Delhi District Court
Smt. Santosh Sharma vs Sh. Umesh Kumar on 10 January, 2020
IN THE COURT OF ADDITIONAL DISTRICT JUDGE05,
SOUTH WEST, DWARKA COURTS, NEW DELHI
Civil Suit No: 17244/16
IN THE MATTER OF :
Smt. Santosh Sharma
W/o Sh. Harish Sharma
R/o 35A, Sangam Vihar,
Najafgarh, Kakrola, Delhi.
.......... Plaintiff
versus
Sh. Umesh Kumar
S/o Sh. Suraj Prakash
R/o Qila Mohalla,
Bahadurgarh, Haryana.
.......... Defendant
SUIT FOR RECOVERY OF POSSESSION, PERMANENT AND
MANDATORY INJUNCTION
Date of institution : 07.10.2013
Date when judgment reserved : 26.11.2019
Date of Judgment : 10.01.2020
JUDGMENT:
1. Vide this judgment, I shall decide the present suit filed by the plaintiff for recovery of possession, permanent and mandatory CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 1 of 57 inunction against the defendant.
2. The case of the plaintiff as set out in the plaint is summarized as under: 2.1. The plaintiff is the rightful owner of the plot bearing No. 16, Sewak Park, New Delhi measuring 150 sq. yards out of Khasra No. 13/5 situated in Matiala Village, Delhi (hereinafter referred to as "suit property") having purchased the same from one Sh. Deepak Kumar S/o Sh. Sat Narain vide GPA, Agreement to Sell and Will, all dated 15.02.2002. The said Deepak Kumar purchased the suit property from one Sh. Saha Singh S/o Sh. Amar Singh vide GPA, Agreement to Sell and Will dated 03.05.1989, who purchased the same from Sh. Amar Singh vide GPA, Agreement to Sell and Will dated 14.10.1983. 2.2. After taking exclusive and peaceful possession of the suit property in the year 2002, the plaintiff raised the boundary wall and one room over the suit plot in the year 2002 itself and since then the plaintiff has been enjoying the peaceful possession of the suit property without any interference from any person. However, in the last week of July 2013, to the utter shock and surprise of the plaintiff, the defendant CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 2 of 57 visited the suit property and claimed himself to the owner of the said plot.
2.3. The defendant started altercation with the plaintiff and interfered in the peaceful possession of the plaintiff over the suit property, however due to intervention of the nearby residents, the defendant left the spot threatening the plaintiff with dire consequences if she failed to hand over the possession of the suit plot to him for which a complaint was filed by the plaintiff.
2.4. Thereafter, on 28.08.2013, the defendant again visited the suit property alongwith some police officials and extended threats to the plaintiff and also caused damage to the boundary wall of the suit property. The plaintiff again made a police complaint against the defendant at PS Bindapur, Delhi but no action was taken against the defendant by the police officials. Rather the police officials had joined hands with the defendant and they not only refused to give any details of the defendant but also threatened the plaintiff to give away the possession of the suit plot to the defendant or she will face dire consequences.
CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 3 of 57 2.5. Under these circumstances, the plaintiff was constrained to file a civil suit for permanent and mandatory injunction bearing CS No. 160/13 against the defendant and the concerned SHO of PS Bindapur before the Court of Sh. Gautam Manan, Senior Civil Judge, Dwarka Courts, New Delhi. On 19.09.2013, when the matter came up for the appearance of the defendants, the defendant no. 1 therein i.e. SHO, PS Bindapur provided the plaintiff with copy of FIR No. 394/2013 dated 24.08.2013 registered at the instance of Vigilance Department against the plaintiff u/s 420/467/471/448/506/511/34 IPC and the plaintiff learned that the defendant got registered the said false, frivolous and entirely misconceived FIR against her to pressurize her to hand over the possession of the suit property to the defendant. 2.6. The aforesaid FIR which was got registered by the defendant against the plaintiff clearly mentions that the defendant is the owner of the plot falling in Khasra No. 14/1, situated at Matiala Village, New Delhi and possesses the title deeds of the same, whereas the plaintiff is the owner of the plot bearing Khasra No. 13/5 situated in Village Matiala, New Delhi which is clearly depicted in the Khata CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 4 of 57 Khatoni of Khasra No. 13/5 in favour of Sh. Amar Singh who was the original owner of the suit property.
2.7. The police officials in collusion and connivance with defendant forcibly in an unlawful and illegal manner handed over the possession of the plot in question to the defendant despite the fact that the defendant does not have any right, title or interest in the same and as per allegations of the defendant himself he is owner of a different property other than the suit property which is also clearly depicted from the Khata Khatoni of the concerned properties.
2.8. The defendant in connivance with the police is bent upon to usurp the suit property which is legally owned by the plaintiff and under these circumstances the plaintiff is left with no option but to file the present suit against the defendant.
3. The plaintiff by way of present suit has prayed for following reliefs:
a) a decree of possession of the suit property in her favour and against the defendant, thereby directing the defendant, his employees, servants, contractors, agents attorneys etc. to hand over the peaceful physical CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 5 of 57 possession of the suit property i.e. plot bearing No. 16, Sewak Park, New Delhi measuring 150 sq. yards out of Khasra No. 13/5 situated at Matiala Village, Delhi to her.
b) a decree of permanent injunction in her favour and against the defendant thereby restraining the defendant, his employees, servants, contractors, agents attorneys etc. from transferring, alienating, assigning, selling or otherwise parting with possession of the suit property and from carrying out additions and alterations or disposing of or creating third party interest in the suit property;
c) a decree of mandatory injunction in her favour and against the defendant thereby directing the defendant to repair the damage caused to the boundary walls of the suit property.
4. The defendant has contested the suit by filing the written statement contending that: 4.1. There is no cause of action in favour of the plaintiff and against the defendant as the plaintiff has no connection of whatsoever nature with the property bearing No. B2/16, total measuring 150 square CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 6 of 57 yards in Khasra No. 14/1, Village Matiala, Delhi of which the defendant and his father are lawful and real owners. They are in possession of the said property since its purchase in the year 1996. 4.2. The plaintiff is trying to depict property of the defendant and his father bearing plot No. B2/16, Sewak Park in Khasra No. 14/1, Delhi to be some plot No. 16 in Khasra No. 13/5, Sewak Park, New Delhi and is falsely claiming to be owner of the property of defendant and his father.
4.3. It is stated that Sh. Amar Singh had executed a registered GPA in favour of Sh. Manjit Singh on 13.10.1983 in respect of land in Village Matiala in various Khasra numbers including Khasra Nos. 13/4 (45) & 14/1 (408) by which said Manjit Singh was authorized and had full powers to sell the land in all khasra numbers mentioned in the said GPA.
4.4. On 06.08.1984, Sh. Manjit Singh vide a registered sale deed sold a plot of land measuring 150 sq. yards in Khasra No. 14/1 to Sh. Vishnu Dutt Dixit who further sold the said plot bearing No. B2/16 in two parts - 75 sq. yards out of 150 sq. yards was sold to Sh. Suraj CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 7 of 57 Prakash Sehgal vide registered Will, GPA, Agreement to Sell, Affidavit and Receipt all dated 12.04.1994 and remaining 75 square yards was sold jointly to defendant and Smt. Baldevi vide registered Will, GPA, Agreement to Sell, Affidavit and receipt all dated 12.04.1994. Smt. Baldevi who is cousin grandmother of the defendant executed a registered Will dated 21.03.1996 in favour of the defendant bequeathing her portion in 75 sq. yards and after her death, her portion in 75 sq. yards devolved on the defendant by virtue of the said Will dated 21.03.1996. 4.5. The suit is bad for nonjoinder of necessary parties as 75 sq. yards of the suit property is owned by Sh. Suraj Prakash S/o Sh. Ganga Ram who is a necessary party and has not been impleaded in the present suit.
