Delhi District Court
Sh. Sukhbir Singh vs ) Sh. Roop Chand on 19 December, 2013
IN THE COURT OF SH. R. B SINGH
ADDITIONAL DISTRICT JUDGE01(WEST) : DELHI
RCA No. 50/12 ID NO. 02401C0508912012
Sh. Sukhbir Singh
S/o Late Sh. Mange Ram,
R/o H. No. 68, Village Rani Khera,
Delhi - 110081 ......Appellant
Versus
1) Sh. Roop Chand
S/o Sh. Mange Ram,
R/o V & PO Rani Khera,
Delhi - 110081.
2) Sh. Ram Kishan
S/o Sh. Surajmal,
3) Sh. Kaptan Singh
S/o Sh. Khem Chand
Both 2 & 3 are residents of
Village Rani Khera,
Delhi - 110081. .....Respondents
Date of institution : 26.10.2012
Date of judgment : 19.12.2013
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J U D G E M E N T
By this judgment I propose to dispose of the present appeal under Section 96 read with Order 41 Rule 1 read with Section 151 of CPC filed against the impugned judgment / decree dated 17.09.2012 passed by Sh. Amit Bansal, ld. SCJ / RC (West), Tis Hazari Courts, Delhi in suit no. 312/08 entitled "Sh. Sukhbir Singh & Sh. Roop Chand & Ors".
2. The brief facts arising out of the appeal are as under:
The plaintiff, appellant herein, is the owner, in possession, use and occupation of property bearing Khasra No. 49/41, measuring 8 biswas, situated in Revenue Estate of Village Rani Khera, Delhi - 110081. The plaintiff was allotted the above said land in the extended abadi, having an area of around 18 biswas in lieu of agricultural land during the consolidation proceedings of village Rani Khera, Delhi, held in the year 195253. Out of 18 biswas of land in the year 1962, the father of the plaintiff had exchanged 10 biswas of land falling in the extended abadi of Lal Dora with the land of 10 biswas from Sh. Suraj Mal and Sh. Khem Chand falling in the old Lal Dora as per mutual settlement / verbal agreement between the parties, and possession thereto was taken by both the parties in respect of the land exchanged by them. Out of 8 biswas of land of the plaintiff 181 sq. yds. Of land are trying to encroach Sukhbir Singh Vs. Roop Chand & Ors. Page 2 of 15 upon illegally by the respondents no. 2 herein and 119 sq. yds. encroached by the respondent no. 3 herein and 145 sq. yds land of respondent no. 1 herein in the garb of 10 biswas of land which was exchanged as stated above.
Accordingly, the appellant has filed a suit for permanent injunction against the respondents no. 2 & 3 bearing suit no. 1352/006. After the said exchange, the appellant was left with him only 18 biswas (approx 900 sq. yds.) of land in the extended abadi. The appellant has constructed a house upon 3 biswas (approx. 160 sq. yds.) of land and rest of land i.e 15 biswas (approx. 750 sq. yds.) of area is lying vacant. The vacant land is being used by the appellant for the purpose of tying cattle and storage of cattle feeds etc. The respondents with malafide intention have tried to caste a cloud over the title of the appellant and has tried to encroach approx 446 sq. yds. Of land of the appellant which is lying vacant though legally he has no right, title or interest whatsoever in the property of the appellant. The appellant being the law abiding citizen approach the respondents on 25.03.2008 and requested him to handover the land of appellant so encroached by the respondents to the appellant but the respondents being the muscleman threatened the appellant. The appellant being the law abiding citizen, also call the village panchayat of the respectable persons of the society but no avail. Sukhbir Singh Vs. Roop Chand & Ors. Page 3 of 15
On 10.04.2008, the appellant rushed to the police station and apprised the facts and circumstances regarding the encroachment upon the land of the appellant by the respondents but the police officials suggested the plaintiff that the present matter is of civil nature. Hence, the suit was filed. Feeling aggrieved by the judgment / decree dated 17.09.2012, the appellant herein, preferred present appeal for setting aside / quashing the impugned decree / judgment on the following grounds :
A. The impugned judgment and decree dated 17.09.2012 is liable to be setaside as same is against the facts, records, documents and circumstances of the case as same is based upon conjectures and surmises.
B. The respondents have filed forged, fabricated & manipulated documents without any signature of parties.
C. Ld. trial court did not take into consideration that the respondents have no right over the property as the appellant is the owner of the property.
