Delhi District Court
Sh. Iqbal Ansari vs Sh. Ataurreham on 31 August, 2016
1
IN THE COURT OF MS SUJATA KOHLI, ADDL. DISTRICT JUDGE
CENTRAL DISTT. TIS HAZARI COURTS, DELHI.
CS No. 346/14/2011
Case No. 16467/16
Unique case ID No.02401C0354982011
SH. IQBAL ANSARI
S/o Sh. Mohd. Siddique Ansari
R/o Shop No.1, First Floor,
DDA Mini Market, Shehzada Bagh,
Phase-1, Opposite Bari Masjid,
Inderlok, Delhi-110035. ..........Plaintiff
Versus
1. SH. ATAURREHAM
2. SH. ZIAURREHMAN
3. SH. MUJIBURREHMAN
4. SH. ATIKURREHMAN
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc.
2
All S/o Late Sh. Ehsanullah
R/o 355, Shehzada Bagh,
Delhi-110035. ..........Defendants
Date of filing of the suit : 02-08-2011
Date of reserving the Judgment/Order : 23-08-2016
Date of passing the Judgment/Order : 31-08-2016
SUIT FOR POSSESSION UNDER SECTION 6 OF SPECIFIC
RELIEF ACT AND FOR PERMANENT INJUNCTION.
JUDGMENT
1. The plaintiff has sought restoration of possession u/s 6 of Specific Relief Act, as well as permanent injunction, mainly on the allegation that he was forcefully dispossed from the suit property i.e. against the due process of law, by the defendants.
Plaintiff's version :-
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 3
2. Plaintiff is the absolute owner of the suit property bearing no. A-15/113A, DDA Flats, Inderlok, Delhi-110035, specifically referred in the site plan. Plaintiff purchased the suit property on 13.06.1987 from his mother-in-law Smt. Mehmoodi Begum, against the valid consideration and since then the plaintiff is being in possession and occupation of the suit property.
3. The plaintiff let out the suit property to a tenant, however same was got vacated later on because of his own requirement. The plaintiff has relied on several documents relating to his claim of ownership of the property and also relating to his continuous possession over the suit property.
4. The defendants are described to be the brothers in law of the plaintiff, and since beginning, they were in knowledge of the ownership of th plaintiff qua the suit property. They have CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 4 never even raised any objection to the sale by Smt. Mehmoodi Begum in favour of the plaintiff.
5. However, the defendants became dishonest and devoloped malafide intention and in pursuance of their common intention, on 23.07.2011, when plaintiff, his wife and son, were just putting their belongings in the suit property, the defendants tried to take forcible possession of the suit property, and when the plaintiff and his family members objected to it, the defendants picked up a quarrel and beat up the plaintiff and his wife. The defendants even threatened the family members of plaintiff, that they shall be killed.
6. The plaintiff was compelled to call police. Their complaint was lodged vide DD entry no.33 dated 23.07.2011 at PP Inderlok. The plaintiff also reported the matter to the SHO PS Sarai Rohilla vide a separate complaint on the next day CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 5 i.e. 24.07.2011, which was entered vide DD no.53-B. To the knowledge of the plaintiff, no action was taken by the local police.
7. The plaintiff further goes on the narrate another incident i.e. of 26.07.2011, just three days later, when plaintiff had gone to Tehsil Sanbhal, District Moradabad, UP to see his ailing father, and when he returned on 28.07.2011, two days later, he discovered that in his absence, the defendants had illegally tress-passed into the suit property, by breaking open the locks, and had taken over the possession of the entire suit property in a most illegal and forceful manner. The plaintiff even claimed that some of his valuable belongings had also disappeared from the spot.
8. Upon this discovery, there was naturally a quarrel between the plaintiff and the defendants, in the course of which, the CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 6 defendants again beat up the plaintiff as well his family members, and threatened them to leave immediately or to face dire consequences.
9. The plaintiff again reported the matter to the Incharge of PP Inder Lok vide DD no.17 i.e. on the next day 29.07.2011 and requested assistance from the police to restore his possession over the suit property, but to no avail, as police failed to take any action, as before.
10. As such, the plaintiff has claimed that he has been dispossessed from the suit property at the hands of the defendants in a most illegal and forceful manner against all known process of law.
11. The plaintiff approached the defendants on 31.07.2011 again, and once again requested them to vacate the suit property and to hand over the possession thereof, but the CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 7 defendants threw him out of the suit property, with further threat to part with the possession, further, to some other third party.
12. The present suit came to be filed on 01.08.2011. Defendant's version
13. The defendants in their WS have raised preliminary objection. Firstly, that the plaintiff's claim of ownership qua the suit property is false and baseless. The defendants have claimed that suit as filed, is not maintainable and same is also without any cause of action.
14. Further, on merit, the defendants have gone on to the point of title of the suit property, and contended that, the plaintiff is liable for being prosecuted for fraud and forgery, as the suit property was never sold, transferred or assigned CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 8 to the plaintiff, either by the defendants or by their ancesters, and that the documents relied upon by the plaintiff alleged to have been executed by Smt. Mehmoodi Begum, were never executed by her.
15. The plaintiff is in fact, the brother in law of the defendants i.e. their sister's husband, and being well educated and qualified person, family problems also used to be discussed by the defendants with the plaintiff.
16. As per the defendants, the plaintiff earlier, was having no accommodation to live, while in Delhi and he was not even financially strong, therefore, the mother of the defendants on request and persuasion of sister of the defendants, out of love and affection, allowed the plaintiff to live in the suit property temporarily, and she had also allowed the plaintiff to carry on working at the ground floor of the Plot no.355, CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 9 Shahzada Bagh, Phase-1, Inder Lok, Delhi to earn his livelihood. After some time, mother of the defendants arranged the plaintiff to use a Jhuggi behind Farista Soap factory at Shahzada Bagh, Inder Lok, Delhi, but, however, the plaintiff kept on continuing to use the address of the suit property, with the consent of the defendants, on the pretext to serve it at his address for correspondence purpose only. This went on since the year 1990 onwards.