4.6. The plaintiff has forged some of the documents on the basis of which she is staking claim over the property of the defendant and his father in Khasra No. 14/1 and for the forgery committed by the plaintiff, an FIR bearing No. 394/13 dated 24.08.2013 at PS Bindapur, New Delhi has been registered against her u/s 420/467/471/506/34 IPC pursuant to several complaints made by the defendant with police authorities. CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 8 of 57 4.7. On merits, the contents of the plaint are stated to be wrong and denied and the defendant has prayed for dismissal of the suit.
5. The plaintiff has filed replication to the written statement in which the averments made in the plaint have been reiterated and reaffirmed and those made in the written statement have been controverted.
6. From the pleadings of the parties, following issues have been framed vide order dated 16.01.2015 for adjudication :
1. Whether the suit property lies in Khasra No. 13/5 i.e. of the plaintiff and not in Khara No. 14/1 as claimed by the defendant? OPP.
2. Whether the suit is bad for nonjoinder of necessary parties? OPD.
3. Whether the plaintiff is entitled to the relief of possession with respect to suit property, as prayed for? OPP.
4. Whether the plaintiff is entitled to the relief of permanent injunction against defendant, as prayed for? OPP.
5. Whether the suit discloses cause of action and is maintainable? OPD.
CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 9 of 57
6. Relief
7. In order to prove her case, the plaintiff has examined five witnesses including herself as PW1. She filed her evidence by way of affidavit which is Ex.PW1/1 reiterating the averments made in the plaint. During her deposition before the Court as PW1, the plaintiff relied upon and exhibited the following documents: Ex. PW1/2 : Site plan Ex. PW1/3 : Original Khata Khatoni of Khasra No. 13/5 and 14/1 Mark A : Copy of GPA, Agreement to Sell, Affidavit (Colly) and Will dated 15.02.2002 Mark B : Copy of GPA, Agreement to Sell and Will (Colly) dated 14.10.1983 Mark C : Copy of GPA, Agreement to Sell and Will (Colly) dated 03.05.1989 Mark D : Photographs showing possession of the suit property Mark E : Copy of plaint of the suit filed by the plaintiff for permanent and mandatory injunction against the defendant and SHO PS Bindapur Mark F : Copy of FIR No. 394/13 PS Bindapur
8. PW2 is Inspector Rajesh Dutt Pandey, No. DI CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 10 of 57 8025/DIU, South West District, Dwarka, New Delhi who brought the original GPA, receipt of Rs.48,000/, agreement to sell, affidavit of Sh. Deepak Kumar, possession letter, deed of Will, all dated 15.02.2002 and exhibited the same as Ex.PW2/1 (Colly). He has also brought original GPA, agreement to sell, affidavit of Sh. Saha Singh, receipt of Rs. 30,000/ and Will, all dated 03.05.1989 and exhibited the same as Ex.PW2/2 (Colly) and original GPA, agreement to sell, affidavit of Sh. Amar Singh, receipt of Rs. 12,000/ and Will, all dated 14.10.1983 and exhibited the same as Ex.PW2/3 (Colly).
9. PW3 Ct. Devvart is the summoned witness from PS Bindpur, New Delhi who was directed to bring the complaint dated 28.08.2013 filed by the plaintiff alongwith DD number.
10. The plaintiff has also examined Sh. Giri Raj Singh, Patwari, SDM, Dwarka, Najafgarh, Delhi as PW4 who brought the original Khatoni register containing the relevant entry of Khatoni of Khasra No. 13/5 and 14/1, Village Matiala, Delhi pertaining to the year 197879 and placed the copy of same as Ex. PW4/A (Colly). CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 11 of 57
11. The last witness examined by the plaintiff is Sh. Raju as PW5 who is witness to the title documents executed in favour of the plaintiff dated 15.02.2002. He filed his evidence by way of affidavit which is Ex. PW5/A wherein he has deposed regarding execution of the documents dated 15.02.2002.
12. The defendant, on the other hand, in support his defence as made in the written statement has examined eleven witnesses including himself as DW1. He filed his evidence by way of affidavit Ex.DW1/A in consonance of averments made in the written statement and during his deposition as DW1, he has relied upon and exhibited the following documents: Mark 1 : GPA dated 13.10.1983 Ex.DW1/1 : Certified copy of sale deed dated 06.08.1984 executed by Sh. Manjit Singh in favour of Sh. Vishnu Dixit.
Mark 2 : Copy of documents i.e. registered Will,
(Colly) GPA, agreement to sell, affidavit,
receipt all dated 12.04.1994 executed
in favour of Sh. Suraj Parkash Sehgal
Ex.DW1/2 : Original registered Will, GPA,
(Colly) agreement to sell, affidavit and receipt,
all dated 12.04.1994 executed in favour
of late Smt. Baldevi and defendant
CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 12 of 57
Ex.DW1/3 : Certified copy of Will of deceased
Smt. Baldevi dated 21.03.1996 in
favour of the defendant
Ex.DW1/4 : Certified copy of death certificate of
Smt. Baldevi
Ex.DW1/5 : Copy of FIR No. 394/13 PS Bindapur
Mark 3 : Copies of complaint filed by the
(Colly) defendant
Ex.DW1/6 : Site plan
Ex.DW1/7 : Photographs
(Colly)
13. The defendant has also examined Sh. Manjit Singh as DW2, Sh. Kailash Gupta as DW3, Sh. Pankaj Dixit as DW4 and Sh. Ramesh Chandel as DW5. They all filed their evidence by way of affidavits and their testimonies shall be discussed at the later stage of judgment.
14. DW6 is Sh. Vivek Yadav, Junior Assistant from the office of Sub RegistrarII, Basai Darapur, New Delhi who brought the original registered Will registered vide registration No. 16563 in Additional Book No. 3, Volume No. 2203 on page 35 dated 12.04.1994 executed by Sh. Vishnu Dixit in favour of Sh. Suraj Prakash Sehgal and CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 13 of 57 another registered Will dated 12.04.1994 executed by Sh. Vishnu Dixit in favour of Smt. Baldevi and Sh. Umesh Kumar registered vide registration No. 16564 in Additional Book No. 3, Volume No. 2203 on page 36 and placed the copies of same as Ex.DW6/1 and Ex. DW6/2 respectively.
15. Another witness examined by the defendant is DW7 Ct. Mahender from Office of DCP, Sector - 19, Dwarka, New Delhi who has placed on record the order of the DCP, Dwarka District dated 02.04.2018 as Ex.DW7/1 by which the old record upto the year 2014 of complaints branch/Dwarka District has been handed over to the Director, Khadi & Village Industries Commission, New Delhi for weeding out and using the same of manufacturing of handmade papers.
16. DW8 Mohd. Noor Alam, Draftsman, Tis Hazari Courts, Delhi has prepared the site plan Ex. PW1/6 after visiting the suit property.
17. DW9 is HC Basuki from PS Bindapur, New Delhi who brought the original record of complaint dated 30.07.2013 filed by the defendant vide DD No. 46A dated 30.07.2013, copy of which is CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 14 of 57 Ex.DW9/1 (Colly).
18. DW10 Sh. Rajiv Ranjan, Sr. Assistant, Stamp & Registration Branch, Office of the Divisional Commissioner, New Delhi - 54 has brought the summoned record i.e. office copy of letter dated 04.03.2014 addressed to Sh. Richhpal Singh, Inspector DIU/SWD, Bindapur, Delhi regarding verification for NJP Stamp papers in respect of FIR No. 394/2013 dated 24.08.2013 PS Bindapur, copy of which is Ex.DW10/1 (Colly).
