Delhi District Court
The Gauri Shankar Man vs Sh. Banwari Lal Dubey @ Shanti Dev Pujari ... on 22 October, 2024
IN THE COURT OF MS. SHILPI M JAIN : DISTRICT JUDGE-05,
SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI
CS DJ ADJ/16222/2016
CNR No. DLSW010000672012
IN THE MATTER OF:
GAURI SHANKAR MANDIR
THROUGH AUTHORISED TRUSTEE
SMT. KANTA VERMA
W/O LATE SH. SUDESH KUMAR VERMA
R/O. RZ-A-22, GALI NO. 3,
DWARKA PURI, VIJAY ENCLAVE,
NEW DELHI-110045 ...........PLAINTIFF
VERSUS
1. BANWARI LAL DUBEY @ SHANTI DEV PUJARI
S/O LATE SH. SHIV BALAK
R/O VILLAGE-NIWATHAI,
P.S. PAILANI, DISTRICT-BANDA,
UTTAR PRADESH
2. SMT. SURJAN DEVI
W/O SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI
3. SH. RAM SHARAN
S/O SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI
4. SH. SHIV SHARAN
S/O SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI
ALL PRESENTLY RESIDING AT
RZ-3/4A, GALI NO. 2 DWARKA PURI,
CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 1 of 29
VIJAY ENCLAVE,
NEW DELHI-110045.
5. SH. PRAMOD KUMAR BHAGAT
S/O SH. BABU LAL BHAGAT,
R/O RZ-B/2/19, VIJAY ENCLAVE,
NEW DELHI-110045.
6. SH. YASH RAM PAHALWAN
S/O SH. DEEP CHAND
R/O RZ-A1, DWARKA PURI,
VIJAY ENCLAVE,
NEW DELHI-110046
..............DEFENDANTS
Date of Institution : 01.09.2012
Date of Arguments : 09.09.2024
Date of Judgment : 22.10.2024
SUIT FOR POSSESSION, PERMANENT INJUNCTION AND
DECLARATION
JUDGMENT
INDEX FACTUAL BACKGROUND ....................3 ISSUES ..................10 EVIDENCE GIVEN BY PARTIES ..................11 SUBMISSIONS OF THE PARTIES ..................14 ISSUEWISE ANALYSIS & FINDINGS ..................17 CONCLUSION ..................29
1. Present suit for Declaration, Possession and Permanent Injunction filed by the plaintiff seeking following prayer:
CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 2 of 29 i. to pass a decree of possession in favour of the plaintiffs and against the defendants, directing the defendants to vacate and handover the vacant peaceful possession premises/Mandir bearing of Suit No.RZ-3-4A, Gali No.2, Dwarka Puri, Vijay Enclave New Delhi, measuring 425 sq. yards duly built-up specifically shown in the site plan attached herewith;
ii. to pass a decree of permanent injunction in favour of the plaintiffs and against the defendants thereby restraining the defendants, his agents, servant, associates, representative, assignee, etc. from parting with the possession, alienating, disposing off and from creating third party interest in respect of the premises/Mandir bearing No.RZ-3-4A, Gali No.2, Dwarka Puri, Vijay Enclave New Delhi, measuring 425 sq. yards duly built-up specifically shown in the site plan attached herewith. As defendant no. 5 in orange colour, defendant no.4 in maroon colour and defendant no. 6 in green colour, remaining with defendant no. 1 and 2. iii. to pass a decree of declaration in favour of the plaintiffs and against the defendants fabricated the who forged manipulated, documents to transfer the suit property in their own name and occupied the suit property illegally and unlawfully in respect of the premises/ Mandir bearing No. RZ-3- 4A, Dwarka Gali No.2, Puri, Vijay Enclave New Delhi, measuring 425 sq. yards duly built-up, are declared to be null and void as specifically shown in the site plan attached herewith. iv. to grant the cost of the suit in favour of the plaintiffs and against the defendants;
v. Pass any other or further order as this Hon'ble Court may deem fit and proper, in the interest of justice.
FACTUAL BACKGROUND:
2. Plaintiff i.e. Gauri Shankar Mandir Trust filed present suit through its SPA vide Resolution dated 04.07.2012 and Special Power of Attorney dated 06.08.2012. It is averred that, the Gauri Shankar Mandir Trust (hereinafter referred as the "the Trust") was registered under the Trust Deed with the Sub-Registrar, New Delhi vide registration No. 4140, Book No.4, Vol. No.1242 on pages 75 to 80 dated 23.09.1985. It is further averred that, the Trust was created to manage and run or perform the pooja ceremonies in CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 3 of 29 the temple known as "Gauri Shankar Mandir" smoothly, where the pooja ceremony of Lord Shiv Pariwar, Lord Ram Darwar, Lord Radha Kishan, Durga Mata and Lord Hanuman may continue for religious purposes. It is further averred that, the Gauri Shankar Mandir is situated in a plot measuring 100 sq yards bearing No. RZ-A22, Gali No.3, 173 Dwarka Puri, New Delhi.
3. It is further averred that, Sh. Sudesh Kumar Verma being the Chairman of above said Trust has purchased another piece of plot measuring 350 sq. yards, (sizing 52.5 x 60') out of Khasra No.27/20/1/2, situated in the area of Village Dabri, abadi known as Dwarka Puri, New Delhi and now known as RZ-3/4A, Gali No.2, Dwarka Puri, New Delhi from Sh. Suraj Bhan S/o. Sh. Khem Chand R/o. Gali No.6, Sagarpur, New Delhi on 07.07.1986 by way of General Power of Attorney, Agreement to Sell, Affidavit and Receipt of consideration amount duly received and signed by the executant. It is further averred that, said plot was adjacent and just behind the Gauri Shankar Mandir in Gali No.2, Dwarka Puri, New Delhi, which became the part of Mandir. It is further averred that, one religious lady Smt. Rajbir Devi W/o. Late Sh. Gajraj Singh R/o. Dwarka Puri, Village Dabri, Palam, New Delhi- 110045 has also donated a piece of plot measuring 75 sq. yards out of her plot measuring 225 sq. yards of Khasra No.6/6, situated in the area of Village Mirzapur, abadi known as Dwarka Puri, New Delhi, just adjacent to a plot measuring 350 sq. yards which was already purchased by the Trust. As such, Trust owned a plot measuring 425 sq. yards which became the part of Gauri Shankar Mandir. It is further averred that, the same very plot has been constructed a big hall where the holy picture of Lord Hanuman and Mata Kali Devi were established where the pooja ceremonies also continuing. It is further averred that, in other portion the rooms were built-up so that pujaris of the temple could reside in the premises of the temple.
CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 4 of 29
4. It is further averred that, in the month of February 1986 Sh. Sudesh Kumar Verma, Chairman of the Trust went for Puja to the Lord Jhilmilgupha, Neelkhanth Uttarakhand, Mahadev, where defendant No.1 met him, who stated that he is found of God and alone in the world and wishes to continue the worship of Lord Shiva. It is further averred that, keeping in mind that the defendant No.1 is holy person, he was invited to be a Pujari in the Gauri Shankar Mandir and when defendant No.1 came to the Temple plaintiff No.1 offered him to be a Pujari in the Gauri Shankar Mandir. It is further averred that, the meeting of Trust was held where the defendant No.1 was allowed to work as a Pujari in the above said Mandir, who started residing in another plot measuring 425 sq. yards, which was a part of Temple where Lord Hanumana and Maa Kali were established and the Pujari known as Shanti Dev Pujari start residing in the same very part of plot of Mandir and continued to be a Pujari upto the year 2009.
5. It is further averred that, in the year 1998, the brother of Sh. Sudesh Kumar Verma (Chairman of Trust) namely Sh. Satish Kumar Verma died and due to the compelling circumstances Sh. Sudesh Kumar Verma left Delhi with his family and start residing at H. No. 701, Gall No.4, Janakpuri, Ludhiana, Punjab to look after the family of his late brother and the ancestral property. It is further averred that, the whole Mandir was left in the care and custody of the defendant No.1, and Sudesh Kumar Verma (Chairman of Trust) continued to visit the Mandir for one or two days during this period. It is further averred that, the defendant No.1 lost his honesty and dignity, misappropriated the Trust Funds by fabricating and manipulating the receipt for which the contribution was received from the doners. It is further averred that, when plaintiff No.1 started residing after the death of his brother at Punjab, the defendant No.1 wrote a letter to the Chief Counsellor of MCD with copy to General Secretary of the Trust, to get the financial help from the CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 5 of 29 authority as he was unable to run the temple, whereby admitting that the suit property is the part of temple belonging to the trust.
6. It is further averred that, plaintiff No.1, came to know that the respondent No.1 and his son are using the suit property for anti- social activities, he was given letter to remove the same and vacate the suit premises, however, he sold it with the forged documents. It is further averred that, it was also revealed that defendant No.1 is a married person, having his family consisting wife, three daughters and two sons, who also joined the defendant No.1 in the year 2000 and also started residing in the Mandir premises, without the consent and knowledge of the Trust. It is further averred that, the wife is the defendant No. 2 and two sons namely Ram Sharan and Shiv Sharan are defendant No. 3 and 4 respectively. It is further averred that, marriage of daughter of defendant no. 1 was also solemnized in the suit property itself wherein the Trust helped the respondent No.1 financially as well as physically.
7. It is further averred that, the defendant No.1 in connivance with defendant No.2 to 4 has succeeded in manipulating and fabricating the forged documents as title deed of the Trust land measuring 425 sq. yards where the defendants are residing at present, which is the property of the Trust. It is further averred that, defendant no. 1 also succeeded in transferring 100 sq. yards in the name of his wife who is defendant No.2 and also transferred 90 sq. yards each in the name of defendant No.2 and 3 by way of forged and fabricated documents as shown the sale deed of the suit property of the Trust as shown in the site plan.
CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 6 of 29
8. It is further averred that, after coming to know about forgery committed by defendants in the year 2008, defendant No.1 was removed from Pujari of the said Mandir by way of sending him letter and kept the another Pujari to perform the Pooja ceremonies in the Temple, however, the defendant No.1 alongwith defendant No.2 to 4 illegally and forcibly continued to reside in the suit premises bearing No. RZ-3-4A, Gali No.2, Dwarka Puri, Vijay Enclave, New Delhi and still are residing in the same very premises. It is further averred that, the defendant No.1 not only occupied the suit premises illegally and forcibly but even rented four rooms to the tenant and kept all the rent money himself and not deposited the rent money to the Trust. It is further averred that, when the defendant No.1 removed from the said Temple as Pujari, he threatened the Chairman and others members of the Trust with the dire consequences. Plaintiff no. 1 has made many complaints to the police and the other authorities but to no avail. It is further averred that, during this period, the defendant No.1 has further sold another piece of land measuring 100 sq. yards to the defendant No. 5 on the basis of false and fabricated documents. This matter was also reported to the concerned PS Dabri and Kalandara u/s 107/150 Cr.P.C. was prepared.
9. It is further averred that, when the defendant No.1 removed from the Pujari, Sudesh Kumar Verma (Chairman of Trust) received threatening call on 27.10.2009 to face the dire consequences. It is further averred that, the respondent No.1 alongwith many other land mafia entered into the temple 14.11.2009 at about 5.30 PM and asked about the Chairman, who was not present in the temple at that time and the defendant No.1 alongwith his associates attacked the Guru Bhai Sh. Balbir Singh, who was present in the Mandir and beaten him mercilessly due to which he suffered serious injuried and got admitted to Deen Dayal Hospital, however, he died after a week. The CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 7 of 29 matter was reported to the police P.S. Dabri on dated 18.11.2009 but no action has been taken against the respondents.
10. It is further averred that, that on 03.07.2012 at about 1.30 PM, the defendant No. 6 start demolishing the wall of the Trust Land/Mandir measuring 425 sq. yards and upon resistance from locality persons he told that he has purchased 100 sq. yards land from the defendant No.1. Complaint was raised to police authorities in this regard. It is further averred that, finding no other option, plaintiff has filed the present suit.
11. Summons were issued to all defendants who filed their Written Statements.
WS FILED BY DEFENDANT NO. 1 TO 512. In their WS defendant no. 1 to 5 stated that the present suit is not maintainable because the Plaintiff has not approached the Hon'ble Court with clean hands and concealed the true facts and has filed the present Suit with sole objective to harass the answering defendants to put undue pressure on the defendants. It is further stated that the suit is also under valued and this court has no jurisdiction to entertain the same. It is further averred that, there is no cause of action whatsoever in favour of the Plaintiff and against the defendants as alleged in the Suit as such the present is liable to be dismissed with exemplary cost. It is further averred that, the plaintiff was never in possession of the property in question and the documents of the plaintiff clearly shows that same are false and fabricated documents.