17. It is further alleged by the defendants that the plaintiff thereafter sold off the Jhuggi and after taking some amount from the defendants and other persons, has purchased the shop no.1 at Shahzada Bagh, Inder Lok, Delhi. The plaintiff, according to the defendants had no concern whatsoever with the suit property, even remotely.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 10
18. The defendants have even alleged that, the plaintiff was guilty of misusing the government authorities for the purpose of creation of documentary proof of the address, as the suit property. As per the defendants, the suit has been filed as a sheer misuse of process of law and deserved to be dismissed.
19. In fact the defendants goes on to allege that on 29.07.2011, the plaintiff and his associates even tried to disposses the defendants but they could not succeed.
20. While the plaintiff on one hand, has claimed himself to be the owner while, on the other hand, one Sh. Abdul Rab is also claiming to have purchased the suit property from the plaintiff.
21. As per the defendants, the plaintiff was not in possession of the suit property as on the date, as alleged by him and CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 11 so, there was no question of having been disposses. Even otherwise, the plaintiff has no concern with the suit property in sofaras the defendants are concerned.
22. The plaintiff in turn has filed his replication to deny the version of the defendants and he reiterated his own version as correct.
23. On the basis of pleadings, following issues were framed by Ld. Predecessor vide proceedings dated 18.11.2011. Issues:-
1. Whether the documents executed by Mehmoodi Begum in favour of plaintiff with regard to the property bearing no.A-15/113A, DDA Flats, Inderlok, Delhi-110035, are forged and manufactured?OPD.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 12
2. Whether the suit is not properly valued for the purpose of court fees?OPD.
3. Whether the plaintiff is entitled for relief of possession under section 6 of Specific Relief Act of property bearing no.A-15/113A, DDA Flats, Inderlok, Delhi-110035, as prayed?OPP.
4. Whether the plaintiff is entitled for relief of injunction as prayed for?OPP.
5. Relief.
24. During evidence, plaintiff examined himself as PW-1 on his affidavit Ex.PW1/A. Besides, he tendered as many as 50 documents and which was exhibited as Ex.PW1/1 onwards till Ex.PW1/50, most of which related to his proof of residence at the address of the suit property. CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 13
25. The plaintiff also examined Mohd. Zubair as PW2 on his affidavit Ex.PW2/A. He was a cousin brother of the plaintiff and this witness said sought to rely upon his own election ID card, towards his own identity as Ex.PW2/1.
26. Mr. Haji Abdul Haq was examined as PW-3 on his affidavit Ex.PW3/A and relied upon his election ID card proof as Ex.PW3/1.
27. PW-4 Sh. L.K. Bhatia, Dealing Assistant, L&L Branch, office of Delhi Urban Shelter Improvement Board, Vikas Kutir, ITO, Delhi, was examined as PW-4. He has proved the record relating to the mutation of suit property and he proved the document Ex.PW4/1 onwards till Ex.PW4/18.
28. Defendant no.3 namely Mujeeb-Ur-Rehman was examined as DW-1 on his affidavit Ex.DW1/A and he relied on documents Ex.DW1/1 till Ex. DW1/8.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 14
29. Defendant no.2 Hafiz Mohd. Rafique examined as DW-2 on his affidavit Ex.DW2/A.
30. Affidavit on one Mohd. Saleem was filed but the said witness was given up.
31. DW-4 Mr. Syed Faisal Huda, Handwriting Expert, proved his report, which was exhibited as Ex.DW4/A.
32. Final arguments were addressed. Heard it at length.
33. I proceed to give my issue-wise findings on the basis of material on record, in the light of the arguments, so addressed.
Issue no.1 :- Whether the documents executed by Mehmoodi Begum in favour of plaintiff with regard to the property bearing no.A-15/113A, DDA Flats, Inderlok, Delhi-110035, are forged and manufactured?OPD.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 15
34. It was the stand taken by the defendants, that the documents executed by Smt. Mehmoodi Begum in favour of the plaintiff were forged and fabricated documents and accordingly, it was squarely, the onus of the defendants to have established the same, but the defendants miserably failed to discharge their onus on this aspect, either by their own direct evidence, or even indirectly by testimonies of the witnesses.
35. The defendant no.3, Mujiburrehman has examined himself as DW-1 on behalf of all the defendants and in his affidavit Ex.DW1/A, apart from reiterating the averments in the WS, he has specifically claimed that he, as well as, the other defendants along with their mother, had been residing in the suit property and Smt. Mehmoodi Begum was even having a ration card dated 16.07.1997, wherein the name of all the CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 16 family members had been mentioned and same has been relied upon as Ex.DW1/1, in the affidavit.
36. Besides defendant no.1, also states that on 28.06.2011, all the three defendants had executed a Relinquishment Deed, in favour of DW-1 with respect to the suit property, which was duly registered at the office of Sub Registrar, Kashmeri Gate, Delhi and which has been referred and relied upon as Ex.DW1/2.
37. DW-1 has reiterated the stand, that in the year 1987, the mother of the defendants, now deceased, had only allowed the plaintiff and his wife temporarily to stay in the suit property, as they were not having any other accommodation or other residence, and being son-in-law of the said Smt. Mehmoodi Begum, she had given this temporary permission.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 17
38. It is further stated by DW-1 on affidavit, that their deceased mother had got vacated the suit property from the plaintiff, and in fact the plaintiff had started residing at Jhuggi behind Farishta Shop, and thereafter at Flat / Shop no.1, and 27, DDA Cooler Market, Inderlok, Delhi. As per DW-1, on 15.05.2011. The plaintiff had shown photocopies of some documents in respect of the suit property to the said witness by which it was claimed that Smt. Mehmoodi Begum had purportedly transferred the suit property in his name, but as per DW1, those documents are stated to be manipulated, forged and frivolous documents, i.e. SPA, GPA, Agreement to Sell, receipt, Will Affidavit etc. DW1 further stated that his mother was a Pardanashin lady, and she never used to go out of the house with any other person except DW1 and the other defendants.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 18
39. In fact, DW-1 further goes on to state that on 23.07.2011 itself, i.e. three days before incident alleged by the plaintiff, it is the plaintiff, who came to the suit property along with anti social elements and tried to forcibly dispossess the DW1 from the suit property, illegally and forcibly, without due process of law and further that DW1 made various calls to the PCR at 100 number. The PCR officials came to the spot and after showing documents of suit property, PCR officials had restrained the plaintiff and his associates form dispossessing DW1 from the suit property.