19. The last witness examined by the defendant is Sh. Govind Krishna, Dy. Manager (Technical Operation) India Security Press, Nasik Road, Maharashtra as DW11 who brought the summoned record i.e. office copy of report dated 14.10.2016 in ISP Stamp Case No. 11252 (342) and certified copy thereof given by him in FIR No. 394/2013 dated 24.08.2013 PS Bindapur which is Ex.DW11/1.
20. I have heard the Ld. Counsel for the parties and perused the record carefully. I have also gone through the written arguments filed on behalf of the parties.
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21. On the basis of material available on record, my issuewise findings are as under: Issue No. (1) (Whether the suit property lies in Khasra No. 13/5 i.e. of the plaintiff and not in Khara No. 14/1 as claimed by the defendant?)
22. The onus to prove this issue is on the plaintiff. The case of the plaintiff is that she is the owner of the suit property i.e. plot bearing No. 16, Sewak Park, New Delhi measuring 150 sq. yards in Khasra No. 13/5, Village Matiala, New Delhi having purchased the same from one Sh. Deepak Kumar vide GPA, Agreement to Sell, Will etc. all dated 15.02.2002. It is further case of the plaintiff that originally one Sh. Amar Singh was the owner of the suit property and he sold the same to one Sh. Saha Singh vide GPA, Agreement to Sell, Will etc. all dated 14.10.1983. The said Sh. Saha Singh further sold the suit property to Sh. Deepak Kumar vide GPA, Agreement to Sell and Will dated 03.05.1989 from whom she had purchased the suit property vide documents dated 15.02.2002. The plaintiff has further claimed that after purchase of the suit plot in the year 2002, she got constructed boundary wall alongwith CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 16 of 57 one room over the same in the same year and since then she had been enjoying the peaceful possession of the suit property till July 2013 but thereafter the defendant in connivance of the police officials damaged the boundary wall of the suit property claiming himself to be owner of the same for which the plaintiff made a police complaint and subsequently the police officials forcibly handed over the possession of the suit property to the defendant in an illegal and unauthorized manner.
23. On the other hand, the defendant has contended that the property of which the plaintiff is seeking possession bears plot No. B 2/16 which belongs to him and his father and the same falls in Khasra No. 14/1 and not in Khasra No. 13/5 as claimed by the plaintiff. The defendant has claimed that the plaintiff is trying to depict the plot No. B2/16 belonging to him and his father falling in Khasra No. 14/1 to be some plot No. 16 in Kharsa No. 13/5 and falsely claiming ownership over the same on the basis of some forged documents. The defendant has further claimed that he and his father are in possession of the property bearing No. B2/16, total measuring 150 sq. yards falling in Khasra No. 14/1, Village Matiala, Delhi being joint owners of the same having CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 17 of 57 purchased by them in two parts i.e. 75 sq. yards each from one Sh. Vishnu Dixit on 12.04.1994 who purchased the same from Sh. Manjit Singh being attorney of late Sh. Amar Singh who was the original owner of the said property.
24. From the aforesaid rival claims of the parties, it is not in dispute that late Sh. Amar Singh was the owner of the land falling in Khasra No. 13/5 and 14/1 in Village Matiala, New Delhi. This fact is also proved from the Khatoni of Village Matiala, Tehsil Mehrauli, Delhi Ex.PW4/A (Colly) pertaining to the year 197879 produced by PW4 Sh. Giri Raj Singh, Patwari which shows the ownership of Sh. Amar Singh in respect of land in Khasra No. 13/5 and 14/1 in Village Matiala, Delhi. It is also not in dispute that Sh. Amar Singh was the owner of the suit property measuring 150 square yards, however the bone of contention between the parties is with regard to the location of the suit property and ownership over the same. The plaintiff has claimed that the suit property bearing plot no. 16 falls in Khasra No. 13/5 of which she is the owner, while the defendant has contended that the suit property bearing plot no. B2/16 falls in Khasra No. 14/1 and the same belongs to CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 18 of 57 him and his father. The onus to prove that the suit property in possession of the defendant falls in Khasra No. 13/5 and not in Khasra No. 14/1 is on the plaintiff.
25. In order to prove her case, the plaintiff first of all appeared herself in the witness box as PW1 and reiterated the averments made in the plaint in her examinationinchief by way of affidavit Ex.PW1/A. While reiterating the averments of the plaint, PW1 (the plaintiff) deposed in para no. 5 of her affidavit in evidence Ex.PW1/A that after purchase of the suit property in the year 2002, she got raised a boundary wall and a room over the suit plot in the year 2002 itself and since then she had been in possession of the suit property without any interference from any person till July 2013. In her crossexamination, PW1 (the plaintiff) categorically stated that at the time of purchasing the suit property, the same comprised of one room, latrine, bathroom, boundary wall and an iron gate. She admitted that she did not construct any structure over the suit property after purchasing the same and her statement in the Court in respect of construction is correct and that in para no. 5 of her affidavit Ex.PW1/1 is incorrect in this respect. This CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 19 of 57 statement of the plaintiff shows that her deposition in para no. 5 of her affidavit in evidence regarding construction of boundary wall and one room in the year 2002 is false.
26. PW1 (the plaintiff) has also categorically stated in her crossexamination that she has no document to show that she was ever in possession of the suit property. If the plaintiff had purchased the suit plot in the year 2002 and since then had been continuously in possession of the same till July 2013 as per her claim, then it is highly improbable that she will not be having any document to show her possession over the suit property during the said period.
27. PW1 (the plaintiff) has also deposed in her evidence that in the last week of July 2013, the defendant visited the suit property and claimed himself to be owner of the same and interfered in her peaceful possession due to which an altercation started between them but due to the intervention of the nearby residents, the defendant left the spot threatening her with dire consequences if she failed to hand over the possession of the suit property to him. But in the crossexamination, she stated that she cannot tell the names of the neighbours who saved her in CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 20 of 57 July 2013 when defendant came to suit property and an altercation took place. She also did not remember the date when the said incident happened. She stated that she did not lodge any complaint with police in respect to said incident except on 18.08.2013. As such, the claim of the plaintiff that the defendant in July 2013 visited the suit property and threatened her to hand over the possession of the suit property to him has remained unsubstantiated.
28. The plaintiff has further alleged that the defendant again visited the suit property on 28.08.2013 alongwith some police officials and extended threats to her and caused damage to the boundary wall of the suit property for which she lodged a complaint against the defendant at PS Bindapur, Delhi but no action was taken. In the crossexamination, PW1 (the plaintiff) stated that on 28.08.2013, the defendant came with police officials and the police officials threatened her not to come on suit property otherwise she will be in jail. She further stated that nothing else happened on the said date. A question was put to her that in para No. 7 of her affidavit Ex.PW1/1 she stated that on 28.08.2013, defendant and police official caused damage to boundary walls of suit property but CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 21 of 57 today she has stated that no such damage was caused to the boundary walls, which of the two statements is correct to which she replied that she cannot say which of the two is correct. She further stated that her affidavit has been prepared by her counsel and she does not know as to what has been written by her counsel about the boundary walls. From these statements of the plaintiff, the assertions made by her in the plaint which she reiterated in her affidavit Ex.PW1/A regarding visit of the defendant alongwith police officials at the suit property on 28.08.2013 and causing damage to the boundary wall of the suit property are again falsified. She also admitted in her further crossexamination that she did not file any complaint against the incident which took place on 28.08.2013 and her statement made in the court in this respect is correct and that in para no. 7 of her affidavit Ex.PW1/1 is incorrect in this respect. Thus, again the assertion of the plaintiff in the plaint and affidavit Ex.PW1/A that she had made a complaint at PS Bindapur regarding incident which took place on 28.08.2013 is again false. This claim of the plaintiff regarding filing of complaint on 28.08.2013 is further falsified from the testimony of PW3 Ct. Devvart from PS CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 22 of 57 Bindapur, New Delhi examined by the plaintiff herself who was directed to bring the complaint dated 28.08.2013 filed by the plaintiff alongwith DD number, however the said witness when appeared in the witness box deposed that as per their record, there is no complaint filed by Smt. Santosh Sharma (the plaintiff) on 28.08.2013 at PS Bindapur, New Delhi.