13. It is further stated that the plaintiff has not filed any revenue record to show that khasra no. 27/20/1/2 situated in the area of village-Dabri belong to Shri Surajbhan and khasra no. 6/6, situated in the area of village-
CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 8 of 29 Mirzapur belong to Smt. Rajbiri or after his alleged sale the name of the plaintiff has been mutated in the land revenue records and that the plaintiff has forged and fabricated the documents. It is further stated that, the suit of the plaintiff is barred under the provisions of section 34 of the Specific Relief Act as the plaintiff has not sought declaration qua his right and even the documents filed on records does not show of the back page of the stamp paper which clearly show the validity of the same. It is further averred that, defendant had already filed many criminal complaints against the plaintiff Trust's chairman Sudesh Kumar Verma and a FIR no. 405/2011 has been registered against him and his accomplice for attempt to murder under Section 307 IPC with the police station Dabri. It is further submitted that, plaintiff filed many frivolous cases against the defendant to pressurize the defendant to withdraw his cases. It is further stated that the chairman of the plaintiff trust got filed the present suit after fabricating the ownership documents.
14. It is further submitted that, the defendant no.1 got purchased the suit property i.e. the plot bearing no. RZA-3, Gali no.2, Khasra no.29/20/1/2 area measuring 413 Sq. Yard falling in village Dabri now known as Dwarkapuri, Vijay Enclave, Delhi from the Gram Sabha lease holder Sh. Ratan Singh s/o Sh. Chet Ram, Amar Singh S/o Neki Ram, Raj Singh S/o Bhartu Ram and Sube Singh S/o Bhartu Ram on 16.02.1988 at the sale consideration of Rs. 80,000/- vide GPA, will, agreement to sell and cash receipt. The defendant no.1 divided the property in four part under family settlement and transferred one part area 100 Sq. yard to defendant no.2 on 02.06.2003, second part area Sq. Yard to defendant no.3 on 22.05.2003 and third part area 90 Sq. yard to defendant no.4 on 03.04.2003 through agreement to sell, Registered GPA and will. That defendant no.5 got purchased the 100 sq yard plot from the son of defendant no.1 through GPA, CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 9 of 29 SPA, Will and agreement to sale. It is further submitted that the plot measuring 100 sq. yard bearing no. RZ-A-22, Gali no. 3, Dwarkapuri, New Delhi was illegally encroached by Sh. Sudesh Kumar Verma, Chairman of plaintiff trust and he fabricated the title documents dt. 15.03.1984 executed by Suraj Bhan in his favour for construction of temple. It is further submitted that plaintiff was not in possession of property in question as no documents filed by plaintiff regarding the ownership of previous owner Suraj Bhan. The khasra no. 27/20/1/2 area 3-7, was in the name of Gram Sabha. It is submitted that the documents dt. 15.03.1984 for the area 100 sq. yards and document dt. 07.08.1986 for the area 350 sq. yards executed by Suraj Bhan in favour of plaintiff trust are attested by same notary public and same witness but signature of witnesses and seller are different and seal impression of notary public also different. It is further submitted that the present suit is false, fictitious, baseless and is liable to be dismissed with exemplary cost. In his parawise reply, defendant no. 1 to 5 denied all the contents of the plaint.
WS FILED BY DEFENDANT NO. 615. In his WS, defendant no. 6 in his para-wise reply denied all the contents of the plaint and submitted that defendant no. 6 was not present at all on the spot on 03.07.2012 at about 01.30 PM and plaintiff has falsely and maliciously implicated defendant no. 6 in this case and he has no concern with the suit property in any manner. However, as none appeared on behalf of defendant no. 6 thereafter, he was proceeded ex-parte vide order dated 24.04.2014.
16. No replication to the written statements of defendants has been filed on behalf of plaintiff, despite opportunity.
Issues :
CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 10 of 29
17. From the pleadings of parties, vide order dt. 07.11.2014 following issues were framed:
i. Whether the suit of plaintiff is barred in view of section 34 of The Specific Relief Act as alleged by defendants? OPD ii. Whether the suit of plaintiff is undervalued, if so, how and whether this court has no jurisdiction to entertain and decide the suit as alleged by defendants? OPD iii. Whether the titled documents of the suit property filed by plaintiff are forged and fabricated as alleged by defendants? OPD iv. Whether plaintiff is entitled for decree of possession of suit property as prayed in the suit? OPP v. Whether plaintiff is entitled for decree of permanent injunction as prayed for in the suit? OPP.
vi. Whether plaintiff is entitled for decree of declaration as prayed for in the suit? OPP vii. Relief.
EVIDENCE GIVEN BY PARTIES
18. In support of his case, plaintiff examined only one witness i.e. PW-1 Smt. Kantadevi Verma, W/o Late Sh. Sudesh Kumar Verma who tendered her evidence by way of affidavit Ex. PW1/A on 28.05.2024 and has relied upon the as following documents:
Sl. No. Particulars of Documents Exhibits/Mark
1. Identification proof/Aadhar of plaintiff Ex.PW1/1 (OSR)
2. Copy of Trust deed dt. 03.09.1995 Ex.PW1/2 (OSR)
3. Original GPA, agreement to sell, affidavit Ex.PW1/3 (colly.)
and receipt (page no. 48 to 53)
4. Site plan Ex.PW1/4
5. Copy of GPA in the name Smt. Rajbir Devi Mark PW1/A
(page no. 55 to 59)
CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 11 of 29
6. Copy of donation letter dt. 25.02.1987 Mark PW1/B
7. Copy of letter to the Chief Counsellor of Mark PW1/C MCD dt. 25.02.1987
8. Copy of complaint dt. 18.11.2009 Mark PW1/D
9. Copy of complaints dt. 04.07.2012 Mark PW1/E
10. Copy of complaints dt. 09.07.2012 Mark PW1/F
11. Copy of letter to Commissioner of Police Mark PW1/G (Vigilance) Delhi Police, South West, Dwarka, New Delhi
12. Police complaint dt. 15.12.2022 regarding Mark PW1/H missing of original documents PW1 has been cross-examined on behalf of the Ld. Counsel for the defendant no. 1 to 5 and discharged.