40. DW1 also claim to have lodged a written complaint to the SHO PS Sarai Rohilla in this respect and he has referred and relied upon documents mentioned as Ex.DW1/3 and 4, in this respect.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 19
41. DW1 has repeatedly stated throughout his affidavit that it is the plaintiff who still trying to dispossess the defendant from the suit property illegally and forcefully.
42. As regards the intervening night of the incident dated 26/27.07.2011, it is the plaintiff alongwith 10/12 bad elements, who entered the suit property and started beating up DW1 and his wife mercilessly, and that local police had to be called in, and they had taken the entire family members of DW1 to Bara Hindu Rao. Refererence is had to two MLCs in this regard vide para-13 of the affidavit. However, they have not been tendered in the evidence of the witness, for the reasons best known to him.
43. DW1 has further stated in para-17 of the affidavit that plaintiff being relative of DW1, had managed to obtain all documents such as bank passbook, election ID card of his CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 20 children, birth ceritifcate, passport etct at the address of the given property, whreeas he had actually not been residing there on the date of the alleged incident.
44. In para-18, the witness goes on to further state taht the claim of the plaintiff regarding the documents executed by the mother of the defendants, is absolutely false and based on false documents and he goes to the extent to state on oath, that the plaintiff tried to get the suit proeprty mutated in his own name in the records of the DDA but he could not succeed.
45. However, this statement of DW1 has stood falsified, specifically by the entire record produced through PW4, a public witness. PW4 also withstood the cross examination well, in as much as, the defendant was not able to rebutt his testimony or to create any doubt regading the validity of the CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 21 document, which was even otherwise, a public record. Reference shall be made thereto at a later stage.
46. For the time being, as far as the present issue is concerned, the entire onus was upon the defendants to have established that the document executed by Smt. Mehmoodi Begum as relied upon by the plaintiff, were forged and fabricated.
47. However, during cross examination, the truth of this witness i.e. DW1 has come out, in as much as through and through, he has failed to meet the intensive cross examination conducted on behalf of the plaintiff, on the most material aspects.
48. DW-1 has himself not been able to state during his cross examination that he was residing at the suit property. All that he has relied upon is a statement that his family used to CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 22 reside in two accommodations, the one under dispute i.e. the suit property and another bearing no.355, Phase-1, Shahzada Bagh.
49. DW1, however, admitted that the address of his mother Smt. Mehmoodi Begum, on the death certificate happens to be written as 355, Phase-1, Shahzada Bagh and not as the address of the suit property.
50. Furthermore, as rightly pointed out by Ld. Counsel of the plaintiff during the course of arguments, this witness, on one hand, has replied, that he was using the address of the suit property for the purpose of furnishing the address, while in the same breath, he also states that his family members were using the address of 355, Phase-1, Shehzada Bagh for the purpose of furnishing the address.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 23
51. DW1 has replied that he is the only person, who is using the address of the suit property since August, 2011 and that no other family members had been using the said address.
52. There has been no viable explanation forthcoming from the witness. It is not normal and natural for a family, if they are staying together, for the different members to furnish different address for different purpose to different authorities.
53. DW1 further even admitted that, the plaintiff had completed all the formalities regarding the change of allotment in the name of late Smt. Mehmoodi Begum, after the death of Ahsan Ullah. However, as against this, this witness claimed even during cross examination, that he did not know about any proceedings regarding the change of name of the owner in DDA from Ahsan Ullah, to Mehmoodi Begum. CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 24
54. Ld. Counsel of the plaintiff has conducted a probing cross examination on each and every aspect, whereby, it can be established, whether a person is or is not residing in an ordinary manner and permanently, at any given address.
55. Suggestion was even put to the witness regarding the cable connection as to in whose name, it was. Normally a person staying at a place would be using all basic facilities like electricity, water, cable connection etc. at the given place for his day to day living.
56. However, on this aspect, the reply of the DW1 was quite erroneous when he replied that, though admittedly there was a cable connection on the suit property, but it was not in the name of anybody. This in itself, is quite self speaking as being not even possible.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 25
57. The witness further admitted that, though they were having a ration card in the name of their mother after 1991, they had admittedly not obtained any ration card of the address of the suit property after the year 2007.
58. The reply of the witness that, there had been no correspondence of the defendants with the DDA regarding the suit property, eversince 1997 uptill April, 2011, by itself, does not meet the eye. It is not possible that in the normal course, the LRs of deceased would not try to find out and clear the status of the property, if they were actually claiming to be the owners thereof.
59. Their silence would imply that they were not having any concern with the suit property whatsoever. The correspondence, relied upon by the DW1 pertains only to the month of May and June, 2011. DW1 admittedly had CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 26 never taken any steps for mutation of the property in the name of LRs of Smt. Mehmoodi Begum ever since after the year 2007.
60. In the later part of his cross examination, it is further seen as quite surprising, that a person claiming to have been staying in the suit property, eversince the year 1979 and till date, he is not in a position to answer, and he expresses complete lack of knowledge, regarding the surveyer's report having been conducted by the election office in their area at any point of time.
61. Similar suggestion was put regarding the survey, similarly conducted by election office in the year 1995 to which also the witness expresses lack of awareness. As per the said survey, copy of which at that stage was Mark B, is CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 27 stated to have been published, in which the name of the plaintiff and his family members have been mentioned.