D. The respondents have been playing a fraud
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with ld. trial court as well as the appellant.
E. Ld. trial court did not pay attention on the
documents i.e extended abadi certificate for the year 195253 filed by the appellant.
F. Ld. trial court failed to appreciate that no land / property exist in the name of the respondents, hence they have no right, title or interest to exchange the said land by another property.
G. Ld. trial court did not avail the opportunity to the appellant to summon and their cross examination of respondent's witnesses namely Ishwar Singh, Dharambir & the concerned clerk / record keeper from the SubRegistrar Office, Kashmere Gate, Delhi which is very necessary for the property adjudication of the case.
H. Ld. trial court did not appreciate on the contents of both the suits and ordered about contradiction in both suits about encroachment of the respondents. In the suit no. 312/2008, wherein the appellant mentioned that the respondents are Sukhbir Singh Vs. Roop Chand & Ors. Page 5 of 15 trying to encroach the land. On the other hand, in suit no. 18/2009/2006, wherein mentioned that the said land was in the possession of the appellant and lying vacant being used by the appellant for the purpose of tying of cattle and storage of cattle's feeds.
J. The reason advanced by ld. trial court in support of its findings are neither supported by the facts of the case nor by the provision of law and that the impugned judgment is erroneous and liable to be set aside.
It is, therefore, prayed that the combined judgment / decree dated 17.09.2012 in suit no. 18/2009/2006 & 312/2008 passed by Sh. Amit Bansal, ld. SCJ / ARC, (West), Tis Hazari Courts, Delhi titled as "Sukhbir Singh Vs. Roop Chand & Ors." may kindly be setaside and the suit of the appellant may be decreed in favour of the appellant and against the respondent in the interest of justice.
3. On the contrary, it has been submitted on behalf of all the respondents that the appellant is a habitual litigant used to file self contradictory, false, vague and baseless cases with malafide intention to harass the villagers and extract money from them. The appellant is Sukhbir Singh Vs. Roop Chand & Ors. Page 6 of 15 neither the owner nor in possession of the suit property. The appellant has no locus standi to file the present suit ; therefore, the present appeal is liable to be dismissed on this ground. The appellants have not came with clean hands before the court and deliberately concealed the true and material facts, and therefore not entitled to the equitable relief as sought in the appeal.
However, the true and correct facts are as follows:
Sh. Roop Chand was the owner of the land in question and in the year 1962 Sh. Roop Chand S/o Sh. Nanu, exchanged 15 biswas of his land falling in the extended lal dora with 10 biswas of land of the forefathers of the respondents Sh. Mir Singh and Prabhati both S/o Sh. Jasmat ; Sh. Surajmal and Sh. Khem Chand both S/o Het Ram and Mahipal and Deepu falling in the old lal dora and as per the registered exchange deed dated 29.08.1962 before respectable persons of the villagers. It is pertinent to mention here that the value of the 15 biswas of land of Sh. Roop Chand and 10 biswas land of the forefathers of the respondents was fixed at Rs. 500. As per the exchange deed and contract between the parties, possession thereto was taken by both the parties in respect of the lands exchanged by them. Since then the forefathers of the respondents and after their death their respective legal heirs including the respondents are in actual physical possession of the suit property i.e Sukhbir Singh Vs. Roop Chand & Ors. Page 7 of 15 15 biswas of land situated in khasra no. 49/41 in village Rani Khera, Delhi.
The appeal is bad for joinder / misjoinder of the necessary and property parties and therefore, liable to be dismissed. All the legal heirs of Sh. Roop Chand S/o Sh. Nanu, Sh. Mir Singh and Prabhati both S/o Sh. Jasmat ; Sh. Surajmal and Sh. Khem Chand both S/o Het Ram and Mahipal and Deepu are necessary and proper parties for adjudication of the issue involve in the present appeal. It is specifically denied that the appellant is owner and in possession of house no. 68 falling an khasra no. 49/41 having an area of 8 biswas in village Rani Khera, Delhi as shown in site plan. As stated above after the exchange of the property in 1962 possession thereto was taken by both the parties in respect of the lands exchanged by them. It is specifically wrong and denied that the appellant was allotted the aforesaid land during the consolidation proceedings of village Rani Khera during the year 195253.