19. Thereafter, plaintiff evidence was closed and the matter was listed for defendant's evidence.
20. In support of its case, defendant no. 1 to 5 examined 3 (three) witnesses in their defence. DW-1 Sh. Banwari Lal Dubey @ Shanti Lal, S/o Late Sh. Shiv Balak, aged about 88 years R/o RZ-3/4 A, Gali no. 2, Dwarka Puri, Vijay Enclave, New Delhi-110001 tendered his evidence by way of an affidavit Ex. DW1/A and relied upon the following documents:-
Sl. No. Particulars of Documents Exhibits/Mark
1. Certified copy of Khatoni issued by the Mark K
revenue department for Khasra no. 27/20/12
2. Copy of GPA/agreement to sell/receipt Ex.DW1/2 (colly.)
3. Copy of house tax receipt Mark F
4. Copy of electricity bill Mark G
5. Copy of ration card Mark H
6. Copy of electricity connection Mark I
7. Copy of electricity bill Mark J
CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 12 of 29
8. Copy of final order of SEM dt. 29.06.2010 Mark A
9. Copy of list of cases against Sudesh Kumar Mark B
10. Copy of GPA, ATS, receipts in favour of Mark C (colly.) Sudesh Kumar
11. Copy of ATS, GPA, payment receipt and Mark D (colly.) affidavit in favour of Kanta Verma
12. Copy of GPA, Will and payment receipt in Mark E (colly.) favour of Ishwar Singh
13. Copy of complaint to the police complaints Ex DW-1/8 dated 27.07.2009, 06.08.2009, 25.08.2009, (Colly).
02.12.2009, 16.12.2009, 30.01.2010, 18.02.2010, 13.07.2010, 09.12.2011, 01.12.2011, 14.12.2011, 17.12.2011, 24.12.2011, 02.01.2012, 04.01.2012, 03.02.2012, 04.02.2012.
14. The certified copy of court proceedings in the Ex DW-1/9 (colly).
case FIR no. 405/2011 PS Dabri
15. Certified copy of statement of Sudesh Kumar Ex.DW1/10 and Shanti Devi dt. 28.02.2013 DW1 has been cross-examined on behalf of the Ld. LAC for the plaintiff at length and discharged.
21. DW-2 Sh. Vimalesh Jha S/o Sh. Radha Kant, aged about 63 years R/o RZ-A-56, Gali no. 3, Dwarka Puri, Vijay Enclave, New Delhi- 110001 tendered his affidavit in evidence which is Ex. DW2/A. DW2 has been cross-examined on behalf of the Ld. LAC for the plaintiff and discharged.
22. DW-3 Sh. Sujeet Kumar @ Shiv Sharan S/o Sh. Banwari Lal, aged about 53 years R/o RZ-3/4 A, Gali no. 2, Dwarka Puri, Vijay Enclave, New Delhi-110001. He relied upon documents already Mark K, Ex.DW1/2 (colly.), Mark F, Mark G, Mark H, Mark I, Mark J, Mark A, Mark B, Mark C (colly.), Mark D (colly.), Mark E (Colly.), Ex.DW/18 (Colly.), Ex.DW1/9 CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 13 of 29 (colly.) and Ex.DW1/10 during the examination of DW1/Sh. Banwari Lal. DW2 also relied upon the some additional documents which are as follows:-
Sl. No. Particulars of Documents Exhibits/Mark
1. Election I card with the name Shiv Sharan Ex. DW3/A (OSR)
2. Election I card with the name Sujeet Kumar Ex.DW3/B (OSR)
3. Property documents i.e. GPA, agreement to Ex.DW3/C (OSR)
sell, affidavit, payment slip, possession
letter and Will in favour of defendant no. 1
4. Original of electricity bill Ex.DW3/D
5. Copy of ration card Ex.DW3/E (OSR)
DW3 has been cross-examined on behalf of the Ld. LAC for the plaintiff and discharged.
23. Thereafter, DE was closed and matter was listed for final arguments.
SUBMISSIONS ON BEHALF OF THE PARTIES
24. Ld. Counsel for plaintiff submits that, the suit property consists of Mandir admeasuring 425 sq. yards wherein 350 sq. yards was purchased by the plaintiff being registered Trust from erstwhile owner namely Suraj Bhan by virtue of GPA, Agreement to sell and purchase, affidavit, receipt for Rs. 31,000/- all dt. 07.07.1986 (Ex.PW1/3) and 75 sq. yards was donated by Late Smt. Rajbiri on 25.02.1987. It is further submitted that, in the year 1986, plaintiff met to the defendant first time who pretends to be a Sanyasi hence, offered defendant to take care the Trust property i.e. the suit property. It is further submitted that, due to some personal exigencies Sh. Suresh Kumar i.e. founder of plaintiff's Trust went to Punjab along with his family in the year 1988 and he appointed defendant as caretaker of the suit property. It is further submitted that, Sh. Suresh Kumar used to visit the suit property regularly but, did not smell any faul play by the defendant until 2008 when it has brought to CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 14 of 29 the knowledge of Late Sh. Suresh Kumar that defendant is impersonating himself as owner of the entire suit property and has created third party right. It is further submitted that, thereafter plaintiff lodged various complaints before statutory authorities and file the present suit. During the course of arguments, Ld. Counsel for plaintiff strongly relied upon deposition given by DW1 and DW3 wherein DW1 specifically admitted that Late Sh. Sudesh Verma has brought defendant to the suit property and appointed as Pujari against salary in following terms:
"Dihat se mujhe Sh. Sudesh Verma ji, Delhi lekar aaye the Gauri Shankar Mandir ke liye. Mandir me mujhe pujari ke kaam ke liye laye the. Mujhe koi tankha nahi milti thi mandir ke kaam ke liye. Mujhe Mandir me aane wale bhagato se 10-20 rupees mil jate the, ussi se apna gujara karta tha. Ye baat galat hai mujhe koi Rs. 600/- tankha nahi milti thi. Mujhe Sh. Sudesh Verma koi Rs. 600/- tankha nahi dete the. Ye baat galat hai ki Sh. Sudesh Verma gujare ke liye mujhe Rs. 2,000/- aur dete the. Jab mein pujari bna toh mein mandir me hi ek kamre me rehta tha. Mujhe mandir ke plot ka number yaad nahi. Mein saal 1985 me mandir me aaya tha"
25. Ld. Counsel for plaintiff also relied upon the testimony of DW3 wherein DW3 admitted that defendant used to do pooja-path in Gauri Shankar Mandir.