62. DW1 further admitted that, it is the plaintiff who had been depositing the electricity and water charges with the concerned departments upto the year 2011, though the witness volunteered and tried to cover up, by stating that the payment was made by his mother and after her death, by her son. But DW1 could not produce a single document to substantiate this claim, which could have destroyed the effect of the admission, already made by him.
63. The witness later on clearly admitted that he was not in possesion of any original bills of electricity or water before July 2011. He further admitted that all original bills of electricity and water qua the suit property were in the possession of the plaintiff.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 28
64. Nothing more remained for this witness to admit on the aspect of possession. He even admitted that electricity connection was in the name of the plaintiff uptill the year 2011. The witness has even himself volunteered that as per his memory went, the connection was installed in the name of the plaintiff in 2008 and he claimed that he came to know about the electricity connection being in the name of the plaintiff only in the year 2011, itself.
65. DW1 did not even know, as to in whose possession, the possession slip of the suit property was. He further replied 'it is correct that the possession slip was the only document of ownership which had been issued by the DDA to the allottee, and he even admitted that, the said possession slip in respect of the suit property was, in possession of the plaintiff.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 29
66. DW1 further admitted that, he had never issued any notice of demand to the plaintiff, demanding the possession slip at any point of time. This again, is not a conduct in consonance with the claim being raised by the defendant that in fact, they were the rightful owners and that the documents executed by Smt. Mehmoodi Begum, in favour of the plaintiff were forged and fabricated. In the given situation, if the stand of the defendant is taken to be correct, it would not have been natural for him to sit over the matter and not to have demanded for the possession letter to be handed over by the plaintiff.
67. By the admissions coming from DW1, it is even more material when he admits 'it is correct that there are no documents, either in his own name or in the name of his brother ever since 1987 right uptill July 2011. He himself CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 30 volunteered that they have been using the address 355, Shahzada Bagh and not the address of the suit property.
68. The reason has not been explained and the witness is silent on this strange kind of discussion. Had they been residing in the suit property, the defendants would not have hesitated to have been using the address of the suit property, particularly, when they could have been knowing, that there were some kind of disputes brewing in the year qua the suit property.
69. Admittedly, there has not been a single document in the name of the defendants, be it a telephone connection, it be a cable connection, even dish connection etc., which could have even remotely shown that the defendants had been in actual occupation of the suit property at any point of time during the relevant period.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 31
70. The witness was shown document Ex.DW1/7 which he admitted during cross examination, as being the document issued by DDA in favour of the father of the defendants and he even admitted it to be correct that the original of the said document was in possession of the plaintiff.
71. Surprisingly and admittedly, DW1 never made any complaint to any authority whatsoever, against the plaintiff for his using the address of the suit property, even though, he was not residing in the suit property, as per the allegations of the defendants.
72. DW1 has even specifically admitted that, this position had been very well in his knowledge, but DW1 has still not furnished any explanation in over the matter, except to state that the plaintiff was his relative.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 32
73. In the normal course of conduct, even if one happens to be a relative of a person, but once a person be it a relative, is trying to misuse his relations and trying to occupy a property or to create his rights over a property, the said person would not remain silent or would not simply ignore the issue, and sit over the matter.
74. In the present case, neither the defendants seemed to have bothered to start any kind of proceedings or complaint, nor they seemed to have appeared before any authority to secure their interests or to have got the property mutated in their own name.
75. DW1 was further shown a death certificate of their mother, which he admitted to be a correct document, and he has further admitted it to be showing the correct address CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 33 thereon and that she used to live at the said address i.e. of Shahzada Bagh, and not of the suit property.
76. The witness has admitted that he never deposited the house tax of the suit property after July 2011 nor deposited before July 2011.
77. The witness has further admitted that though, he has moved an application before DDA requesting that the property may not be transferred in the name of the plaintiff, sometime in June or July, 2007, but the witness has admittedly been indifferent to the fate of the said application, in as much as he does not seem to have pursued the application thereafter at any point of time, as is clear from his entire testimony.
78. What is even more surprising, is that DW1 was admittedly not having any title document of the suit property with him CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 34 and much to his knowledge, the said title documents were in the possession of the plaintiff and the witness himself has stated that the title documents have been kept with the plaintiff by his mother.
79. DW1 admittedly, never ever called for production of this document from the possession of the plaintiff. Further, the witness was not even in a position to reply as to whether in the DDA's record, his name was, or was not mentioned, as the owner/allottee or otherwise.
80. The witness further admitted that he was not knowing as to when the eldest son of the plaintiff got married, but he has claimed that he has not attended the same, and also for the last about 15 years, the relations with the plaintiff were not cordial.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 35
81. In the face of this reply, it did not stand to reason that, the defendant never asked the plaintiff to give the documents of the suit property, in as much as, the witness has thereafter specifically admitted that since the the relations had become strained with the plaintiff, though, he had been aware of the fact, that the title document of the suit property were still with the plaintiff, but he admittedly never asked the plaintiff to give them to the defendants.
82. Ld. Counsel of the plaintiff has further intensified the cross examination from the aspect of conducting of any function or ceremony by the defendant ever at the suit property, if they had actually been staying there and on this aspect also, must unfortunately, DW1 has admitted it that they did not organise any sort of function or ceremony during the entire long time span right from 1991 onwards till 2011. CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 36
83. DW1 was not even able to produce any kind of bills regarding repair or whitewash of the suit property.
84. When a person is living in a property, there are several incidental events which keep taking place like payment of electricity, water, telephone bills etc. He incurs various bills qua the cable bill etc. also, and if a person is in occupation of a property for a considerable length of time, there could not be one or two, but hundres of documents, reflecting his stay at the suit property, and it is not even believable that, such person claiming to be having a residence for a length of period of time, would not be in possession of even a single document of any kind to connect him to the possession of the property.