It is specifically wrong and denied that in the year 1962 the appellant exchanged 10 biswas of his land falling in the extended lal dora with 10 biswas of land of the respondents falling in the old lal dora and as per mutual settlement / verbal agreement between the parties. It is pertinent to mention here that the value of the 15 biswas of land of Sh. Roop Chand and 10 biswas land of the forefathers of the respondents Sukhbir Singh Vs. Roop Chand & Ors. Page 8 of 15 was fixed at Rs. 500/. It is specifically denied that after the said exchange the appellant was left with only 8 biswas of land in the extended abadi. It is specifically denied that the respondents with malafide intention has tried to caste a cloud over the title of the appellant and has tried to encroach upon the land of the appellant which is lying vacant, though legally they have no right, or interest on the same. It is specifically denied that the respondent has ever encroached any land alleged in the appeal. It is specifically wrong and denied that the respondent are musclemen and have roots in the police. The whole story is false, frivolous, concocted, afterthought and vague.
It is, therefore, prayed that appeal is not maintainable in the eyes of law and same may be dismissed with heavy costs in the interest of justice.
4. I have heard ld. counsel for the parties and perused the material on record including ld. trial court record carefully. Ld. counsel for the parties have also filed the written submissions and I have perused them also.
5. Perusal of ld. Trial court record of the suit no. 312/2008 reveals that ld. trial court has framed following issues :
(1) Whether the suit is bad for nonjoinder of necessary parties as claimed in preliminary objection Sukhbir Singh Vs. Roop Chand & Ors. Page 9 of 15 no. 3 of defendant, if so, its effect ? OPD (2) Whether the suit is bad for nonjoinder of necessary parties as claimed in preliminary objection no. 3 of defendant, if so, its effect ? OPD (though issue no. 1 & 2 are same and identical) (3) Whether the suit is barred under the provisions of DLR Act ? OPD (4) Whether the plaintiff is entitled to equitable relief of permanent injunction, as prayed for ? OPP (5) Whether the plaintiff is entitled to equitable relief of mandatory injunction, as prayed for ? OPP (6) Relief.
And in the suit no. 18/09/06, ld. trial court has framed following issues :
(1) Whether the suit is bad for nonjoinder of necessary parties as claimed in preliminary objection no. 3 of defendant, if so, its effect ? OPD (2) Whether the suit is barred by limitation ? OPD2 (3) Whether the suit is barred under the provisions of DLR Act ? OPD (4) Whether the plaintiff is entitled to equitable relief of permanent injunction, as prayed for ? OPP Sukhbir Singh Vs. Roop Chand & Ors. Page 10 of 15 (5) Relief.
and ld. trial court has disposed of both the suits by common judgment.
6. Let me briefly discuss the evidence and material on record issuewise :
Issue No. 1, 2 (in suit No. 312/08) and Issue No. 1 in suit No. 18/09/2006 So far as issue no. 1 & 2 in suit no. 312/2008 (though it should have been issue no. 1 only) and issue no. 1 in suit no. 18/09/06, is concerned, ld. trial court has rightly come to the conclusion that both the suits of plaintiff are bad for nonjoinder of necessary parties. As per khasra / khatauni pertaining to khasra no. 49/41, Ex. PW1/1 and Ex. PW1/2 respectively, the name of the owners are Sh. Jeet Singh, Sh. Satbir Singh, Sh. Baljeet Singh and Sh. Sukhbir, all sons of Sh. Mange Ram who all are owners of ¼ portion each. The other coowners are Sh. Ishwar Singh, Sh. Dharambir and Sh. Sultan Singh all sons of Roop Chand and they are the owners of ¾ part, which clearly shows that the plaintiff Sh. Sukhbir Singh is not the sole owner of the property but is only 1/16th share only but the plaintiff has not joined the other cosharers in the suit who are the necessary and proper parties. Sukhbir Singh Vs. Roop Chand & Ors. Page 11 of 15
Even as per the deposition of the defendant / respondent no. 1 herein, Sh. Mir Singh and Prabhati both S/o Sh. Jasmat ; Sh. Surajmal and Sh. Khem Chand both S/o Het Ram and Mahipal and Deepu are the necessary parties for adjudication of this suit. But in the suit no. 312/08 only Roop Chand has been impleaded as necessary party, though in the suit no. 18/2009/2006 only. Ram Kishan and Kaptan has been impleaded as necessary party and other cosharers as per Ex. DW1/1 has not been impleaded as necessary party. Hence, ld. trial court has rightly come to the conclusion that both the suits of the plaintiff are bad in law for non joinder of necessary parties and require no interference from this court. Issue no. 2 (in suit no. 18/2009/2006):
Whether the suit is barred by limitation ? OPD 2 - No finding on the aforesaid issue is required to be given as this issue has been decided against the defendant no. 2 and in favour of the plaintiff. Issue no. 3 (in both cases):
Whether the suit is barred under the provisions of DLR Act ? OPD, was not pressed by the defendants in both the cases and consequently, this issue was decided against the defendants. Hence, no opinion of this court is warranted in this regard.