26. Per contra, Ld. Counsel for defendant vehemently opposed the submissions made by plaintiff. It is submitted that, as per Trust Deed dt. 03.09.1985 (Ex.PW1/2) there are three founder member and six other members but, present suit is filed by Sh. Sudesh Kumar without any authority letter. It is further submitted that, Late Sh. Sudesh Kumar left for heavenly abode in the year 2017. Thereafter, his wife who is also the founder member of the plaintiff Trust impleaded to the array of the parties vide order dated CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 15 of 29 20.01.2018. It is submitted that, perusal of authority letter as relied upon by Smt. Kanta Verma reveals that the same is signed by her only. Thus, neither Late Sh. Sudesh Kumar nor Smt. Kanta Verma has proper authority to file the present suit. It is further submitted that, as per its own claim, the suit property consists of two separate parcels i.e. 350 sq. yards + 75 sq. yards = 425 sq. yards but, Ex.PW1/2 pertains to land parcel of 350 sq. yards out of Khasra no. 27/20/1/2 situated in the area of village Dabri, abadi known as Dwarka Puri, New Delhi while donation letter i.e. Mark B pertains to plot situated in the area of Village Mirzapur, now known as abadi of Dwarkapuri. It is further submitted that, Mark B is not a legally valid document hence, cannot be relied upon. It is further submitted that, no material placed on record by the plaintiff for possession, tax or bill.
27. Ld. Counsel for defendant relied upon the testimony of PW1 wherein she clearly admitted that no document placed on record to show that, the suit property was earlier owned by Sh. Suraj Bhan or Smt. Rajbiri Devi. It is further submitted that, the suit property pertains to Gram Sabha only and now defendant No. 1to 5 are exclusive owner of the same. It is further submitted that, as per plaintiff it has sold the suit property to one Sh. Rajbir before filing of the present suit but concealed this fact before this court. It is further submitted that, plaintiff has no locus to file the present suit. It is further submitted that, as per Ex.DW1/2 the suit property was measuring only 413 sq. yards only and mutated in the joint name of Sh. Rattan Singh, Sh. Amar Singh, Sh. Raj Singh and Sh. Subey and same was transferred in the favour of defendant herein. It is submitted that, out of 413 sq. yards, defendant no. 1 already disposed off 100 sq. yards each in the favour of defendant no. 2 and 3 in the year 2013 while portion of 90 sq. yards was also transferred in favour of defendant no. 4 and 100 sq. yards is transferred prior to filing of this suit in favour of defendant no. 6. It is further submitted that, CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 16 of 29 defendant no. 3 has also created third party right in favour of defendant no. 5. Lastly, it submitted that, defendant is also having electricity bill in his favour and enjoying uninterrupted and absolute ownership/possession since 1988 thus, also having ownership by virtue of 'doctrine of Adverse possession'. Hence, present suit may be dismissed. Ld. counsel for defendant no. 1 to 5 relied upon following judgment in support of his contention:
1. Duli Chand vs. Mahabir Pershad Trilok Chand dt. 16.09.1983 AIR 1984 Delhi 144;
2. V. Chandrasekaran & Ors. vs. Venkatanaicker Trust & Ors. dt. 29.11.2016 S.A. No. 220 of 2011 & M.P. Nos. 1 of 2011 & 1 of 2015;
3. Sebastio Luis Fernandes (Dead) through Lrs. & Ors. vs. K.V.P. Shastri (Dead) Through LRS. & Ors. AIR ONLINE 2013 SC 579;
4. Radhesyam Pathak (dead) through LRs vs. Kanhaiyaa Gond & Ors.
Decided on 13.07.2021 by High Court of Chattisgarh, Bilaspur
28. In rebuttal, Ld. Counsel for plaintiff submits that, defendant claimed to have purchased the suit property from erstwhile owner but no previous chain is proved. It is further submitted that, plaintiff could not produce previous chain as same is lost.
29. Arguments heard. Record Perused.
ISSUE WISE ANALYSIS:
ISSUE NO. 1 - Whether the suit of plaintiff is barred in view of section 34 of The Specific Relief Act as alleged by defendants? OPD LAW FOR DECLARATION CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 17 of 29
30. Before going ahead, it is imperative to refer the law for Declaration. Section 34, Specific Relief Act 1 provides that a suit against any person denying or interested to deny the plaintiffs' title to the legal character or right to any property can be filed. To obtain the relief of declaration the plaintiff must establish that (1) the plaintiff was at the time of the suit entitled to any legal character or any right to any property (ii) the defendant had denied or was interested in denying the character or the title of the plaintiff,
(iii) the declaration asked for was a declaration that the plaintiff was entitled to a legal character or to a right to property (iv) the plaintiff was not in a position to claim a further relief than a bare declaration of his title. It is a discretionary relief.
31. Hon'ble Supreme Court of India in Deccan Paper Mills Co. Ltd. V Regency Mahavir Properties, Civil Appeal No 5147 of 2016 observed that document though not necessary to be set aside may, if left outstanding, be a source of potential mischief. The jurisdiction under section 39 of the Specific Relief Act, 1877 (which is the pari materia provision to section 31 of the 1963 Act) is a protective or a preventive one. It is to prevent a document to remain as a menace and danger to the party against whom under different circumstances it might have operated.
32. Similarly, in Suhrid Singh V Randhir Singh, (2010) 12 SCC 112, Hon'ble Supreme Court held that where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. In Deccan Paper 1 34. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 18 of 29 Mills Co. Ltd (supra), it was observed that the expression "any person" does not include a third party, but is restricted to a party to the written instrument or any person who can bind such party. It was further observed as under:
"The incongruous result of section 31 of the Specific Relief Act being held to be an in rem provision. When it comes to cancellation of a deed by an executant to the document, such person can approach the Court under section 31, but when it comes to cancellation of a deed by a non-executant, the non- executant must approach the Court under section 34 of the Specific Relief Act, 1963. Cancellation of the very same deed, therefore, by a non-executant would be an action in personam since a suit has to be filed under section 34. However, cancellation of the same deed by an executant of the deed, being under section 31, would somehow convert the suit into a suit being in rem."