85. As regards the survey conducted by the election department also, DW1 has specifically admitted the same to CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 37 have been conducted in the area for the purpose of preparing a voter list. He even admitted that the voter ID of the plaintiff and his family members were got prepared at the address of the suit property way back in the year 1995.
86. The witness admittedly never moved any application before any government authority regarding cancellation of the voter ID card or passport of the plaintiff and his family members.
87. The explanation that the plaintiff being his brother in law, and the defendants not having objected to his getting the documents prepared at the address of the suit property, is not convincing at all, and rather, it is not even inagurable, that when the terms between the parties were not even cordial, and going to the extent that they were even calling the police on many occasions, where was the question left for any grace as is being claimed by DW1.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 38
88. The relations between the parties were not cordial for the last about 15 years and therefore the explanation has not any relevance.
89. In fact, it is incredible for the defendants to have simply gone on watching that their brother in law, going on getting documents prepared at the address of the suit property, one after another, major documents like gas connection, passport and for defendants to have maintained silence throughout. This would not have been natural even if the relations had been cordial and normal, but with the relations not being cordial, the defendants would have raised a hue and cry, had they been genuinely aggrieved. Their silence and the acqueasing conduct of the defendants throughout, all these years, only reflects that they were very well aware, that it is their mother, who had herself given the property to CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 39 the plaintiff, by way of execution of the documents in question.
90. Furthermore, the kind of replies given by DW1 regarding the records before the DDA, would make it ample clear, that not only the defendants could not succeed in establishing by way of any evidence on their part, that the documents executed by the mother of the defendants in favour of the plaintiff, were forged and fabricated, but the defendants had even failed simply to meet the cross examination even and in fact indirectly they admittedly affirmed the case of the plaintiff.
91. As regards the report of the forensic expert Mr. Syed Faisal Huda, who is examined as DW4, he has proved his report as DW4/A running into four pages, and which pertains to the property documents in question.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 40
92. But this witness failed to meet cross examination, in as much as, when faced with cross examination, the said handwriting expert has admitted that it was correct, that the report prepared by him was only on the basis of photocopy documents, and that he had never even seen the originals of the documents in question in the report Ex.DW4/A.
93. He even admitted that he has not even taken the photograph of the docuemnts from the court file. He has not sought any permission for the purpose of preparing his report.
94. In view of this reply, it hardly needs any further discussion, as to what evidentiary value of the such like opinion of an expert, whose report was prepared without having seen and compared the disputed hand writing or signatures from the originals.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 41
95. The comparision on the basis of photocopies cannot be called any kind of comparision, having any evidential value whatsoever, this apart frofm the conduct that this forensic expert, has been brought by the defendants only and examined as DW4.
96. The witness even admitted that with the passage of time, the the ridges and the patterns and the loops in thumb impression would go on getting more and more faded by each photocopy. This answer by the witness itself makes it quite clear that there was no evidentiary value which would be atached to this so called report.
97. Towards the end, the witness was put a question, in respect to which after much wavering and hesitating, the witness replied that effective and reliable opinion can be given about the thumb impression on the basis of a photocopy also, CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 42 without even seeing the originals, provided the photocopy is clear.
98. However, apart from the deficiency of the witness itself, by whom the alleged comparison seem to have been carried out to draw the alleged conclusion, DW4 hsa further replied that at the time of handing over of documents to him, he was not told to as to which one of the two S1 and S2 was the undisputed thumb impression of the person concerned. The handwriting expert did not even know which was the undisputed thumb impression out of S1 and S2. In view of this, it is not understable as to how the handwriting expert even ventured to conduct some kind of 'comparison' and to even draw same conclusion and to prepare a 'report'.
99. For compasion of the disputed signatures or thumb impression, or for that matter, be it the disputed voice or any CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 43 other kind of identification, same would always have to be compared with the undisputed /admitted signatures/thumb impressions and voice sample etc of the concerned party. Unless and until, there is any such undisputed and admitted signature or sample whatsoever, the concept of comparison wold not even apply and the comparison cannot even be conducted. As such, the very basis of the report in the present case happeneded to be missing, in view of the own admission of DW4 during cross examination.
100. Thus, the defendant has miserably failed to prove by way of leading any evidence directly or even indirectly, qua the documents executed by their mother in favour of the plaintiff w.r.t. the suit property being forged and fabricated. Accordingly, issue no.1 is decided against the defendants and in favour of the plaintniff.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 44 Issue No.2: Whether the suit is not properly valued for the purpose of court fees?OPD
101. Defendant in para 10 of his Preliminary Objections has contended, that the value of the suit has been wrongly assessed by the plaintiff at Rs.4 lacs, while infact the suit property at the relevant time was worth more than Rs.16 lacs. Based on this objection, the said Issue regarding under valuation of the suit property was framed by Ld. Presiding Officer casting onus upon defendants to establish his objection.
102. Defendants, however, not led any kind of evidence relating to Issue of valuation to substantiate their objection, and to establish that value of the suit property was about Rs.16 lacs. DW1 has not even uttered a single word in his affidavit regarding value of the suit property, far from having led any documentary evidence. CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 45 Objection evidently was raised only for the sake of the objection, and is a frivolous one. Valuation as assessed by the plaintiff has to be accepted in the absence of any other material brought on record.
Issue No.2 is accordingly decided against the defendants. Issue No.3:Whether the plaintiff is entitled for relief of possession under section 6 of the Specific Relief Act of property bearing no.A15/113A, DDA Flats, Inderlok, Delhi110035, as prayed?OPP
103. Towards their long period of possession, the plaintiff has examined several witnesses, and also produced, not one, not two, but a voluminous record of documents, which altogether reflects his long period of residence at the suit property.
