sh. Bhule was unable to read English language. This very statement creates doubt over execution of Ex.PW1/6 which bears signatures of Bhule in English. Further, it was surprisingly admitted that Ex.PW-1/6 does not bear signatures of Bhule. It was stated voluntarily that HELLY Digitally signed by HELLY FUR CS No.96168/16 FUR KAUR Date: 2022.01.15 Pg 23 of 34 KAUR 17:08:36 +0530 Om Parkash & Anr. v. Dinesh & Anr.
it bears his thumb impression and it was suggested by Ld. Counsel for defendant that the thumb impression is not of Bhule. Interestingly, during the cross examination on the very next date of hearing, PW-1 stated that he cannot identify the thumb impression of Sh. Bhule.
18. From the above analysis, it can be safely said that plaintiffs could not sufficiently prove execution of the documents on the basis of which they claimed to have purchased the property. Evidently, the witness could not stand the test of cross-examination. More so, the material discrepancies as noted above do not let the court find favour with the documents. At this point, I shall also take aid of the word 'proved' as contained in Section 3 of Indian Evidence Act which reads as: "A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
19. Apart from the above stated documents, plaintiffs have relied upon Jamabandi Ex.PW-1/2 and Copy of Mutation Mark A. It is a settled law that Mutation is not indicative of title. In particular, judgment of Hon'ble Supreme Court of India in Jitendra Singh v. The State of Madhya Pradesh & Ors. SLP (C) No.13146/2021, may be adverted to in which it was reiterated that mutation of property in revenue records neither creates or extinguishes title to the property nor has it any presumptive value on title. Further that such Digitally signed HELLY by HELLY FUR CS No.96168/16 FUR KAUR Date: 2022.01.15 Pg 24 of 34 KAUR 17:08:45 +0530 Om Parkash & Anr. v. Dinesh & Anr.
entries are only for the purpose of collecting land revenue. It was categorically noted that as per settled law, the entries in the revenue records or jamabandi have only fiscal purpose. Accordingly, in view of this law, in absence of proof of transfer documents, mere mutation or Jamabandi cannot prove title of the plaintiffs. Moreover, it may also be noted that the mutation or the jamabandi do not reflect status of the whole property, rather show first mutation in favour of plaintiff no.2 of total land and later in favour of plaintiff no.1 for only 4 Bighas. In addendum, it cannot be neglected that defendants have placed on record, the certified copy of order of Additional Collector (Mark PX2) where ostensibly the mutations were set aside. Further, notably, the mutations were recorded on the basis of the title documents which cannot be relied upon as the GPA on the basis of which the same were executed could not be proved herein. In turn the jamabandi is based upon the mutation which has been set aside.
20. Despite these observations, aspect of physical possession may also be taken into account, assuming that there was a room on the property and it is a partially built up (though negligible) property. In the plaint, it is the averment of the plaintiffs themselves that total area of property is 5 Bighas and 4 Biswa (contained in two Khasras) and plaintiff no.2 transferred 4 bighas to plaintiff no.1 by way of sale deed on 06.10.99. Further, thereafter he transferred 1200 sq. yards i.e., remaining land to plaintiff no.1 by way of GPA, agreement to sell etc on 11.11.99. Furthermore, that plaintiff no.1 HELLY Digitally signed by HELLY FUR CS No.96168/16 FUR KAUR Date: 2022.01.15 Pg 25 of 34 KAUR 17:08:55 +0530 Om Parkash & Anr. v. Dinesh & Anr.