33. Plaintiff is claiming decree of possession, permanent injunction for bearing No. RZ-3-4A, Gali No.2, Dwarka Puri, Vijay Enclave, New Delhi as well as decree of declaration against ownership documents relied upon by defendant for property bearing No. RZ-3-4A, Gali No.2, Dwarka Puri, Vijay Enclave, New Delhi as forged and fabricated to be declared as null and void.
34. Main contention of the defendant is that the plaintiff has not sought declaration qua his right and even the documents filed on record does not show any back page of the stamp paper which clearly shows the validity of the same. However, defendant failed to lead any evidence with this respect. Even otherwise, Plaintiff is dominus litis in civil proceeding which benefits from favorable judgment and is liable for the effects of an adverse judgment, is any. Thus, considering the facts and circumstances of the present case, this issue is decided against the defendants.
CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 19 of 29 ISSUE NO. 2 - Whether the suit of plaintiff is under valued, if so, how and whether this court has no jurisdiction to entertain and decide the suit as alleged by defendants? OPD
35. In terms of Section 7 (v) of the Court Fees Act, 1870, in suits for the possession of land, houses and gardens Court Fees is to be paid as per the value of the subject-matter. In the present suit, plaintiff has valued his relief as follows;
"18. That the value of the suit for the purpose of court fee and jurisdiction is fixed Rs.17,00,000/-, for the purpose of possession and declaration and ad-valorum court fee of Rs.20,000/- has been paid on the plaint and Rs. 130/- for purpose of permanent injunction and requisite court of Rs.13/- has been paid in the plaint."
36. Onus of above issue was upon defendants. But, they failed to lead any evidence to contradict above valuation. Considering the facts and circumstances of the present case, this court is of the opinion that the present suit is properly valued. So far as the objection w.r.t. the jurisdiction of this court is concerned, Sec. 16 of CPC2 provides that suit is to be instituted where subject matter situate. Since present property is a suit property is situated in Dwarka Puri, Vijay Enclave, this court is having jurisdiction to entertain and adjudicate the present dispute between the parties. Hence, this issue is also decided in favour of plaintiff and against the defendants. 2 16. Suits to be instituted where subject-matter situate.--Subject to the pecuniary or other limitations prescribed by any law, suits--
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
(d) or the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.
CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 20 of 29 ISSUE NO. 3 - Whether the titled documents of the suit property filed by plaintiff are forged and fabricated as alleged by defendants? OPD ISSUE NO. 4 - Whether plaintiff is entitled for decree of possession of suit property as prayed in the suit? OPP ISSUE NO. 5 - Whether plaintiff is entitled for decree of permanent injunction as prayed for in the suit? OPP.
ISSUE NO. 6 - Whether plaintiff is entitled for decree of declaration as prayed for in the suit? OPP
37. Since, above issues are inter-linked, all are taken simultaneously.
Contention of the defendant is two fold. Firstly, description of the suit property as given by the plaintiff is not correct hence, cannot be relied upon. Secondly, to claim ownership, plaintiff relied upon two sets of documents i.e. GPA, Agreement to Sell, Affidavit, Receipt all dt. 07.07.1986 executed by one Sh. Suraj Bhan for 350 sq. yards and donation letter dt. 25.02.1987 issued by Smt. Rajbiri for 75 sq. yards but, same cannot be relied upon due to vague and various discrepancies i.e. absence of previous chain, description of property given in donation letter as situated in village Mirzapur Abadi of Dwarkapuri while the suit property is situated at village Dabri.
38. It is further submitted on behalf of defendants that plaintiff's Trust neither able to prove its title nor possession in its favour rather, it is guilty of concealing material facts from this court as Chairman of plaintiff's Trust transferred the title of the suit property in favour of Rajbir Singh vide GPA, Agreement to Sell, Affidavit, possession letter, receipt and Will all dt. 01.12.2011.
CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 21 of 29
39. It is well settled law that, where the subject matter of the suit is immovable property, the plaint shall contain description of property sufficient to identify it in terms of Order VII Rule 3 CPC. In the present matter, plaintiff is seeking possession of the suit property being the owner as well as declaration against title document executed in favour of defendant as null and void being forged and fabricated. Plaintiff bifurcated the suit property into two portions i.e. Plot admeasuring 350 sq. yards purchased by the Trust on 07.07.1986 and adjacent plot admeasuring 75 sq. yards i.e. donated by Smt. Rajbiri Devi vide donation letter dt. 25.02.1987. For the purpose of clarification, contents of donation letter is reproduced here-in-below:
"Out of my religious inclinations, I do hereby donate a portion of land of my said plot No. 5 measuring 75 sq. yds i.e. 11'.3"x606 which falls exactly on the back of the temple for the specific purpose of erecting rooms therein a Dharamshala to the used for residence of the saints, sadhus and other visitors. This portion of the Dharamshala will be deemed as part of the temple."
40. This court carefully gone through the description of the suit property given by the plaintiff. As per the averment made in the plaint, suit property consists of 425 sq. yards and it is the claim of plaintiff that it has purchase 350 sq. yards from one Sh. Suraj Bhan and received 75 sq. yards in donation. But, site plan as Ex.PW1/4 does not bear any description or measurement of the suit property.
41. In its plaint, plaintiff claimed to have appointed defendant as Pujari in Gauri Shankar Mandir somewhere in February, 1986. It is also averred that, defendant no. 1 was allowed to reside in the suit property which is adjacent to Gauri Shankar Mandir and defendant no. 1 continued to be Pujari upto the year 2009. However, said averment are contradictory to each CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 22 of 29 other as the suit property was purchased on 07.07.1986 (350 sq. yards) and 25.02.1987 (75 sq. yards). Entire claim of the plaintiff is based on the averment that in the year 1998, Chairman of the plaintiff came to know that defendant no. 1 and his sons are using the suit property for anti social activities and served letter to them but, same was sold with forged document. It is well settled law that, any person entitled to any legal character or to any right as to any property may institute a declaratory suit against any person denying said right as per Sec. 34 of Specific Relief Act, however, Article 58 of Limitation Act, 1963 specifically provide period of limitation of three years when the right to sue first accrues. Admittedly, present suit was instituted on 01.09.2012. However, no plausible reason is given by the plaintiff that what precluded it to initiate legal action against defendant when he suspected foul play against defendant no. 1 and his sons.