104. First witness examined was the plaintiff himself on his CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 46 affidavit Ex.PW1/A, and apart from supporting the averments in the statement made on affidavit, witness also relied upon several other documents, and the same are now being referred hereunder: Ex.PW1/7 is the possession slip, Ex.PW1/8 is the application dated 31.01.2000, Ex.PW1/9 is the copy of reply letter dated 06.10.2000, Ex.PW1/11 is the copy of birth certificate of Saif Iqbal, Ex.PW1/13 is the photocopy of voter card of plaintiff, Ex.PW1/14 is the photocopy of voter card of Shakeel Begum, Ex.PW1/15 is the photocopy of voter card of Arif Iqbal Ansari, Ex.PW1/16 is the photocopy of voter card of Mohd. Kashif Iqbal, Ex.PW1/17 is the photocopy of D/L of plaintiff, Ex.PW1/18 is the photocopy of D/L of Arif Iqbal, CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 47 Ex.PW1/19 is the photocopy of passport of plaintiff, Ex.PW1/20 is the photocopy of Shakeel Begum, Ex.PW1/21 is the photocopy of passport of Asif Iqbal, Ex.PW1/22 is the photocopy of ration card, Ex.PW1/25 is the photocopy of passbook of SBI of Mohd Iqbal, Ex.PW1/26 is the photocopy of passbook of PNB of Shakeela Begum, Ex.PW1/28 is the photocopy of passbook of PNB of Saif Ansari, Ex.PW1/29 is the copy of statement of account no.13761000000796 of Arif Iqbal, Ex.PW1/30 is the photocopy of OBC certificate of Asif Iqbal, Ex.PW1/31 is the photocopy of OBC certificate of Saba Iqbal, Ex.PW1/32 is the photocopy of OBC certificate of Ayesha Iqbal, Ex.PW1/33 is the photocopy of OBC certificate of Yousul Iqbal, CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 48 Ex.PW1/34 is the photocopy of OBC certificate of Ausuf Iqbal, Ex.PW1/35 is the copy of letter dated 28.07.2011, Ex.PW1/36 is the copy of marriage certificate dated 11.11.2006, Ex.PW1/37 is the original death certificate of Mehmoodi Begum dated 06.11.2007, Ex.PW1/38 is the copy of identity card of Mohd Saif Iqbal, Ex.PW1/39 is the copy of ID card of Saba Iqbal, Ex.PW1/40 are the copies of complaint dated 08.01.2005 & 24.07.2011, Ex.PW1/41 is the copy of complaint dated 29.07.2011 to SHO, PP Inder Lok, Ex.PW1/42 is the copy of complaint dated29.07.2011 to DCP, Ex.PW1/43 is the copy of FIR No.291/2011, Ex.PW1/44 is the copy of final report of FIR No.291/2011, CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 49 Ex.PW1/45 is site plan, Ex.PW1/48 is the copy of electricity bills, However, following documents as tendered in evidence of PW1 were deexhibited: Ex.PW1/23 is the copy of letter dated 26.11.1995 alongwith its envelop mentioned in affidavit, Ex.PW1/24 are the photocopies of the three gas receipts mentioned in affidavit, Ex.PW1/27 is the photocopy of passbook of PNB of Asif Iqbal mentioned in affidavit, Ex.PW1/46 is the copy of demand notice issued by NDPL mentioned in affidavit, Ex.PW1/47 is the photocopy of Protocol sheet dated 08.02.2008, CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 50 Ex.PW1/49 is the copy of rent receipts counter, Ex.PW1/50 is the copy of receipt no.12350,
105. During the course of arguments as well, Ld counsel for the plaintiff has clarified, upon a court query, that the claim of the plaintiff has been based only u/s 6 of the Specific Relief Act i.e. on the basis of possession, and not on any other ground, therefore, documents, would be relevant only for the purpose of ascertaining the settled possession of the plaintiff qua the suit property till the date alleged by him.
106. As regards claim of being in actual possession of suit property, first document which throws light on the issue are Ex.PW1/1 onwards till Ex.PW1/7; all relating to title, and the fact that they were in possession of the plaintiff, itself was self speaking so as to CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 51 show that the possession of the plaintiff was based on the consent of mother of the parties.
107. Ex.PW1/9 is the letter issued from MCD addressing the plaintiff, specifically at the address of the suit property. Copy of the envelope enclosed with this exhibit also bears the same address.
108. Ex.PW1/11 and Ex.PW1/12 are birth certificates issued from the concerned government department relating to children of the plaintiff, and showing their birth having taken place, while at the address of the suit property.
109. Admittedly documents in evidence on behalf of plaintiff, right from Ex.PW1/13 onwards till Ex.PW1/20 including the voter identity cards as well as passports, are all reflecting address of the suit property, besides there are bank passbooks Ex.PW1/26 and CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 52 innumerable documents containing the address of the plaintiff and his children, and other family members as at the suit property.
110. Had it been the case of only a few documents, it would have been a different matter. Here is a case where there are innumerable documents, and in a normal routine life, which the plaintiff seemed to be having, for years and years, besides electricity bills.
111. During the course of cross examination, Ld counsel for the defendant has confronted PW1 with a copy of Kallandra u/s 107/151 CrPC, which came to be filed on the basis of a quarrel, which took place between the parties, in order to show that the plaintiff was very well present at the spot on the date of incident i.e. intervening night of 26th and 27th July, 2011 as against the plaintiff who as per averments, he was out of town, and it was CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 53 only upon his return, that he discovered that the locks were broken, and the possession had been taken over by the defendants forcefully.
112. Ld. counsel for the defendants during the course of arguments contended that the Kallandra would show that the plaintiff was present at the spot, when the police came; it would be self contradictory to his stand, that he was out of town at the relevant time of the alleged incident.
113. However, upon perusal of the proceedings, recorded by the police, it nowhere shows at all, that the plaintiff was himself present at the relevant time. Even name of the plaintiff does not occur in this proceeding Ex.PW1/DX.