Issue no. 4 (in both the suits) : Whether the plaintiff is entitled to the equitable relief of permanent injunction, as prayed for ? OPP and, Sukhbir Singh Vs. Roop Chand & Ors. Page 12 of 15 Issue No. 5 (in suit no. 312/2008) : Whether the plaintiff is entitled to equitable relief of mandatory injunction, as prayed for ? OPP.
Perusal of the entire material on record including evidence led on behalf of the parties reveals that ld. trial court has rightly come to the conclusion to the aforesaid issues and no interference by this court is required, as the plaintiff / appellant has deposed that there was an exchange of lands between his grand father and the father of the defendant. But it was only 10 biswas of land only. It is wrong to suggest that the exchange deed was registered in favour of the defendant in respect of exchange of land. On the contrary DW1 Ram Kishan has deposed that the document Ex. DW1/1 was registered in 1962. He got its translation Ex. DW1/2 done from the authenticated translator. The grand father of the plaintiff has exchanged the land with the family of the respondents and hand over 750 sq. yds of land and the family of the respondent has given the plaintiff's family 500 sq. yds of land. Since the value of the defendant's / respondent's land was more than the value of the plaintiff's family land, as the property of the defendant / respondent was located in old Lal Dora. It is wrong to suggest that in 1962, 10 biswas of land was exchanged to 10 biswas of land only. The documents i.e exchange deed Ex. DW1/1 and it translation Ex. DW1/2 are the registered documents and pertains to the year 1962 and same has not Sukhbir Singh Vs. Roop Chand & Ors. Page 13 of 15 been challenged by filing appropriate proceedings before any court of law. In view of the registered exchange deed Ex. DW1/1, the testimony of the plaintiff to the effect that the exchange of 10 biswas of his family land was done by the 10 biswas of land of the defendant's family become doubtful. The Ld. trial court has rightly come to the conclusion that the testimony of the plaintiff in both the cases is highly doubtful, as civil suits are decided by the theory of prepondrance of the probability i.e what could have happened in the given circumstances and what could have happened. The submissions of the defendant / respondent to the effect that 15 biswas of the land of the plaintiff's family was exchanged that 10 biswas of land of the defendant's family as the land of the defendants was situated in Lal Dora and the land within Lal Dora was treated as costly comparable to the land situated in the extended Lal Dora in those days. The aforesaid submission of defendants / respondent is also fortified by a document i.e the exchange deed Ex. DW1/1 and its translation Ex. DW1/2 which is the registered document. The pleadings are silent whether any proceeding has been filed for cancellation of the exchange deed Ex. DW1/1. The stand taken by the plaintiff / appellant that the property in question do not stand mutated in the name of grand father of the defendants in the revenue record on the basis of exchange deed of the year 1962 do not hold good as the mutation entries do not Sukhbir Singh Vs. Roop Chand & Ors. Page 14 of 15 convey or extinguish any title as these entries are relevant only for the purpose of collection of land revenue. Under the aforesaid discussion, no interference is required so far as issue no. 4 and 5 are concerned as ld. trial court has rightly decided the aforesaid issues.
7. In view of the aforesaid discussion, since the ld. trial court has rightly not granted the relief to the plaintiff, appellant herein, and no interference is required by this court. Consequently the appeal is dismissed with no order as to costs. Decreesheet be prepared accordingly. Interim orders passed during the pendency of the appeal, if any, be treated as non'est.
8. A copy of this judgment alongwith ld. trial court record be sent back to ld. trial court and appeal file be consigned to the record room.
Announced in Open Court on 19th of December, 2013. ( R. B SINGH ) Additional District Judge01(West) Delhi.
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