transferred about 1500 sq. yards to different persons through sale documents and that remaining land is in possession of plaintiff no.1. It cannot be ignored that to the contrary, the relief in the suit has been sought regarding the whole property of 5 Bigha 4 Biswa. Though it is stated that the relief is sought for red portion of the site plan and the site plan Ex.PW- 1/17 shows some portion in green area which is claimed to have been sold by plaintiff no.2 to some persons, however, the area mentioned in the relief portion is 5 Bigha and 4 Biswa. More so, it has been confirmed in the cross examination by PW-1 that the suit is 5 Bigha and 4 Biswa. Accordingly, the site plan and the prayer clause are mystifying and incongruous. Moreover, the site plan does not demarcate the area of the green and red portion. Absence of identification and details of the area in the site plan certainly affect the case of the plaintiffs. Even otherwise, it is inevitable to note that during cross-examination, PW-1 deposed that he did not know who prepared the site plan and further stated that site plan may have been prepared at Tis Hazari Court. It was also admitted that site plan does not specify that which area falls in which Khasra no. (45/1 or 50/1). Therefore, site plan Ex.PW-1/17 has not been proved and is even ambiguous as noted above. Also, there is no site plan with the sale deeds or other documents of transfer relied upon by the plaintiffs which could have aided the identification. It is needless to say, that site plan is a fundamental document in a civil suit where subject matter is an immovable property and not proving HELLY Digitally signed by HELLY FUR FUR KAUR CS No.96168/16 Date: 2022.01.15 Pg 26 of 34 KAUR 17:09:05 +0530 Om Parkash & Anr. v. Dinesh & Anr.
the same might be fatal to the fate of the case. Nonetheless, I shall consider other limb of evidence led by the plaintiffs.
21. Copy of Demarcation Report (Mark-F) was brought on record however, that report also does not mention the details of the area in possession of the plaintiff no.1. Besides, it is also notable that the area sold by plaintiff no.2 to plaintiff no.1 on 11.11.99 and by plaintiff no.1 to other persons is mentioned in sq. yards and not in Bighas which has been used as the measurement unit for the whole land. It is being said so as the measurement of Bigha is not uniform in all states and at all places.
22. Apart from this, the plaintiffs have brought in evidence Ex.PW-1/3 and Ex.PW-1/25 Khasra Girdawris to show possession of Bhule and change of rights in favour of the plaintiffs and consequent possession of plaintiff no.2. With respect to these documents, three things may be noted. Firstly, change of rights and possession, is on the basis of mutation which has already been noted as not reliable in the present case. Secondly, in the context of the observations made in the preceding paragraph regarding incongruity of area, its demarcation and second transfer to plaintiff no.1 by plaintiff no.2 and subsequent transfer to other people, it is to be taken into account that in Ex.PW-1/25, area shown in possession of plaintiff no.1 is 2 Bigha and 17 Biswa in Khasra no. 45/1 and 1 Bigha and 13 Biswa in Khasra no. 50/1, totalling to 3.3 Bighas. Moreover, no details about the rest of the land have been shown in Khasra Girdawri. As already noted, the area HELLY Digitally signed by HELLY FUR CS No.96168/16 FUR KAUR Date: 2022.01.15 Pg 27 of 34 KAUR 17:09:14 +0530 Om Parkash & Anr. v. Dinesh & Anr.
sold to other (unknown) persons has been mentioned in the plaint in square yards and not Bighas, therefore the court cannot ascertain the consistency between Khasra Girdawri and the contentions in the plaint. At this stage, I may also note that there is no presumption of genuineness in favour of Khasra Girdawris under Punjab Land Revenue Act, being not record-of- rights (Gurbachan Singh and Ors vs. Prithi Singh and Ors AIR 1974 SC 223). During cross-examination, PW-1 admitted that though plaintiffs and he himself never did any cultivation on the land but Patwari had mentioned Khudkasht in Khasra Girdawri himself. This also creates doubt over the entries in the document.
23. Before concluding, it is also quite noteworthy that PW-1 also admitted in the cross-examination that when their labour was laying DPC over the suit property, defendants did not argue or quarrel with him or the plaintiffs which is in complete contrast with the plaint. Further it cannot be ignored that in the complaint to police Mark C, D and E, the date of the incident is mentioned as 16.06.2006 whereas in the plaint it is 06.06.2006.
24. In view of the the above findings, it can be said on the basis of the material and evidence available, that plaintiffs are neither in possession of nor having title of the suit property.
25. Hence, this issue is decided against the plaintiffs and in favour of defendants.
HELLY Digitally signed
CS No.96168/16 FUR
by HELLY FUR
KAUR Pg 28 of 34
Date: 2022.01.15
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Om Parkash & Anr. v. Dinesh & Anr.
ISSUE NO.2
Whether the defendant No.1 is the owner and in possession of the suit property? OPD.