29. It is pertinent to note here that the plaintiff has claimed in the plaint and reiterated the same in her affidavit that she was in continuous possession of the suit property since 2002 till July 2013 and thereafter she was forcibly dispossessed by the police officials in connivance with the defendant in an illegal and unauthorized manner. However, it is to be noted that the plaint is conspicuously silent as to when the possession of the suit property was forcibly handed over by the police officials to the defendant. The plaintiff has not disclosed the date, month or year when she was illegally dispossessed at the hands of the defendant from the suit property. Though during her crossexamination, the plaintiff stated that after around 1015 days of 18.08.2013, the police officials handed over the possession of the suit property to the defendant. CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 23 of 57 However, this statement of the plaintiff that she was dispossessed from the suit property by the police officials at the instance of the defendant around after 1015 days of 18.08.2013 is contrary to the record because as per own claim of the plaintiff in the plaint the defendant alongwith police officials visited the suit property on 28.08.2013 and caused damage to the boundary wall of suit property. Meaning thereby, the plaintiff was in possession of the suit property on 28.08.2013. No assertion was made in the plaint that possession was handed over to the defendant after around 1015 days of 18.08.2013. Moreover, assertion of causing damage to the boundary wall of the suit property by the defendant on 28.08.2013 was given up by her during her cross examination. She categorically stated in her crossexamination that she has not filed any complaint or case against the police officials or defendant in respect to said dispossession. It is highly improbable that if a person is dispossessed from her property and that too by police officials, she will not make any complaint against the police officials and the person who has illegally dispossessed her. The plaintiff during her crossexamination categorically stated that she has not filed any CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 24 of 57 complaint against any police official as well as against the vigilance officials with respect to her grievances as mentioned in her plaint and did not take any other remedy against them.
30. During her further crossexamination, PW1 (the plaintiff) stated that the Khasra number of suit property as claimed by her is 13/5. She was suggested that the Khasra number of the same is 14/1 which she denied. The onus to prove that suit property falls in Khasra No. 13/5 and not in Khasra No. 14/1 was on the plaintiff and she was required to prove the same. The plaintiff could have obtained the demarcation report from the revenue authority to show that the suit property falls in Khasra No. 13/5 which she has claimed to have purchased from Sh. Deepak Kumar but the plaintiff has not taken any such steps to demarcate the suit property. In this regard, she stated in her crossexamination that her advocate might have filed the application for demarcation. She further stated that she had enquired from her counsel about filing of demarcation application but she is not aware whether the application was filed or not as the matter stood transferred from the Hon'ble High Court. These statements of the plaintiff clearly show that the plaintiff even is CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 25 of 57 not sure as to whether any demarcation application has been filed by her or by her counsel. There is nothing on record to show that the plaintiff has made any effort to get the suit property demarcated either prior to filing of the suit or even after filing of the suit and when she came to know the defence of the defendant that the suit property falls in Khasra No. 14/1 and not in Khasra No. 13/5. The plaintiff after coming to know the defence of the defendant could have obtained the demarcation report from the revenue authority which could have established that the suit property which is in possession of the defendant and which the defendant claims to be in Khasra No. 14/1 actually falls in Khasra No. 13/5 and not in Khasra No. 14/1. But the plaintiff has not taken any such steps and has withheld the best evidence which could have been in the form of demarcation report and hence an adverse inference is liable to be drawn against the plaintiff.
31. The plaintiff has also examined Sh. Raju as PW5, who is one of the attesting witnesses of documents Ex.PW2/1 (Colly) in order to prove the execution of said documents by which Sh. Deepak Kumar had sold the suit property falling in Khasra No. 13/5 to her and also CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 26 of 57 handed over the possession of the same to her. PW5 (Sh. Raju) deposed that he is witness of the documents executed in favour of Smt. Santosh Sharma (plaintiff) which are General Power of Attorney, Agreement to Sell, Will, Possession Letter, Receipt all dated 15.02.2002. He deposed that the above said documents were executed in his presence and he signed the same as witness no. 1 and possession of the suit property was handed over to Smt. Santosh Sharma (plaintiff) in his presence. In his crossexamination, PW5 (Sh. Raju) stated that the present case pertains to a plot situated at Dwarka Mor but he does not know the exact locality. When this witness is not aware about the locality where the suit property is situated, it is not established that possession of the suit property was given to the plaintiff in his presence as testified by him in his examinationinchief. He further stated that after execution of documents Ex.PW2/1 (Colly), he never visited the suit property. He also stated that he did not know Deepak (the previous owner from whom the plaintiff has alleged to have purchased the suit property falling in Khasra No. 13/5) personally prior to execution of documents Ex.PW2/1 (Colly). In the same breath, PW5 further stated that the sale transaction CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 27 of 57 between the plaintiff and Sh. Deepak was arranged through him. Both the aforesaid statements of PW5 (Sh. Raju) that he did not know Sh. Deepak personally prior to execution of documents Ex.PW2/1 (Colly) and that the sale transaction between the plaintiff and Sh. Deepak having been arranged by him are mutually contradictory. Therefore, testimony of PW5 (Sh. Raju) is bereft of any credence and it cannot be said that the plaintiff has been able to prove the execution of ownership documents Ex.PW2/1 (Colly) in her favour by Sh. Deepak Kumar through the testimony of this witness.
32. The Ld. Counsel for the plaintiff has heavily relied upon the chain of ownership documents exhibited by PW2 Insp. Rajesh Dutt Pandey as Ex.PW2/1 (Colly) to Ex. PW2/3 (Colly) to show that the plaintiff is the owner of the suit property which falls in Khasra No. 13/5.
33. At the outset, it may be noted that the said documents Ex.PW2/1 (Colly) to Ex. PW2/3 (Colly) which pertains to the property falling in Khasra No. 13/5 in no manner will prove that the suit property in the possession of the defendant which the defendant claims to be falling in Khasra No. 14/1 actually falls in Khasra No. 13/5 and not in CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 28 of 57 Khasra No. 14/1.
34. However, let us examine the aforesaid documents Ex.PW2/1 (Colly) to Ex. PW2/3 (Colly) relied upon by the plaintiff to find out whether by virtue of these documents, the plaintiff has been able to prove her ownership over the suit property falling in Khasra No. 13/5. Ex.PW2/1 (Colly) are General Power of Attorney (GPA), receipt, agreement to sell, affidavit, possession letter and Deed of Will, all dated 15.02.2002 executed by Sh. Deepak Kumar in favour of the plaintiff in respect of the property bearing plot No. 16 (builtup), area measuring 150 sq. yards, out of Khasra No. 13/5, situated in revenue estate of Village Matiala, Delhi, abadi known as Sewak Park, BlockB2, Delhi. Ex. PW2/2 (Colly) are the similar set of documents i.e. GPA, receipt, agreement to sell, affidavit and Will, all dated 03.05.1989 executed by Sh. Saha Singh in favour of Sh. Deepak Kumar and Ex.PW2/3 (Colly) are the documents executed by Sh. Amar Singh in favour of Sh. Saha Singh which includes GPA, receipt, agreement to sell, affidavit, and Will, all dated 14.10.1983.