42. Section 17 of the Limitation Act3, which deals with the effect of fraud and mistake. Thus, when the plaintiff relies on Section 17(1) (b) of the Limitation Act asserting fraud or mistake, he has to state the date on which he has discovered the fraud or mistake, and also state that he could not have discovered the fraud or mistake with reasonable diligence on a date earlier than on which he has based his cause of action
43. The general principle, which also manifests itself in Section 17 of the Limitation Act, is that every person is presumed to know his own legal 3 17. Effect of fraud or mistake.--(1) Where, in the case of any suit or application for which a period of Limitation is prescribed by this Act,--
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of Limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production.....
CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 23 of 29 right and title in the property, and if he does not take care of his own right and title to the property, the time for filing of the suit based on such a right or title to the property is not prevented from running against him. The provisions of Section 17(1) embody fundamental principles of justice and equity, viz. that a party should not be penalized for failing to adopt legal proceedings when the facts or the documents have been willfully concealed from him and also that a party who had acted fraudulently should not be given the benefit of limitation running in its favour by virtue of such frauds.4
44. In her testimony, PW1 made following deposition:
"9. The deponent says that in the absence of her husband, who shifted to Punjab temporarily but defendant no.1 and his sons had started using the suit property for antisocial activities, the defendant no. 1 had given letter to remove the same and vacate the suit property however he always promised to vacate the same, Despite this fact, defendant no 1 sold it with the forged documents.
10. The deponent says that the defendant no.I who earlier stated to be alone in the world. later on the trust found that he is a married person, having his family consisting wife three daughters and two sons, who also joined the defendant no.1 in the year 2000 and also started residing in the Mandir premises, without the consent and knowledge of the trust. The wife is a defendant no.2 and two namely Ram Sharan and Shiv Sharan are defendant no 3 and 4 respectively. When his daughter reached to the marriageable age, their marriages were solemnized in the suit property itself where the Trust has helped the defendant no.1 financially as well as physically.
11. The deponent says that the defendant no.1 in connivance with defendant no.2 to 4 has succeed in manipulating and fabricating the forged documents as title deed of the Trust Land measuring 425 sq. yards where the defendants are residing at present, which is the property of the Trust, The defendant no.1 also succeeded in transferring 100 sq. yards in the name of his wife, who is a defendant no.2 and 3 by way of forged and fabricated documents as shown the sale deed of the suit property of the Trust as shown in the site plan.
12. The deponent says that when her husband came to know that the defendant no.1 has fabricated the titled documents in favour of his family members to grab the Trust land, he came to Delhi and asked about the forging of the false documents and misappropriation of the 4 Pallav Sheth v. Custodian and Others, (2001) 7 SCC 549 CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 24 of 29 Trust funds, Thereafter, the defendant no.1 was removed as pujari of the said mandir by way of sending him letter and kept the another pujari to perform the pooja ceremonies in the temple. However, the defendant no.1 alongwith defendants no.2 to 4 illegally and forcibly continued to reside in the suit premises bearing no. RZ-3-4A, gali no. 2, Dwarka Puri, Vijay Enclave, New Delhi and still are residing in the same very premises. The defendant no.1 not only occupied the suit premises illegally and forcibly even rented four rooms to the tenant in the very said premises who are still residing as tenant and the rent money are being pocketed by the defendant no.1 itself, and never deposited the rent money to the Trust.
13. The deponent says that when the defendant no.1 was removed from the said temple as pujari, he threatened to her husband and other members of the Trust with dire consequences, the husband of the deponent had made so many complaints to the police and the other authorities, however no fruitful action has been initiated against the defendant no.1 to 4. Not only that during this period, the defendant no.1 has further sold another piece of land measuring 100 sq. yards to the defendant no.5.
14. The deponent says that when defendant no.1 was removed from the pujari, her husband received a threatening call on 27.10.2009 at about 9:30 A.M. from the ph. no 955578333 to face the dire consequences. The defendant no.1 alongwith many other land mafia entered into the temple on 14.11.2009 at about 5:30 pm and asked about her husband, who was luckily not present in the temple. At the time the defendant no.1 alongwith his associates attacked the guru bhai Sh. Balbir Singh, who was present in the mandir and was mercilessly beaten who received the serious injuries in his head and other parts of body, and got admitted in the Deen Dayal Hospital, Hari Nagar, New Delhi by the PCR Van, Whose MLC was prepared and after a week he died. The matter was reported to the police P.S Dabri on dated 18.11.2009 but no action has been taken against the defendants. The copy of complaint is marked as Ex. PW1/D"
45. Infact, to the contrary of all pleading and examination in chief, PW1, made following deposition during her cross-examination:
"None of the members are alive except myself of the trust Gauri Shankar Mandir.
At this stage, witness is referred to Ex.PW1/3 (colly.) from the court record.
CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 25 of 29 Q1. Have you filed any authority letter in favour of signatory of above documents on behalf of trust?
Ans. I do not recall.
I am not aware whether the suit property was entered into any revenue record in the name of trust. (vol. My deceased husband namely Late Sh. Sudesh Verma was aware about all this). I do not know whether any document is filed on record to show that Sh. Suraj Bhan and/or Smt. Rajbiri were the owners of the suit property.
It is wrong to suggest that Smt. Rajbiri has not executed any gift deed in favour of trust. I cannot say whether defendant no. 1 got purchased the suit property bearing no. RZ-A-3, Gali no. 2, Khasra no. 27/20/1/2, area measuring 413 sq. yards. in village Dabri from the Gram Sabha Lease Holder Ratan Singh, Amar Singh, Raj Singh and Sube Singh on 16.02.1988 (vol. Kharidi to Sudesh Verma ne hi thi).
It is wrong to suggest that I have filed forged and fabricated documents along with present suit. I cannot say whether present Khasra no.27/20/1/2, Viilage Dabri is in the name of Gram Sabha. It is correct that my husband executed a GPA/agreement to sell for the land measuring 100 sq. yards of Khasra no.27/20/1/2, Viilage Dabri on 30.11.1992 in my favour. It is wrong to suggest that I have sold above 100 sq. yards land to Ishwar Singh on 17.09.1999 (vol. Maine to girvi rakhi thi, bechi nahi thi). It is wrong to suggest that Late Sh. Sudesh Kumar Verma has sold the suit property to Rajbir s/o Sh. Raghveer on 01.09.2017.