114. Document Ex.PW1/DX is dated 14.08.2011 which is a date much after the alleged incident, which is stated to have occurred CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 54 in the intervening night of 26th and 27th July, 2011, and therefore, this document is of no help to the defendants to establish that the plaintiff had been present at the suit property on the said intervening night of 26th and 27th July, 2011. Proceedings Ex.PW1/DX was only an order as was passed u/s 107/151 CrPC, directing all respondents therein to show cause as to why they should not be ordered to execute Personal Bond as specified, and no more. Further the matter before Executive Magistrate concerned was adjourned for appearance of parties on 29.08.2011.
115. This document nowhere speaks about presence of the plaintiff at the spot at the suit property on the said night. Even otherwise, as per averments of the plaintiff, he had returned to town on 28 th July, 2011 and discovered broken open locks, and the possession having been snatched by the defendant, and it is the plaintiff who CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 55 called the police on 29.07.2011.
116. Ld. counsel for the defendants tried to rely upon these proceedings vehemently in order to show that the plaintiff was very much present, when the quarrel took place, as per the proceedings of the Kalandra u/s 107/151 CrPC. However, he was not able to point out any such proceedings, which could show his presence, and to demolish the case of the plaintiff.
117. Even during the cross examination, inspite of lengthy cross examination, and sufficient opportunities, the defendant has not been able to create any dent in the testimony of the plaintiff/PW1, in as much as, he has not been able to point out to any kind of self contradictions in replies given by PW1 who has withstood test of the cross examination, and in totality, his testimony has inspired confidence, particularly when it is viewed along with voluminous CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 56 documents on record of his documents.
118. If PW1 admitted that he had not exercised his voting right from his residence, same cannot be of any help for the defendants, since there are many people who have voter cards, but do not exercise voting right, and it cannot go to indicate by any stretch of imagination, that just because a person does not exercise his voting right, he cannot be held to be residing at the address.
119. PW1 has further explained that he was not able to produce any evidence in support of his departure to Sambhal, for the reasons that he had gone by his own vehicle, and it is obvious that PW1 when he left for out of town to lookafter his ailing father, would not have anticipated the event, which he had discovered upon his return. Therefore, failure to produce any evidence of departure to Sambhal was not material.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 57
120. It was for the defendants to establish that the plaintiff was present on the day and time of the incident at the spot, when he was claiming to be out at Sambhal. On their part, the defendant did not take any such steps.
Kallandra, which was running into 17 pages Ex.PW1/DX has failed to establish at all, that the plaintiff was present at the relevant date and time, as against his claim that he was at Sambhal.
121. PW2 Mohd. Zubair is stated to be a cousin brother of the plaintiff, and known to him since birth. He has mainly deposed about documents of transfer, executed by Mahmuddi Begum in favour of the plaintiff, and as already observed, fate of a suit u/s 6 of the Specific Relief Act would not be affected with the title documents of any party, and that the court has to determine as to whether possession was with the plaintiff and whether the CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 58 possession was disturbed by defendant in a wrongful manner; beyond this, there would be no question required to determine on this aspect. Testimony of this witness as such, is not being considered on this limited question as being not relevant.
122. It is PW3 Sh. Haji Abdul Haq who has mainly deposed on affidavit, on the aspect, of illegal dispossession of the plaintiff from the suit property. Said witness is stated to be a neighbour of the plaintiff, and known to the plaintiff since 1987. He has stated mainly that he himself was residing with his family at the address as furnished by him at Shahzada Bagh PhaseI, Delhi since 1997, and he is also having voter court to that effect, which he produced as Ex.PW3/1 (original seen and returned).
123. Witness has deposed that Mohd. Iqbal Ansari had purchased the property from his mother in law Mahmudi Begum in the year CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 59 1987, and that he was in possession of the same ever since 1987. In 2009, part of property was let out to one Sh. Shakeel Ahmed who on 23.07.2011 vacated the said property, and handed over the keys to plaintiff.
124. This witness goes on to state that on 26.07.2011, the plaintiff had locked his premises and left along with his family for his village at Uttar Pradesh to see his ailing father. In the intervening night of 26th and 27th July, 2011 i.e. around 12 mid night, witness heard certain sound coming from the house of Iqbal Ansari. Witness went there to find out the reason of noise and saw that defendants were present outside the property, and they were in the process of breaking open the lock of the house. Witness tried to stop them, but defendants got adamant, and succeeded in breaking open the lock, and ultimately trespassed into the house of the CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 60 plaintiff in the presence of this witness.
125. This witness further goes on to state that the defendants even illegally removed certain goods of the plaintiff from his house. This witness also produced his voter card to prove his own identity and residence.
126. During cross examination, witness has replied that he was at the house of his relative near the suit property, and when he was returning from there, he heard the noises, above referred. Witness reiterated in the cross examination also, that he tried to prevent defendants from breaking open the lock, but he could not succeed, and as a result, defendants went ahead, and achieved their object, and trespassed into the suit property.
127. PW3 further replied during cross examination that he was shocked to see that immediately PCR reached there and at that CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 61 time, the plaintiff was at his native village. Police implicated this witness, and his family members in a police case, but he was not arrested.
128. Witness has explained that he did not mention all this in his affidavit as he did not see any need to do so, and it is only in the cross examination that in response to question put by defence Ld. counsel, that he was telling all this.
129. As on the date of the cross examination of this witness, he has further stated that presently, he is neither neighbour of the plaintiff nor he is friend nor there is any other relation. However, witness clarified that since the year 1976, he had been residing at Inderlok, Delhi, and resided there upto 1997. He was neighbour so he knew that property had been allotted to Mehmudi Begum, and this fact is undisputed even by the defendant.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 62
130. As regards implication of PW3 by the police, witness has further replied, during cross examination, that he had availed remedy regarding this false implication by the police, and he appeared before Court of Special Executive Magistrate, and thereafter in Sessions Court, and there matter ended. In so far as statement of this witness relating to sale of the property to plaintiff by Mehmudi Begum, the same is only hearsay evidence. This witness is neither witness to the sale by his own words, and therefore, this part of his testimony is to be ignored.