35. As noted above, the plaintiff has not been able to prove the CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 29 of 57 execution of title documents dated 15.02.2002 Ex.PW2/1 (Colly) executed in her favour by Sh. Deepak Kumar by examining PW5 Sh. Raju who is one of the attesting witnesses to the said documents. Apart from this attesting witness, the plaintiff has not examined any of the attesting witnesses to the documents Ex.PW2/2 (Colly) to Ex.PW2/3 (Colly) to prove the same on record as per law. On the contrary, some of these documents appears to have been forged and fabricated in view of testimony of DW11 examined by the defendant.
36. It is relevant to note here that on a complaint filed by the defendant dated 24.08.2013, an FIR bearing No. 394/13 was registered against the plaintiff at PS Bindapur, Delhi for forgery of documents and during the investigation in the said case FIR, the ownership documents relied upon by the plaintiff which are Ex.PW2/1 (Colly) to Ex.PW2/3 (Colly) were sent to Forgery Detection Cell of India Security Press for ascertaining the genuineness of the stamp papers on which the said documents were prepared. DW11 Sh. Govind Krishna, Dy. Manager, Forgery Detection Cell, India Security Press, Nashik Road thoroughly examined the Non Judicial Stamp Papers (5 in numbers) of different CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 30 of 57 denomination and 1 Indian Revenue Stamp of 100 paisa received from the Office of Assistant Commissioner of Police, Dwarka, New Delhi and compared the same with the original India Security Press Specimen and gave his opinion regarding their genuineness in a tabular form in his report Ex.DW11/1. The same were marked as Ex.1 to Ex.6 in the said report. Ex.1 is India Non Judicial Stamp of Rs. 10/, Ex.2 is India Non Judicial Stamp of Rs. 2/, Ex.3 is India Non Judicial Stamp of Rs. 2/, Ex.4 is India Non Judicial Stamp of Rs. 10/, Ex.5 is India Non Judicial Stamp of Rs. 50/ and Ex.6 is India Revenue Stamp of Rs. 1/.
37. Perusal of Ex.1 (India Non Judicial Stamp of Rs. 10/) annexed with the report Ex.DW11/1 shows that the said stamp paper has been used in chain of ownership documents of plaintiff Ex.PW2/3 (Colly) by which deceased Sh. Amar Singh executed a General Power of Attorney on 14.10.1983 in favour of Sh. Saha Singh to do all such acts mentioned in the said GPA on his behalf including right to sell the property mentioned therein. Similarly, Ex.2 (Non Judicial Stamp paper of Rs.2/) annexed with the report Ex.DW11/1 has been used in chain of ownership documents of the plaintiff Ex.PW2/3 whereupon deceased Sh. CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 31 of 57 Amar Singh has allegedly executed an agreement to sell dated 14.10.1983 in favour of Sh. Saha Singh thereby selling the property falling in Khasra No. 13/5 and Ex.3 (Non Judicial Stamp paper of Rs.2/) is the affidavit dated 14.10.1983 which has been allegedly executed by late Sh. Amar Singh in favour of Sh. Saha Singh.
38. However, as per report Ex.DW11/1, this variety of stamp (Ex.1) was printed for the first time on 21.05.1984 and the same were dispatched for the first time on 31.05.1984. Similarly, variety of stamp (Ex.2) was printed for the first time only on 26.03.1984 and the same were dispatched for the first time on 28.04.1984 and variety of stamp (Ex.3) was printed for the first time only on 26.03.1984 and the same were dispatched for the first time on 28.04.1984.
39. Thus the stamp paper Ex.1 to Ex.3 annexed with the report Ex.DW11/1, which have been used in the ownership documents of the plaintiff Ex.PW2/3 (Colly) and allegedly executed by late Sh. Amar Singh in favour of Sh. Saha Singh on 14.10.1983 could not have been used in the year 1983, more specifically on 14.10.1983 as the same were not printed in the year 1983 and they were printed for the first time in CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 32 of 57 the year 1984. It casts a strong doubt on the authenticity of the title documents executed by late Sh. Amar Singh in favour of Sh. Saha Singh Ex.PW2/3 (Colly) and thus entire chain of title documents i.e. GPA, Agreement to Sell, Affidavit, Receipt, Will etc Ex.PW2/3 (Colly) executed by deceased Sh. Amar Singh in favour of Sh. Saha Singh appear to have been forged and fabricated.
40. Not only this, Ex.3 (Non Judicial Stamp paper of Rs.2/) i.e. the affidavit dated 14.10.1983 and Ex.4 (India Non Judicial Stamp of Rs. 10/) annexed with the report Ex.DW11/1 which is the General Power of Attorney dated 03.05.1989, one of the documents in Ex.PW2/2 (Colly) allegedly executed by Sh. Saha Singh in favour of Sh. Deepak Kumar have been shown to have been tampered in report Ex.DW11/1.
41. The aforesaid report Ex.DW11/1 shows that the stamp papers used in chain of title documents Ex.PW2/3 (Colly) relied upon by the plaintiff are tainted and were not even in circulation in the year 1983 when the said alleged documents were prepared. Likewise, some of the stamp papers used in chain of ownership documents of the plaintiff Ex.PW2/2 (Colly) are reported to have been tampered. In the cross CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 33 of 57 examination of DW11, nothing material could be extracted to disbelieve his version. In his crossexamination, DW11 (Sh. Govind Krishna) stated that he has prepared the report Ex.DW11/1 on the directions of General Manager India Security Press, Nasik Road, Maharashtra. He further categorically stated that on the back side of Ex.3, there is some scrubbing on top side of the stamp paper giving the possibility of removing some content. He further stated that on the front side of Ex. 4, there is some scrubbing on top side of the stamp paper giving to the possibility of removing some content. He admitted that stamp paper Ex. 3 and 4 are genuine. Not a single suggestion was given by the Ld. Counsel for the plaintiff to this witness that the report Ex.DW11/1 prepared by him is incorrect.
42. In the written arguments, the Ld. Counsel for the plaintiff though has submitted that DW11 (Sh. Govind Krishna) has not disclosed the mode and manner of the examination of the documents conducted by him and hence his report cannot be relied upon. However, I do not find any merit in this contention of the Ld. Counsel for the plaintiff. In the crossexamination, DW11 has categorically stated that CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 34 of 57 he cannot reveal the mode and manner of the examination of the documents conducted by him as per Section 123 and 124 of Indian Evidence Act. Section 123 and 124 of the Indian Evidence Act exempts the witness from disclosing the mode and manner of examination of the security documents.
43. Further, DW10 (Sh.Rajiv Ranjan) examined by the defendant has placed on record the letter dated 04.03.2014 regarding verification for NJP Stamp papers in respect of FIR No. 394/2013 dated 24.08.2013 PS Bindapur as Ex.DW10/1 (Colly) as per which License No. 114 was never issued to any stamp vendor during the year 1989 2002. It was further intimated that in stamp papers nos. 62431, 62432 and 62433 issued in 2002, name and the license number of the stamp vendor is not visible.
44. Therefore, the GPA on stamp paper of Rs.50/ bearing No. 62431, Agreement to Sell on stamp paper bearing No. 62432 and affidavit on stamp paper bearing 62433, all dated 15.02.2002 Ex.PW2/1 (Colly) were not issued by the stamp vendor during the year 1989 to 2002 as per letter Ex.PW10/1 and there is no license number and stamp CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 35 of 57 vendor visible on the said stamp papers. As such, the documents allegedly to have been executed by Sh. Deepak Kumar in favour of the plaintiff Ex.PW2/1 (Colly) are not found to be authenticated and genuine.
45. In view of above, the plaintiff has not been able to prove the chain of ownership documents relied upon by her Ex.PW2/1 to Ex.PW2/3 (Colly) on the basis of which she is claiming ownership over the suit property falling in Khasra No. 13/5. Rather it has come on record that some of the documents in Ex.PW2/1(Colly) to Ex.PW2/3 (Colly) have been forged and fabricated.