At this stage, witness is confronted with GPA and agreement to sell dt. 01.12.2011 from the court record. Same is now exhibited as Ex.PW1/D1 for the purpose of identification only. Q2. Can you identify signatures of your Late husband Sh. Sudesh Kumar Verma at point A on Ex.PW1/D1 ?
Ans. Yes. It's my husband's signature.
I cannot say whether any civil suit was filed for this property by me or my husband on behalf of trust from the year 1998 to 2008. I cannot say whether trust was in possession of the suit CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 26 of 29 property ever. (vol. I used to live in Punjab, I do not know anything). It is wrong to suggest that I am deposing falsely."
(emphasis is mine)
46. Bare perusal of deposition given by PW1 clearly reveals that Plaintiff failed to lead any evidence with respect to its claim. Merely, deposition given by DW1 that, " Dihat se mujhe Sh. Sudesh Verma ji, Delhi lekar aaye the Gauri Shankar Mandir ke liye. Mandir me mujhe pujari ke kaam ke liye laye the. Mujhe koi tankha nahi milti thi mandir ke kaam ke liye. Mujhe Mandir me aane wale bhagato se 10-20 rupees mil jate the, ussi se apna gujara karta tha. Ye baat galat hai mujhe koi Rs. 600/- tankha nahi milti thi. Mujhe Sh. Sudesh Verma koi Rs. 600/- tankha nahi dete the. Ye baat galat hai ki Sh. Sudesh Verma gujare ke liye mujhe Rs. 2,000/- aur dete the. Jab mein pujari bna toh mein mandir me hi ek kamre me rehta tha. Mujhe mandir ke plot ka number yaad nah saal 1985 me mandir me aaya tha" does not mean that defendant No. 1 was inducted as licensee to the suit property. It is well settled that a plaintiff has to prove his own case and cannot take advantage of the weakness of the defence and the failure of the defendants to establish their case would not enable the plaintiff to a decree in its favour. Moreover, as per pleading suit property is a property admeasuring 425 sq yds i.e. adjacent to Gauri Shankar Mandir only. No question w.r.t. the description of the suit property was put to DW1. Not even a single suggestion was given w.r.t. the title documents to DW1. Infact, DW1 was not cross-examined at length and only few vague questions were asked i.e. as follows:
"Ques:- Yeh baat sahi hai ki mandir plot no. RZ-A22, gali No. 1. Dwarka Puri, Delhi aur plot no. RZA-3, Gali No. 2, Khasra No. 27/20/12 are measuring 413 sq. yards, dono jageh par tha? Ans:- par tha. Mandir kewal RZ-A22, gali No. 3. Dwarka Puri, Delhi CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 27 of 29 Ques:- Kya plot no. RZA-3, Gali No. 2, Khasra No. 27/20/12 are are measuring 413 sq. yards par kali mata ki murti thi? Ans:- Murti toh thi par choti thi lekin kaha hai mujhe yaad nahi. Hanuman ji ki koi murti nahi thi aur koi bhi triveni ped (tree) nahi tha. Ye baat galat hai ki dono addresses par mandir the aur dono me pooja ke liye mujhe rakha gya tha. Ye kehna galat hai ki maine RZA-3 par murtiya hatta kar aur ped(tree) katwa kar apne liye kamra bna liya tha. Mandir ka maalik koi nahi tha. Mujhe nahi malum ki mandir me koi trust tha. Mandir ki dekhbhal mere aane se pehle koi nahi karta tha aur mere aane ke baad mein khud karta tha, Ye baat galat hai ki jab maine dekha ki mandir me koi maalik hai toh main uss par kabja kar liya.
Ye kehna galat hai ki sare kaagjaat plot no. RZA-3, Gali No. 2, Khasra No. 27/20/12 are are measuring 413 sq. yards jhudhe aur farzi hai. Ye kehna galat hai ki Sh. Sudesh Verma ko mein badnaam karna chahta hu taki mein apne galat kaam ko chhupa sakta hu. Ye kehna bhi galat hoga ki mein Sh. Sudesh Verma aur unki patni ko baadnaam karna chahta hu taki meri galatiya logo ke samne na aaye. Ye kehna galat hai ki, ki mein waha ke area ke logo ko mandir ka maalik bta kar logo se paise aidhtta tha. Ye kehna galat hai ki Sh. desh Verma aur unki patni ko meri sachayi ka pta chala toh unhone mujhe pujari ke paad (post) se hatta diya. Ye kehna galat hai ki maine apni galtiyo ko chupane ke liye Sh. Sudesh Verma was judhi police complaint ki aur judhe mukadamo me fasane ki koshish ki. Ye kehna galat hai ki, ki Sudesh Verma aur unki patni punjab me rehte the aur yaha kam hi aate the aur unke piche saari property par kabja kar liya."
47. It is well settled law that, if one person is claiming the existence of any fact and same is denied by another person, then, burden of proof to prove that fact is upon the person, who claims its existence. 5 But, plaintiff failed to lead any evidence to prove its contention in the present suit. Even if the title of the suit property is ignored then also prior possession of plaintiff not proved except GPA, agreement to sell, affidavit, receipt all dt. 07.07.1986 or letter dt. 25.02.1987, no material placed on record to show that executant 5 Anil Rishi Vs. Gurbaksh Singh (2006) 5 SCC 558 CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 28 of 29 of said document was owner or in possession of the suit property or plaintiff was ever in possession of the suit property. Thus, in view of above facts and circumstances, this court is of the opinion that the plaintiff could not stand on its own legs. Hence present suit stands dismissed.
ISSUE NO. 7 - Relief/Conclusion
48. In view of above facts and circumstances, this court is of the opinion that the plaintiff failed to prove its own case. Hence, present suit stands dismissed.
49. Parties shall bear their own cost.
50. Decree sheet be prepared accordingly.
51. File be consigned to record room after due compliance.
Digitally
signed by
Announced in open court SHILPI SHILPI
JAIN
M
M Date:
on 22.10.2024 JAIN 2024.10.22
16:13:24
+0530
(SHILPI M JAIN)
District Judge-05, South West District
Dwarka Courts, New Delhi
CS No. 16222/16 THE GAURI SHANKAR MANDIR v. SH. BANWARI LAL DUBEY @ SHANTI DEV PUJARI & ORS. P.N. 29 of 29