Delhi District Court
Hem Chander vs Ram Swaroop on 29 January, 2022
IN THE COURT OF MS. RISHIKA SRIVASTAVA, LD. CIVIL JUDGE-III, WEST,
DELHI, TIS HAZARI COURTS, DELHI
CS SCJ 607187/16
Unique ID No: DLWT030000161997
1. Hem Chander
2. Sahib Singh
Both sons of late Sh. Sube Singh
R/o Village Harewali,Delhi-110039 .......Plaintiff
Vs.
1. Ram Swaroop
S/o Kalu Ram @ Balu Ram
2. Sh. Tara Chand
3. Sh. Hari Singh
4. Sh. Raja
5. Sh. Phool Chand
6. Sh. Rajinder
All are sons of Sh. Ram Swaroop
R/o Village Harewali, Delhi-110039
7. Gaon Sabha Harewali
Through Block Development Officer
CS No. 607187/16 Hem Chander Vs. Ram Swaroop 1/17
at Alipur, Delhi
8. Union of India
Through Under Secretary (Revenue)
Delhi .... Defendants
Date of Institution : 24.09.1997
Date of which reserved : 10.01.2022
Date of disposal : 29.01.2022
JUDGMENT
1. This is a suit for permanent injunction filed by the plaintiffs against the defendants no. 1 to 6. Vide order dated 06.10.1997, defendants no. 7 and 8 were impleaded as defendants but the plaintiff has not sought any relief against them. During the course of the proceedings, Sh. Vinod, who was earlier one of the defendants, expired and the suit stood abated against him vide order dated 02.07.2014. From the record it appears that Sh.Mahender, who was earlier one of the plaintiffs, also expired during the pendency of the suit and the application under Order XXII Rule 3 CPC for impleaded of his legal representatives was never pressed. The suit was continued by the remaining two plaintiffs only.
PLAINTIFFS' VERSION:
2. The case of the plaintiffs is that:
a. The plaintiffs' father i.e. late Sh. Sube Singh was the owner in possession of the property comprising of one room and open plot bounded by boundary walls and situated in khasra no. 70, measuring CS No. 607187/16 Hem Chander Vs. Ram Swaroop 2/17 125 sq. yards/2.5 biswas in Village Harevali, Delhi (hereinafter referred as 'suit property') since 1951-52, as shown in red in the site plan;
b. The above mentioned property is bounded as under:
i. North - passage ii. South - plot of plaintiff iii. East - passage iv. West - plot of Sh. Rati Ram c. Late Sh. Sube Singh had purchased 200 sq. yards/4 biswas of land in khasra no. 70 from the defendant no. 8 for Rs. 100/- and out of this 1.5 biswas were left for common passage on the north and east side and the remaining portion of 2.5 biswas continued being in possession of the plaintiffs;
d. After the demise of Sh. Sube Singh on 02.06.1996, the present plaintiffs became the owners in possession of the suit property by virtue of being his legal heirs;
e. In 1951-1952, consolidation proceedings had taken place wherein late Sh. Sube Singh had received another agricultural land in lieu of the suit property and therefore, the suit property was mutated in the name of defendant no. 8, but despite that the possession of the suit property continued to be with him only;
f. In 1963, Late Sh. Sube Singh ultimately purchased the suit property from defendant no. 8 and the said sale was sanctioned by the Chief Commissioner and requisite intimation in this regard was sent to the Block Development Officer, Kanjhwala, Nangloi, Delhi;
CS No. 607187/16 Hem Chander Vs. Ram Swaroop 3/17 g. Despite the said purchase, the land was not mutated in the name of the late Sh. Sube Singh and in 1989-1990, the Gaon Sabha initiated ejectment proceedings in the court of Revenue Assistant wherein the Halka Patwari submitted his report dated 28.05.1990 as per which the late Sh. Sube Singh was in possession of the suit property; h. On the south side of the suit property is a plot measuring 2 biswas in khasra no. 31/13/30 and there is a dispute between the plaintiffs and defendants no. 1 to 6 with respect to it;
i. The plaintiffs have also become the owner of the suit property by virtue of section 86 A of Delhi Land Reforms Act, 1954; j. The defendant no. 1 had tried to dispossess the late Sh. Sube Singh from the suit property and therefore the latter had filed a suit for injunction against the former but this suit stood abated after his death as the legal representatives were not impleaded within the prescribed period;
k. On 21.09.1997 at about 03.30 p.m., the defendants no. 1 to 6 attempted to enter the suit property, break open the plaintiffs' lock and claimed to be the owner of the suit property. A police complaint in this regard was filed;
l. The defendants no. 1 to 6 are threatening to dispossess the plaintiffs from the suit property and therefore, the plaintiffs was constrained to file the present suit for injunction against dispossession by defendants no. 1 to 6.