46. Ld. Counsel for the plaintiff has submitted in the written arguments that as per document Ex.PW4/A, the land in Khasra No. 14/1 has been acquired by the Government vide Award No. 164/8687 by order of LACP and, therefore, the claim of the defendant of ownership of property in Khasra No. 14/1 is false and he in fact is in possession of the property of the plaintiff which falls in Khasra No. 13/5.
47. First of all, it was never case of the plaintiff either in the plaint or during her evidence that the property falling in Khasra No. 14/1 CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 36 of 57 has been acquired by the Government. Moreover, no document has been produced on record to show that acquisition took place in respect of land/property in Khasra No. 14/1 and even if the acquisition had taken place, then it has not been disclosed as to how much portion of land in Kharsra No. 14/1 was acquired by the Government.
48. In this regard, DW2 Sh. Manjit Singh who is grandson of deceased Sh. Amar Singh during his crossexamination was put a question by the Ld. Counsel for the plaintiff that as to whether some land owned by his grandfather was acquired or not to which he replied that a notification of acquisition of land was issued but neither the possession was taken by the Government nor they were given any compensation for acquisition of any such land. He was also suggested that they have received compensation for acquisition of land of village Matiala which was denied by him.
49. In view of aforesaid testimony of DW2 (Sh. Manjit Singh), it is not proved that the Government has taken the possession of any land in Khasra No. 14/1 and compensation in lieu of same was given to the land holder. The plaintiff could have examined the witness from the CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 37 of 57 concerned Government Department to prove that land in Khasra No. 14/1 was acquired and possession thereof was taken by the Government and compensation was also disbursed to the land holder but the plaintiff has not led such evidence and in the absence of any such evidence, it cannot be said that land in Khasra No. 14/1 was acquired by the Government.
50. From the aforesaid discussions and evidence which has come on record, the plaintiff has miserably failed to prove that the suit property which is in possession of the defendant falls in Khasra No. 13/5 and not in Khasra No. 14/1 and the same belongs to her being owner of the same. She even could not prove the ownership documents Ex.PW2/1 (Colly) to Ex.PW2/3 (Colly) by virtue of which she is claiming ownership over the suit property falling in Khasra No. 13/5.
51. On the other hand, the defendant in support of his defence has examined himself as DW1 and reiterated the averments made in the written statement in his examinationinchief. In the crossexamination, DW1 (the defendant) denied the suggestion that suit property is owned by plaintiff in the present case. He further denied the suggestion that suit CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 38 of 57 property is situated in Khasra No. 13/5. He voluntarily stated that the same is situated in Khasra No. 14/1. He stated that he does not have any demarcation record qua suit property. He admitted that he has never endeavoured to get the suit property demarcated after being served with summons of the present case. He denied the suggestion that he had threatened the plaintiff to dispossess her from suit property. He voluntarily stated that in fact plaintiff herself had threatened him and his father of dispossession from suit property on 28.07.2013 alongwith 78 persons. He denied the suggestion that on 28.08.2013, he visited the suit property with some police officials and extended threats to plaintiff and caused damage to the boundary wall of the suit property. He voluntarily stated that the suit property is his property and he often visits the same. He denied the suggestion that on 28.08.2013, the plaintiff filed any complaint with police authority. He denied the suggestion that he had taken forceful possession of property from plaintiff in connivance of police. He voluntarily stated that the suit property was in his possession since the date of purchase. He denied the suggestion that Sh. Vishnu Dixit was neither owner nor in possession of suit property at the time of CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 39 of 57 its purchase by him. He denied the suggestion that he had not examined title documents of Sh. Vishnu Dixit of suit property before purchasing the same from him. He stated that he is not aware whether Khasra No. 14/1, Village Matiala was acquired in the year 1986 or compensation qua same was received by Sh. Amar Singh in the year 1986.
52. As such, except putting suggestions which were denied by DW1 (the defendant), the Ld. Counsel for the plaintiff could not extract anything material to impeach his testimony that the suit property falls in Khasra No.14/1 and the same was jointly owned by him and his father and they are in possession of the same since its purchase.
53. Another witness examined by the defendant is Sh. Manjit Singh as DW2, the grandson of Sh. Amar Singh, who was the owner of the land in Khasra No. 13/5 and 14/1. He deposed that his deceased grandfather Sh. Amar Singh was the owner of the land of various Khasra numbers in Village Matiala including Khasra No. 13/4 (45) and 14/1 (4
08). He further deposed that his deceased grandfather had executed a registered GPA dated 13.10.1983 in his favour empowering him to sell the entire land in various Khasra numbers mentioned in the said GPA CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 40 of 57 including Khasra No. 14/1. He further deposed that in pursuance to powers obtained by him, he had sold a plot measuring 150 sq. yards of land in Khasra No. 14/1 bearing plot No. B2/16, Sewak Park in Khasra No. 14/1, New Delhi to Sh. Vishnu Dixit S/o late Sh. Damodar Dixit vide registered sale deed dated 06.08.1984 and he had received full consideration amount of Rs.6000/ from said Sh. Vishnu Dixit. He further deposed that after receipt of consideration amount and execution of sale deed, he had put Sh. Vishnu Dixit in possession of the suit property.
54. In the crossexamination, DW2 (Sh. Manjit Singh) stated that the suit property was his ancestral property and his grandfather, namely, late Sh. Amar Singh had executed a GPA in his favour in respect to the suit property in 1983. He further stated that original of said GPA Mark 1 is in his possession at his home. He further categorically stated that he sold one fifty square yards of his ancestral property to Sh. Vishnu Dixit in the year 1984. He further stated that the property bearing No. B2/16, Sewak Park exists in Khasra No. 14/1 of Village Matiala and that he cannot say whether the plaintiff is the owner of plot No. 16 CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 41 of 57 admeasuring 150 sq. yards, Khasra No. 13/5 Village Matiala colony known as Sewak Park.
55. The aforesaid crossexamination of DW2 (Sh. Manjit Singh) shows that his testimony has gone unrebutted and uncontroverted on material aspects. He was not suggested that vide GPA dated 13.10.1983, he was not authorized by his grandfather Sh. Amar Singh to sell the entire land in various Khasra numbers mentioned in the said GPA including Khasra No. 13/5 and 14/1 or that he had not sold the plot measuring 150 sq. yards in Khasra No. 14/1 to Sh. Vishnu Dixit on 06.08.1984 through a registered sale deed or that he had not received Rs. 6000/ from Sh. Vishnu Dixit and had not put the said Sh. Vishnu Dixit in possession of the suit property after receipt of the consideration amount.
56. From the aforesaid testimony of DW2 (Sh. Manjit Singh), it stands proved that he as an attorney of Sh. Amar Singh vide GPA dated 13.10.1983 Mark 1 had validly sold the land measuring 150 sq. yards in Khasra No. 14/1 to Sh. Vishnu Dixit vide registered sale deed Ex.DW1/1 who was also put in possession of the suit property. CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 42 of 57
57. DW3 (Sh. Kailash Gupta), another witness examined by the defendant deposed in his examinationinchief that he resides in the same locality where the suit property is situated. He knows Sh. Sham Dass Sehgal, uncle (tau) of defendant very well as he used to reside in the neighbourhood of Sh. Sham Dass Sehgal at Janakpuri. He further deposed that in the year 1996, the defendant, his father and Sh. Sham Dass had requested him to construct over the suit property and he had got construction of boundary wall, two rooms and toilet over the same. He further deposed that since the date of purchase and construction of the suit property, he has seen Sh. Suraj Prakash Sehgal and defendant in the possession of the suit property.