26. Since the plaintiffs could not prove their case in the first place as per the findings under issue no.1, therefore the onus did not shift upon defendants and findings on this issue would not affect the fate of the suit. Nonetheless, since Ld. Predecessor had framed an issue that whether the defendants are owner and in possession of the suit property, I am bound to give my findings on the same. In this regard, at the outset, it is to be taken into account that the defendants have not averred in the written statement as to how they are entitled to the suit property since the chain mentioned in the property starts from Sh. Bhule and ends at Sh. Mohan Lal Negi. Though there is a mention that defendant no.1 (Chander Prakash as per written statement) is the owner of the property however, it cannot be taken without a pinch of salt that the details in the written statement have been given in part and it becomes a material omission since the initial chain is mentioned. At this point, I may remind myself that evidence cannot go beyond pleadings. However, I may still consider the evidence since an assertion of ownership has been made in the pleadings by the defendants.
27. For examining this, documents relied upon by the defendants have to be seen. For the sake of convenience, I shall discuss them one by one: Digitally signed
HELLY by HELLY FUR
KAUR
FUR Date:
2022.01.15
CS No.96168/16 KAUR 17:09:36 +0530 Pg 29 of 34
Om Parkash & Anr. v. Dinesh & Anr.
• The first document relied upon by the defendants i.e., Ex.PW-1/D2 GPA
executed by Sh. Bhule in favour of Sh. Raj Kumar is a registered document and has to be presumed as genuine unless rebutted. Though Sh. Raj Kumar or any attesting witness was not examined by the defendant, however, there was not sufficient rebuttal on this document. • Second set of documents from the chain is Ex.DW-1/1 original sale deed dated 26.05.1999 and Ex.DW-1/2 certified copy of sale deed dated 26.05.1999 executed by Sh. Raj Kumar in favour of Sh. Mohan Lal Negi. The same being registered can be presumed to be genuine as far as execution is concerned.
• The third set of documents is General Power of Attorney Ex.DW-1/3 allegedly executed by Sh. Mohan Lal Negi for 1 Bigha and 2 Biswa out of Khasra no.45/1 in the name of Sh. Devi Dayal and appending affidavit, agreement to sell, receipt and possession letter (Ex.DW-1/4 to Ex.DW-1/7). It is indispensable to note that none of the documents bears any date. Further, the documents are not registered. Therefore, only a competent witness could have proved these documents. Evidently, DW-1 was neither the attesting witness or party to the documents nor it has come on record that he was present when documents were executed. Though Sh. Suresh Kumar, who seems to be one of the attesting witnesses, was called as defendant's (counter claimant's) witness, however the documents were not relied by him in his affidavit nor they were shown to him during evidence. Digitally signed
HELLY by HELLY FUR
KAUR
CS No.96168/16 FUR Date:
Pg 30 of 34
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Therefore, documents do not stand proved. It is also interesting to note that documents do not mention previous chain or how Sh. Mohan lal is the owner of the property.
• Fourth set of documents is Mark DB to DF i.e., the GPA and appending documents executed by Sh. Mohan Lal Negi in favour of Sh. Vijay Kumar qua 3 Bigha and 2 Biswa of Khasra no.50/1. These documents have same status as of Ex.DW-1/3 to 1/7 being undated, unregistered and also unproved. Besides, these are mere photocopies and no explanation has come on record for not filing or producing the original. • Fifth set of documents is the GPA dated 23.07.2001 Ex.DW1/8 executed by Sh. Devi Dayal in favour of defendant No.1 for 1 Bigha 2 Biswa out of Khasra no. 45/1 along with will, agreement to sell, affidavit, receipt and possession letter (Ex.DW-1/9 to Ex.DW-1/13). Firstly, these documents are of no value as the document on the basis of which Devi Dayal derived interest has not been proved. Secondly, it may be noted that to the contrary, there is a reference of a registered GPA dated 29.08.2000 executed by Sh. Mohan Lal in favour of Sh. Devi Dayal in the first paragraph itself, however, it is incomplete with respect to registration number etc whereas complete details of documents in favour of Mohan Negi have been given. This fact cannot be taken without an element of caution, more so because the Ex.DW-1/3 has not been proved and the registered GPA mentioned in this document has not been brought on record.