CS No. 607187/16 Hem Chander Vs. Ram Swaroop 4/17 VERSION OF DEFENDANTS NO. 1 TO 6:
3. On the other hand, the case of the defendants no 1 to 6, as stated in their common written statement, is as follows:
a. The plaintiffs are not the owners in possession of property consisting of one room and open plot;
b. The property consisting of one room and open plot measuring 2.5 biswas is not a part of khasra no. 70, contrary to the averments of the plaintiffs and khasra no. 70 consists of firni/Gaon Sabha land; c. The boundaries of plot no. 31/13/30 and piece of land measuring 2.5 biswas "contiguous and adjacent" to plot bearing no. 31/13/30 are: i. North - road ii. South - plot no. 31/13/31 iii. East - road iv. West - plot no. 31/13/29 d. Some villagers including the plaintiffs are in illegal possession of the firni land i.e. khasra no. 70 but this firni land is distinct from the suit property and is situated at least 200 feet away from it, with a 30 feet wide metalled road between them;
e. The land measuring 2.5 biswas contiguous and adjacent to the plot no. 31/13/30 has been in actual physical possession of the defendant no. 1 and his father since 1953;
f. In December 1989, the defendants had constructed one room and boundary wall on the above said adjacent piece of land; g. The alleged report of the Halka Patwari is forged as the plaintiffs were never in possession of the property as shown in red in the site map CS No. 607187/16 Hem Chander Vs. Ram Swaroop 5/17 attached with the plaint and the possession of the same has been with the defendants no. 1 to 6 for over 50 years;
h. The Gaon Sabha does not have the power to transfer any property to the plaintiffs or their father and if at all any document was executed for this purpose, the same was liable to be registered by virtue of section 17 of Registration Act, 1908;
i. The plaintiffs are trying to grab the property of the defendants who are from a socially backward caste and community; j. Further, the jurisdiction of the civil court is barred by Delhi Land Reforms Act, 1954;
k. Therefore, the suit of the plaintiffs is liable to be dismissed with cost.
VERSION OF DEFENDANTS NO. 7 TO 8:
4. In the common written statement filed by them, bare and unspecific denials of the averments of the plaint were made and it was submitted that the question of application of section 86 A of Delhi Land Reforms Act, 1954 does not arise as neither the plaintiffs were nor their father was in possession of the suit land and the Gaon Sabha is the bhumidhar and owner of it.
ISSUES FRAMED:
5. Vide order dated 20.05.2010, the following issues were framed:
1. Whether the civil court has no jurisdiction to try to present suit? OPD 8 &9 CS No. 607187/16 Hem Chander Vs. Ram Swaroop 6/17
2. Whether the suit is liable to be dismissed for want of notice under section 80 CPC and section 99 of Delhi Panchayat Raj Act? OPD 8 & 9
3. Whether there is no cause of action against the defendants? OPD 8 & 9
4. Whether the plaintiff has no locus standi to file the suit? OPD 8 & 9
5. Whether the suit is not maintainable, in view of the judgment dated 16.09.1997 in suit no. 93/1990? OPD-1
6. Whether the plaintiff is entitled the decree of permanent injunction, as prayed? OPP
7. Relief It must be noted that defendants no. 8 and 9 are now defendants no. 7 and 8 respectively, after the death of Sh. Vinod, one of the defendants, the onus of proof has to be understood accordingly.
EVIDENCE:
6. In plaintiffs' evidence, plaintiff no. 1 examined himself as PW-1. His examination in chief by way of affidavit is Ex PW-1/A and he relied upon the following documents:
Ex. PW-1/1 Site map
Ex. PW-1/2 Block Development letter dated 04.06.1964
Mark A Letter of patwari dated 28.05.1990
Ex PW-1/4 Orders dated 16.09.1997 and 03.09.1990 in suit
no. 93/1990
Ex PW-1/5 and Ex PW-1/8 Certified copy of plaint, written statement,
replication and interim order
Mark B Compromise letter dated 26.12.1989 pertaining
to plot no. 31/13/30
CS No. 607187/16 Hem Chander Vs. Ram Swaroop 7/17
He was duly cross-examined by ld. counsel for the defendants no. 1 to 6 and discharged.