58. In the crossexamination, DW3 (Sh. Kailash Gupta) categorically stated that he had got constructed two rooms, one toilet cum bathroom alongwith boundary wall and gate. He further stated that previously, he was in construction business with one Surender Garg. He does not know whether the disputed property is situated in Khasra No. 13/5 or not. As such nothing material could be extracted from the testimony of this witness as well and it is established that the said CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 43 of 57 witness constructed boundary wall, two rooms and toilet over the suit plot at the instance of defendant, his father and uncle (tau) in the year 1996 and he has seen the defendant and his father in possession of the suit property since its construction in the year 1996.
59. DW4 (Sh. Pankaj Dixit) deposed in his examinationin chief that his deceased father Sh. Vishnu Dixit was the owner and in possession of property bearing No. B2/16, Sewak Park in Khasra No. 14/1, New Delhi which he had purchased vide sale deed dated 06.08.1984 from Sh. Manjit Singh. He further deposed that on 12.04.1994, his father had sold the suit property in two parts i.e. 75 square yards, out of total 150 square yards to Sh. Suraj Prakash Sehgal for a consideration of Rs.20,000/ vide registered Will, GPA, Agreement to Sell, Affidavit and Receipt, all dated 12.04.1994. He further deposed that his father had received the consideration amount of Rs. 20,000/ from Sh. Suraj Prakash Sehgal in his presence and he had signed all the aforesaid documents as one of the attesting witnesses. Remaining 75 square yards out of total 150 square yards was sold jointly to Smt. Baldevi and Sh. Umesh Kumar vide registered Will, GPA, CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 44 of 57 Agreement to Sell, Affidavit and Receipt, all dated 12.04.1994 for a consideration of Rs. 20,000/ which his father had received in his presence. He had also signed the aforesaid documents as one of the attesting witnesses. He further deposed that after execution of aforesaid documents and receipt of consideration amount, his deceased father had handed over the possession of the suit property detailed above to Sh. Suraj Prakash Sehgal, Sh. Umesh and Smt. Baldevi in his presence.
60. In the crossexamination, DW4 (Sh. Pankaj Dixit) was suggested that his father had not purchased the disputed property which he denied. He stated that after going through the title documents which are marked as Mark 2 (Colly) and Ex. DW1/2 (Colly), he has deposed that his father had purchased the disputed property in Khasra No. 14/1. He further stated that he does not have the knowledge whether Sh. Manjit Singh, Attorney holder of the previous owner was having power to execute the sale deed Ex.DW1/1 in respect of the property mentioned in the same. He was also suggested in his crossexamination that his deceased father had made false documents Mark 2 (Colly) and Ex.DW1/2 (Colly) and that his father had no right to execute the said CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 45 of 57 documents in respect to the property mentioned therein which were denied by him. However except putting the suggestions, the plaintiff has not been able to show as to how the documents Mark 2 (Colly) i.e. copy of registered Will, GPA, agreement to sell, affidavit, receipt all dated 12.04.1994 executed by late Sh. Vishnu Dixit in favour of Sh. Suraj Parkash Sehgal and Ex. DW1/2 (Colly) which are GPA, agreement to sell, affidavit and receipt, all dated 12.04.1994 executed by Sh. Vishnu Dixit in favour of late Smt. Baldevi and the defendant have been forged and fabricated by the defendant.
61. From the testimony of DW2 (Sh. Manjit Singh) it has already established on record that he had power to sell the suit property owned by his grandfather Sh. Amar Singh falling in Khasra No. 14/1 vide GPA Mark 1 dated 13.10.1983 and on the basis of said GPA, he had sold the suit property to late Sh. Vishnu Dixit vide registered sale deed Ex.DW1/1. Therefore, it cannot be said that late Sh. Vishnu Dixit had no power to sell the suit property as suggested by Ld. Counsel for the plaintiff to DW4 (Sh. Pankaj Dixit, son of late Sh. Vishnu Dixit).
62. As per the claim of the defendant, late Sh. Vishnu Dixit sold CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 46 of 57 the suit property total measuring 150 sq. yards in to two parts i.e. 75 sq yards to his father Sh. Suraj Prakash Sehgal vide documents Mark 2 (Colly) which are GPA, agreement to sell, affidavit, receipt all dated 12.04.1994 and remaining 75 sq. yards jointly to Smt. Baldevi and him vide documents Ex. DW1/2 (Colly) which consists of GPA, agreement to sell, affidavit and receipt, all dated 12.04.1994. As stated above, the plaintiff has not been able to show that the said documents Mark 2 (Colly) and Ex.DW1/2 (Colly) executed by late Sh. Vishnu Dixit are forged and fabricated document. DW4 (Sh. Pankaj Dixist) categoricaly deposed that the said documents were executed in his presence and his father received the consideration amount in his presence and he also signed the said documents as one of the attesting witnesses. In his cross examination, no suggestion was given to the effect that his deceased father had not received the consideration amount from the defendant and his father in his presence or that his deceased father had not handed over the possession of the suit property to the defendant and his father Sh. Suraj Prakash Sehgal in his presence and said part of his testimony has gone unrebutted and uncontroverted and it stengthens the case of the CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 47 of 57 defendant that late Sh. Vishnu Dixit sold the suit property bearing Plot No. B2/16, Sewak Park, Delhi total measuring 150 sq. in two parts i.e. 75 sq. yards to his father Sh. Suraj Prakash Sehgal and remaining 75 sq. yards jointly to him and Smt. Baldevi.
63. The registered Will executed by late Sh. Vishnu Dixit in favour of Sh. Suraj Prakash Sehgal (the father of the defendant) in respect of property measuring 75 sq. yards out of 150 sq. yards falling in Khasra No. 14/1 and another registered Will executed by him in favour of Smt. Baldevi and the defendant in respect of remaining portion of property measuring 75 sq. yards, both dated 12.04.1994 also duly stands proved on record by DW6 (Sh. Vivek Yadav, Junior Assistant from the Office of Sub RegistrarII, Basai Darapur, New Delhi) as Ex.DW6/1 and Ex. DW6/2 which clearly shows that after the death of Sh. Vishnu Dixit, the property mentioned in the said Wills Ex.DW6/1 and Ex.DW6/2 devolved upon the beneficiary of the Wills.
64. The defendant has also placed on record the certified copy of the registered Will dated 21.03.1996 as Ex.DW1/3 by which Smt. Baldevi had bequeathed her portion in 75 sq. yards in favour of the CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 48 of 57 defendant. The said Will Ex.DW1/3 was not disputed by the plaintiff during the crossexamination of defendant. Smt. Baldevi has expired on 04.04.1996 which is proved from her death certificate Ex.DW1/4 and after her death, her portion in 75 square yards out of suit property total measuring 150 sq. yards devolved upon the defendant by virtue of Will Ex.DW1/3 and he became the sole owner of the 75 sq. yards portion of the suit property which was sold jointly to him and Smt. Baldevi by late Sh. Vishn Dixit vide documents Ex.DW1/2 (Colly). After becoming sole owner of 75 sq. yards portion of the suit property, the defendant became coowner of entire suit property measuring 150 sq. yards falling in Khasra No. 14/1 alongwith his father Sh. Suraj Prakash Sehgal who is owner of remaining 75 sq. yards portion.
65. The defendant in order to prove his defence that he alongwith his father has been in possession of the suit property falling in Khasra No. 14/1 being owner thereof has also examined one more witness, namely, Sh.Ramesh Chandel as DW5 who deposed in his examinationinchief that his house at Sewak Park is situated in the opposite line of houses of suit property and he is old acquaintance of Sh. CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 49 of 57 Sham Dass Sehgal i.e. elder brother of Sh. Suraj Prakash Sehgal. He further deposed that during subsequent visits of Sh. Suraj Prakash Sehgal and defendant herein after purchase of the suit property he also got familiarized with them. He further deposed that around in the year 1996, Sh. Suraj Prakash Sehgal and the defendant had constructed two rooms, toilet and boundary wall in the property bearing No. B2/16, Sewak park, New Delhi and since the date of purchase and construction of the suit property he has seen the suit property in possession of Sh. Suraj Prakash Sehgal and the defendant.