HELLY Digitally signed
by HELLY FUR
CS No.96168/16 FUR KAUR
Date: 2022.01.15
Pg 31 of 34
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• Coming to the last set of documents i.e., Ex.DW-1/14 to Ex.DW-1/19 which
are GPA and appending documents executed by Sh. Vijay Kumar in favour of defendant No.1, they have exactly same status as that of Ex.DW-1/8 to Ex.DW-1/13 and therefore observations are hereby reiterated. Moreover, even otherwise, the total area alleged to be sold by Sh. Mohan Lal Negi in favour of Sh. Devi Dayal and Sh. Vijay Kumar is cumulatively 4 Bigha 4 Biswa which is not in consonance with the pleadings and the rest of the record, as the total area has been claimed as 5 Bigha and 4 Biswa. • Besides these documents, two Wills Mark DA and D6, executed by Sh.
Mohan Lal Negi in favour of Sh. Devi Dayal and Sh. Vijay Kumar respectively have been brought on record. The wills despite being registered have been filed merely in a photocopy form rather than in Original or certified form. Even otherwise, a property gets transferred on the basis of a Will once the testator dies, which has not been pleaded by the defendant.
28. On the basis of above analysis, it can be safely concluded that the chain of transfer of title/interest at best can be deemed to be proved till Sh. Mohan Lal Negi and not thereafter. Therefore, even defendants could not discharge the onus to prove their ownership since no one can transfer a better title than he himself has. Before concluding, even otherwise, it is inevitable to mention that defendants have relied upon GPA, agreement to sell etc in their favour which are not valid sale documents but can rather be a prelude to sale or an authorization for dealing with the property. It is a settled law Digitally signed HELLY by HELLY FUR CS No.96168/16 FUR KAUR Date: 2022.01.15 Pg 32 of 34 KAUR 17:10:04 +0530 Om Parkash & Anr. v. Dinesh & Anr.
now that the property can be transferred by way of sale only through a registered sale deed in terms of provisions of Transfer of Property Act,1882 and GPA or like documents short of those requirements cannot be considered as transfer documents. (Suraj Lamps v. State of Haryana 2011 (183) DLT 1).
29. Hence, this issue is decided against the defendants and in favour of plain- tiffs.
ISSUE NO.3 Whether the plaintiff is entitled to permanent injunction as prayed for? OPP.
30. Plaintiffs have claimed, injunction restraining the defendants from interfering in possession of plaintiff no.1 on suit land or disturbing plaintiffs in any manner or in putting any type of obstructions in peaceful use and occupation of suit land admeasuring 5 Bigha and 4 Biswa bearing Khewat no.13/13, Khatoni no.14, Khasra no.45/1 (2-17) and 50/1 (2-7), Village Dindarpur, Tehsil Najafgharh. It is trite to say that as per section 38 of Specific Relief Act, 1963, such an injunction can be granted when plaintiff proves that defendant had an obligation in favour of the plaintiff and the same has been either breached or there is apprehension of breach. As already discussed under issue no.1, plaintiffs could not prove their possession or title over the suit property. Therefore, the plaintiffs cannot be held entitled to the injunction claimed for. It is not out of place to mention that plaintiffs cannot take benefit of flaws in the case of defendants HELLY Digitally signed CS No.96168/16 FUR by HELLY FUR KAUR Pg 33 of 34 Date: 2022.01.15 KAUR 17:10:13 +0530 Om Parkash & Anr. v. Dinesh & Anr.
therefore, the findings under the second issue would not affect the adjudication of this issue.
RELIEF.
31. In view of the above findings, it is held that plaintiffs have not been able to prove their case. Therefore, suit of the plaintiffs is dismissed. No order as to costs.
32. Decree sheet be prepared accordingly.
33. File be consigned to Record Room. HELLY Digitally signed by HELLY FUR FUR KAUR Date: 2022.01.15 KAUR 17:10:28 +0530 Announced in the open court (Virtually) (HELLY FUR KAUR) on 15.01.2022 Civil Judge - 08 (Central)/Delhi CS No.96168/16 Pg 34 of 34