7. Sh. Sushil Kumar, Assistant Ahlmad was summoned and examined as PW-3. He relied upon one document i.e. inspection application report of record room along with receipt which is Ex PW-1/9. Sh. Anil Kumar Sharma, the draftsman of the site plan, was examined as PW-4. He relied upon a site plan which is Ex PW-4/1. He was duly cross-examined and discharged. Thereafter, Sh. T. Lakra, Kanoongo was examined in PE. It appears that due to a typographical error, even he has been labelled as PW-4. For the sake of clarity, the Court will refer to both the witnesses identified as PW-4 by their names. PW T. Lakra was also duly cross-
examined and discharged. Thereafter, Sh. Raj Singh and Sh. Vinod, both residents of village Harewali, were examined and once again it appears that they have both been labelled as PW-5 due to a typographical error. The Court will refer to them also by their names to avoid confusion. Then, Sh. Kapil, another resident of village Harewali was examined and cross-examined as PW-6. Lastly, Sh. Sumit, JJA, Record Room was examined as PW-7 and he was not cross-examined despite opportunity. Thereafter, plaintiffs' evidence was closed.
8. In defendants' evidence, defendant no. 1 was examined as DW-1. His examination in chief by way of affidavit is Ex. DW-1/A and he relied upon Ex DW-1/1 which is a revenue record (same as Ex PW-1/D1) and also upon documents pertaining to kalandra dated 05.03.1990 which is Ex PW-1/D2. DW-1 was duly cross-examined by ld. counsel for the plaintiffs and discharged. Defendant no. 3 was then examined as DW-2 CS No. 607187/16 Hem Chander Vs. Ram Swaroop 8/17 and his examination by way of affidavit is Ex DW-2/A, he was also cross-examined and discharged. Thereafter, defendant's evidence was closed and final arguments were heard.
ISSUE WISE FINDINGS:
Issues no. 1 to 4:
1. Whether the civil court has no jurisdiction to try to present suit? OPD 8 &9
2. Whether the suit is liable to be dismissed for want of notice under section 80 CPC and section 99 of Delhi Panchayat Raj Act? OPD 8 & 9
3. Whether there is no cause of action against the defendants? OPD 8 & 9
4. Whether the plaintiff has no locus standi to file the suit? OPD 8 & 9
9. The onus of proof with respect to these issues lay upon the defendants no.
7 and 8. Neither did they lead any evidence on these issues nor did anyone appear on their behalf to advance arguments upon them. There is nothing to show that the plaintiffs do not have locus standi to file this suit and a bare reading of the plaint discloses the presence of a cause of action. Whether the plaintiffs succeed in proving this cause of action will be subsequently discussed while dealing with issue no. 6. Thus, in the absence of evidence or arguments to the contrary, issues no. 3 and 4 are decided against the defendants and in favour of the plaintiffs.
10. This is a suit for injunction simplicitor and there is nothing on record which shows that the relief sought in this suit is covered in any of the entries mentioned in the Schedule I of the Delhi Land Reforms Act, 1954. The jurisdiction of the civil court is barred under Section 185 of the Act CS No. 607187/16 Hem Chander Vs. Ram Swaroop 9/17 only when the reliefs sought therein are covered by the said schedule and not merely because Delhi Land Reforms Act, 1954 may be applicable to the property in question. For this reason, the court finds that the jurisdiction of the civil court is not barred.
11. The court must also be mindful that no relief has been sought against defendant no. 7 and 8 who were impleaded in the present suit as per the directions of the ld. predecessor of this court vide order dated 06.10.1997. Thus, the suit is not barred by section 80 of the Code of Civil Procedure, 1908 or section 99 of the Delhi Panchyati Raj Act, 1954 as well.
12. Issues no. 1 to 4 are accordingly decided against the defendants no. 7 and 8 and in favour of the plaintiffs.
Issue no. 5:
5. Whether the suit is not maintainable, in view of the judgment dated 16.09.1997 in suit no. 93/1990? OPD-1
13. It has been contested by the defendants no. 1 to 6 that this suit is not maintainable because an earlier suit filed by the father of the plaintiffs pertaining to the same suit property stood abated vide judgment dated 16.07.1997. The provision of law relevant for consideration is Order XXII Rule 9(1) CPC which states that where a suit abates or is dismissed under Order XXII then no fresh suit on the same case of action can be brought. The key question before the court is whether the cause of action CS No. 607187/16 Hem Chander Vs. Ram Swaroop 10/17 in the earlier suit bearing no. 93/1990 is the same as the cause of action is this suit.
14. In this regard, paragraph no. 11 of the plaint is significant as it mentions certain events that took place after the passing of order dated 16.07.1997.