66. In the crossexamination, DW5 (Sh. Ramesh Chandel) stated that he is working in DDA as Executive Engineer and is residing in Dwarka since August 2000. He denied the suggestion put to him that he did not know any person in the name of Shyam Das Sehgal or Suraj Prakash Sehgal and that in the year 1996 Suraj Prakash Sehgal has not made any construction at the address mentioned in affidavit at para no. 3 and that he has not seen Mr. Suraj Prakash Sehgal having possession of suit property and that Mr. Suraj Prakash has not purchased any such property mentioned in para 2 of his affidavit.
CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 50 of 57
67. In the crossexamination of this witness, except putting suggestions, nothing important could be extracted by the Ld. Counsel for the plaintiff and from the testimony of this witness, it stands proved that the defendant and his father Sh. Suraj Prakash Sehgal got constructed the suit property in the year 1996 and he had seen the possession of the suit property with the defendant and his father since its construction.
68. From the aforesaid evidence adduced by the defendant, he has been able to prove that he and his father Sh. Suraj Prakash Sehgal jointly owned the suit property bearing plot No. B2/16, Sewak Park, New Delhi total measuring 150 sq. yards which falls in Khasra No. 14/1 and not in Khasra No. 13/5 as claimed by the plaintiff. The defendant has successfully proved the previous chain of ownership documents as discussed herein above and has shown as to how he became coowner of the suit property alongwith his father Sh. Suraj Prakash Sehgal.
69. Though there is some discrepancy in the sale deed Ex.DW1/1 executed by Sh. Manjit Singh in favour of late Sh.Vishnu Dixit in mentioning the khasra number as highlighted by the Ld. Counsel for the plaintiff in written arguments. In the sale deed Ex.DW1/1, Khasra CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 51 of 57 No. 12/24/1 has been mentioned instead of Khasra No. 14/1 and on this count, the Ld. Counsel for the plaintiff has argued that the said sale deed is in respect of property falling in Khasra No. 12/24/1 and not in Khasra No. 14/1 and hence the defendant cannot seek claim in the property falling in Khasra No. 14/1.
70. On this, the Ld. Counsel for the defendant submitted that there is a typographical mistake in mentioning the Khasra number in the sale deed Ex.DW1/1 executed by Sh. Manjit Singh which was subsequently rectified and in fact the property measuring 150 square yards in Khasra No. 14/1 was sold by Sh. Manjit Singh to Sh. Vishnu Dixit by virtue of sale deed Ex.DW1/1.
71. I find substance in the argument fo Ld. Counsel for the defendant because except this discrepancy in the sale deed Ex.DW1/1, in the other chain of documents produced and proved on record by the defendant, it is evident that the defendant has purchased the suit property falling in Khasra No. 14/1. Even if for the sake of arguments, the title documents of the defendant are taken to be defective, still from the testimonies of DW3 (Sh. Kailash Gupta) and DW5 (Sh. Ramesh CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 52 of 57 Chandel), it has come on record that the defendant and his father are in possession of the suit property since 1996 when they constructed the suit property and it falsifies the claim of the plaintiff of purchase of the suit property in the year 2002.
72. The onus was upon the plaintiff to prove that the suit property which is in possession of the defendant falls in Khasra No. 13/5 and not in 14/1 which the plaintiff has miserably failed to prove as discussed herein above. Hence, this issue is decided against the plaintiff.
Issue No. (2) (Whether the suit is bad for nonjoinder of necessary parties?)
73. The onus to prove this issue is on defendant. In view of my findings under Issue No. (1), it stands proved that the suit property bearing Plot No. B2/16, Sewak Park, New Delhi total measuring 150 sq. yards falling in Khasra No. 14/1 is jointly owned and possessed by the defendant and his father Sh. Suraj Prakash Sehgal. The plaintiff by way of present suit is seeking possession of suit property total measuring CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 53 of 57 150 square yards in possession of the defendant and his father, however the plaintiff has only impleaded defendant in the present case and is seeking relief only against him. However, Sh. Suraj Prakash Sehgal being joint owner of the suit property measuring 150 square yards is a necessary party to the present suit, who has not been impleaded by the plaintiff in the array of the parties and without his impleadment the decree of possession could not have been passed in case the plaintiff succeeds in her case.
74. Order 1 Rule 9 CPC provides as under: Misjoinder and nonjoinder - No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regard the rights and interests of the parties actually before it :
(provided that nothing in this rule shall apply to nonjoinder of a necessary party)
75. The aforesaid provision makes it clear that the suit cannot be defeated by reason of misjoinder and nonjoinder of parties, however the proviso to Rule 9 clarifies that it will have no applicability to non joinder of a necessary party. The necessary party is one without whom no order can be effectively made. It is a fundamental law that all the CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 54 of 57 parties which are necessary in the suit must be arrayed so that the real issues between the parties can be determined. A party will be necessary defendant if there is a right to relief against him in respect of the suit matter and his presence is necessary for the factual and complete adjudication of all the questions involved in the suit.
76. In the present case, the plaintiff despite taking categorical plea by the defendant in the written statement that suit property is jointly owned by him and his father which also stands proved on record, the plaintiff has not impleaded the father of the defendant Sh. Suraj Prakash Sehgal as defendant in the present suit who was a necessary party being coowner of the suit property. Hence, the present suit is bad for non joinder of necessary party. Accordingly, this issue is decided in favour of the defendant and against the plaintiff.
Issue No. (3) (Whether the plaintiff is entitled to the relief of possession with respect to suit property, as prayed for?)
77. The onus to prove this issue is on the plaintiff. In view of my findings under Issue No. 1, since the plaintiff has failed to prove that CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 55 of 57 the suit property in possession of defendant falls in Khasra No. 13/5 and she is the owner of the same and she even could not prove that she was ever in possession of the suit property which is in possession of the defendant falling in Khasra No. 14/1. Hence, the plaintiff cannot be said to be entitled to decree of possession of the suit property. Hence, this issue is decided against the plaintiff.
Issue no. (4) (Whether the plaintiff is entitled to the relief of permanent injunction against defendant, as prayed for? )
78. The onus to prove this issue is again on the plaintiff. However, since the plaintiff has failed to prove her ownership over the suit property and also failed to prove that she was ever in possession of the same, the plaintiff cannot be said to be entitled to the decree of permanent injunction as prayed for. This issue is accordingly decided against the plaintiff.
Issue no. (5) ( Whether the suit discloses cause of action and is maintainable?) CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 56 of 57
79. The onus to prove this issue has been wrongly placed upon the defendant and from the language of the issue, the onus to prove the same should have been placed upon the plaintiff.
80. In view of my findings under Issue No. 1, since the plaintiff has failed to prove her ownership over the suit property in possession of the defendant falling in Khasra No. 14/1 and even the plaintiff has failed to prove that the suit property actually falls in Khasra No. 13/5, it is held that the suit is without cause of action and is not maintainable. Hence, this issue is also decided against the plaintiff.
RELIEF
81. As a sequel to my findings under aforesaid issues, the suit filed by the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly.
82. File be consigned to Record Room after necessary compliance. BALWANT Digitally signed by BALWANT RAI RAI BANSAL Date: 2020.01.17 BANSAL 15:57:05 +0530 Announced in the open Court (Balwant Rai Bansal) th on 10 January, 2020 Additional District Judge05 (SouthWest) Dwarka Courts, New Delhi CS No. 17244/16 Santosh Sharma vs. Umesh Kumar Page 57 of 57