The plaintiffs have stated that on 21.09.1997 at about 3:30 p.m., defendants no. 1 to 6 came to the suit property, tried to break open the lock of the room and attempted to dispossess the plaintiffs from it, asserting their claim over it after the dismissal of the plaintiffs' application under Order XXII Rule 3 CPC. The cause of action for this suit is based upon the alleged threat of dispossession extended by the defendants no. 1 to 6 on 21.09.1997. Therefore, from a bare reading of the plaint itself it is evident that the cause of action for this suit arose subsequently to the judgment/order dated 16.07.1997 and hence the bar under Order XXII Rule 9(1) CPC will not be applicable.
15. Issue no. 5 is accordingly decided in the negative and in the favour of the plaintiff.
Issue no. 6:
6. Whether the plaintiff is entitled the decree of permanent injunction, as prayed? OPP
16. This is the core issue between the parties. The onus of proof lies upon the plaintiff. Before the court proceeds to analyze the pleadings and the evidence led by both the parties, it must be noted that this is a suit for injunction against dispossession and not a suit for declaration of title. In these circumstances, the Court need not venture into deciding upon the CS No. 607187/16 Hem Chander Vs. Ram Swaroop 11/17 question of title and will decide the suit with reference to a finding on possession only.
17. In the present case, the court is not concerned with ownership or possession over khasra/plot no. 31/13/30 and the controversy is confined to a piece of land measuring 2.5 biswas which is situated next to it. While the plaintiffs have pleaded that this piece of land i.e. the suit property forms a part of khasra no. 70 and is in their possession, the defendants no. 1 to 6 have submitted that it does not form a part of khasra no. 70, which is actually situated 200 feet away from it. The defendants have also claimed to be in possession of this piece of land measuring 2.5 biswas. Thus, from the pleadings of both the parties, two questions arise for consideration: the first pertains to the identity of the property measuring 2.5 biswas shown in red in the site map Ex PW-4/1 and the second pertains to possession over it. The court will deal with the questions one by one.
18. With regards to the first question as to the identity of the portion shown in red in the site plan Ex PW-4/1, first and foremost it must be noted that the written statement as well as the evidence affidavit of DW-1 is conspicuously silent upon what is the correct khasra no. or plot no. of this piece of land. The defendants no. 1 to 6 have disputed that it is a part of khasra no. 70 but have failed to provide the correct identity themselves or file a site plan of their own. Moreover, interestingly during cross- examination, DW-1 expressly and unambiguously stated that he neither knows the khasra no. of this land nor of his own plot. He also admitted to not knowing whether khasra no. 70 shares a border with the land in his CS No. 607187/16 Hem Chander Vs. Ram Swaroop 12/17 possession. DW-2 in his cross-examination expressly stated that he knows nothing about khasra no. 70. Further, surprisingly none of the plaintiffs' witnesses have been cross-examined by defendants no. 1 to 6 on the question of identity of this piece of land/suit property. The fact that the draftsman of the site map Ex PW-4/1 did not visit the site personally is a reason for the court to view his testimony with a pinch of salt but is not enough to hold that the suit property/portion shown in red in site map is not a part of khasra no. 70. Thus, the evidence of the plaintiff with regard to the identity of the suit property has remained unrebutted.
19. In this regard, the court also feels compelled to mention that the common written statement filed by the defendant no. 7 and 8 i.e. the Gaon Sabha and the Union of India is most unhelpful and comprises only of bare and unspecific denials. They have not disputed the identity of the suit property or the correctness of the site map in their written statement. Since unspecific denials amount to admissions as per Order VIII Rules 3 and 5, CPC, the Court considers it fit to deem that the identity of the suit property has been admitted by the defendants no. 7 and 8 also.
20. Thus, upon a consideration of the entire material on record and upon a preponderance of probabilities, the Court finds that there is nothing to believe that the plaintiffs have incorrectly identified the property shown in red in site map Ex PW-4/1 and finds that the same forms a part of khasra no. 70 in Village Harevali, Delhi.
21. The next question pertains to possession over the suit property. It is settled law that a person in peaceful possession is entitled to retain his CS No. 607187/16 Hem Chander Vs. Ram Swaroop 13/17 possession, even if he is not the owner thereof, and in order to protect such possession he may even use reasonable force to keep out a trespasser. Reference in this regard may be placed upon Rame Gowda vs M. Varadappa Naidu AIR 2004SC 4609. The relief sought by the plaintiffs is that they should not be dispossessed from the suit property by the defendants no. 1 to 6. No relief has been sought against defendant no. 7 and 8, who are the true owners of the suit property, as per the submissions of the ld. counsel for the defendants no. 1 to 6 and the written statement of defendant no. 7 and 8. Thus, in order to decide upon this issue, the court will have to determine whether the plaintiffs are in peaceful possession of the suit property.
22. The most relevant evidence is this regard has emerged from the cross-
examination of DW-1 who has categorically admitted that he is not in possession of land forming a part of khasra no. 70. This admission is crucial in light of the finding of this court that the suit property forms a part of khasra no. 70 itself. Even otherwise, DW-1 has stated in his cross examination that "it is correct that Gaon Sabha initiated proceedings against Sh. Sube Singh, father of the plaintiffs, qua the lands, as he was in possession of the same". The use of the word "lands" above is of significance as this is the term used by the defendants to describe the suit property in the written statement. The defendants no. 1 to 6 have, for reasons best known to them, shied away from stating the khasra no. or plot no. of the suit property and have only referred to it as "land". Thus, either way, the possession of the plaintiffs has been admitted by DW-1.
CS No. 607187/16 Hem Chander Vs. Ram Swaroop 14/17
23. The plaintiffs have also led evidence to prove their possession. PW-1 has deposed on the lines of the plaint and nothing to the contrary has emerged from the cross-examination with respect to their possession and the defendants' attempt to dispossess. Much of the cross-examination of the PW-1 pertains to khasra no. 31/13/30 which is not relevant for deciding upon the present issue. PW Vinod is a resident of village Harewali and even he has deposed that the plaintiffs are in possession of the suit property. He has not been cross-examined at all on this aspect and his cross-examination is limited to a kalandra pertaining to property in khasra no. 31/13/30. Thus, the testimonies of PW-1 and PW Vinod also prove the possession of the plaintiffs over the suit property. PW T. Lakra, Kanoongo also confirmed the possession of the father of the plaintiffs in khasra no. 70, however, given the absence of relevant written records and documentation, the court deems it fit to attach only slight corroborative value to his testimony.
24. Lastly, the defendants have not led any evidence apart from the testimony of DW-1 to show that they are in possession of the suit property. Ex DW- 1/1 which is the same Ex PW-1/D1 is a revenue record pertaining only to khasra no. 31/13/30 and makes no mention of khasra no. 70 or any other land. Ex PW-1/D2 is a kalandra pertaining to khasra no. 31/13/30 and has no bearing on this suit. It appears that the defendants, in their anxiety to assert their right over khasra no. 31/13/30, neglected to lead evidence pertaining to the suit property.
25. Upon considering the admissions made by DW-1 in his cross-
examination, the unrebutted testimony of PW-1 and PW Vinod, the CS No. 607187/16 Hem Chander Vs. Ram Swaroop 15/17 testimony of PW T. Lakra, and the absence of any reliable positive evidence from the defendants, the court finds that upon a preponderance of probabilities, the plaintiffs have shown that they are in peaceful possession of the suit property as shown in red in the site map Ex PW-4/1 and that the defendants have threatened to dispossess them. Since the defendants have failed to establish any right over the suit property, the Court finds that the plaintiffs are entitled to the relief of permanent injunction restraining the defendants from dispossessing them from the property measuring 125 sq. yards, comprising in khasra no. 70, village Harewali, Delhi, as shown in red in the site map Ex PW-4/1.
26. Issue no. 6 is decided in the affirmative and in favour of the plaintiffs.
27. However, as a matter of abundant caution, the Court deems it fit to observe that nothing in this order operates as a finding on possession or ownership over khasra/plot no. 31/13/30, Village Harewali, Delhi and nothing prevents the defendant no. 7 & 8 from taking any lawful action for eviction of the plaintiffs from the suit property.
RELIEF:
28. In view of the abovementioned findings, the Court finds that the plaintiffs are entitled to a decree of permanent injunction restraining the defendants no. 1 to 6 from dispossessing the plaintiffs from the property measuring 125 sq. yards, situated in khasra no. 70, village Harewali, Delhi, as shown in red in the site map Ex PW-4/1.
29. Cost of suit to be paid by the defendants no. 1 to 6 as per rules.
CS No. 607187/16 Hem Chander Vs. Ram Swaroop 16/17
30. Let decree sheet be drawn up accordingly.
31. File be consigned to record room after due compliance.
Announced in the Open Court today i.e. 29.01.2022 (Rishika Srivastava) CJ (West)-03/Delhi 29.01.2022 CS No. 607187/16 Hem Chander Vs. Ram Swaroop 17/17