131. Though no doubt, question of title document would not be relevant for a suit for restoration of possession u/s 6 of the Relief Act, still it can be said that the testimony of PW4, a government official, who produced record from Land and Building Department, Delhi Urban Shelter Improvement Board, lends a lot CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 63 of credence to the entire case of the plaintiff, taken as whole, and to make a continuity of the events, and also added strength to the source of his possession.
132. Though his right over the property, on the basis of title, cannot be determined in the present suit, as per his own claim, the testimony of PW1 goes on long way to show that the plaintiff had been very well residing and occupying the suit property for a very long time, and Mahmuddi Begum had transferred the property in question in favour of the plaintiff.
133. Not only property was mutated in the name of the plaintiff, but throughout this period for so many decades, defendants never opposed the moving of application by plaintiff before the concerned authorities for the purpose of transfer of the property. Possession slip and other such documents, issued by the CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 64 concerned authority were lying in the possession of the plaintiff, and without any protest from the defendants, at any point of time.
134. Defendants, on the other hand, through Ld counsel, have not been able to create even a shadow of doubt on the testimony of any witness of the plaintiff, and particularly witnesses i.e. plaintiff himself and PW3 at all.
135. Taken in totality, their testimonies are inspiring confidence, particularly in view of the supporting documents, discussed above in detail. It is quite clear that the plaintiff was in continuous possession of the suit property right up till intervening night of 26th and 27th July, 2011, on which night, the defendants forcefully and in a most illegal manner broke open the lock, trespassed into the suit property, threw away the belongings of the plaintiff, and grabbed the possession thereof most highhandedly. CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 65
136. During the course of arguments, Ld counsel for the defendants relied upon judgment of Hon'ble Supreme Court in the case of Sait Tarajee Khimchand and others vs. Yelamarti Satyam Alias Satteyya and others (1972) 4 SCC 562, contending that mere exhibiting of documents cannot be said to have proved the same.
137. In the present case the situation has not been as if the plaintiff has not proved the documents. The originals of the documents have been produced.
138. Even documents are mostly from the government authorities regarding which presumption is raised u/s 70 of the Indian Evidence Act. Said presumption is open to rebuttal, but defendants have not brought any evidence, which can rebut the presumption and demolish the authenticity of documents of plaintiff. CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 66
139. Section 6 of the Specific Relief Act provides as under:
6.Suit by person dispossessed of immovable property. (1) If any person is dispossesed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recovery possession thereof, notwithstanding any other title that may be set up in such suit.
(2)No suit under this section shall be brought
(a)after the expiry of six months from the date of dispossession; or
(b)against th Government.
(3)No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4)Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
Scope and object.The object of section is to discourage people from taking law into their own hands, however good their title may be: M.C. Batra v. Lakshmi Insurance Co. Ltd, AIR 1956 All.709; Abdul Rahiman v. Nalakath Muhammed Haji AIR 1997 Ker.23.
"DispossessedMeaning of.The word "dispossessed" has not been used in the narrowly constricted sense of actual physical possession of immovable property; it would include within its sweep actual physical dispossession as CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 67 well as violation of other forms of possession including symbolical possession duly delivered by law and contumaciously violated by an aggressive trespasser; Kumar Kalyan Prasad v. Kulanand Vaidik AIR 1985 Pat.374; Jayagopal Mundra v. Gulab Chand Agarwalla AIR 1974 Ori.173 (FB); Juggobundhu Mukherje v. Ram Chunder Bysack ILR (1880) 5 Cal.684; Sri Radha Krishan Chanderjee v. Ram Bahadur AIR 1917 PC 197; Maharaja Pratan Udai Nath v. Sahi Sunderbans Koer AIR 1923 Pat.76.
Limitation.The Specific Relief Act, 1963 is a special law within the meaning of that expression used in S.29(2) of the Limitation Act, 1963 in as much as S.6 thereof prescribes its own period of limitation for suits to be filed thereunder. Secondly, there is nothing in that Act which expressly excludes the applicability of S.4 of the Limitation Act, 1963. Therefore, S.4 read with S.29(2) of the Limitation Act, 1963 applies to a suit under S.6: Bai Dahi v. Amulakhbhai Gambhirbhai Barot AIR 1974 Guj.106.
Revision. A suit under S.6 of the Specific Act is often called a summary suit inasmuch as the enquiry in the suit under S.6 is confined to finding out the possession and dispossession within a period of six months preceding the date of the institution of the suit ignoring the question of title: Sanjay Kumar Pandey vs. Gulbahar Sheikh AIR 2004 SC 3354: (2004) 4 SCC 664.
CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 68 A person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. When the facts disclose no title in either party, possession alone decides. "Possessio contra omnes valet praeter eur cui ius sit possessionis (he that hath possession hath right against all but him that hath the very right)". In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. When the defendant fails in proving his title to the suit land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the averment of previous possession of the plaintiff and dispossession by the defendant. The "settled possession" must be (I) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase "settled possession" does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Supreme Court in Puran Singh v. State of Punjab (1975) 4 SCC 518 laid down the following tests which may be adopted as a CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 69 working rule for determining the attributes of "settled possession" (i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; (ii)That the possession must be to the knowledge (either expressed or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
(iii)the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and (iv)that one of the usual test to determine the quality of settled possession, in the case of cultivable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession:
Rame Gowda vs. Varadappa Naidu (2004) 1 SCC 769.
140. For the purpose of succeeding in a suit Section 6 of the Specific Relief Act, all that one has to establish, is that on the day of the alleged dispossession by illegal means, he was in the actual CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 70 possession, and nothing beyond that. It is not a suit based on title or any other claim, but only a suit based on the averments, that the plaintiff was in settled possession, and was thrown out illegally by the defendants without due process of law, and that the plaintiff claims to be entitled to the restoration of the possession.
141. In the circumstances, in view of the provisions of Section 6 of the Relief Act, there is nothing, which can prevent the plaintiff from obtaining the relief of restoration of the possession from the defendants.
Issue No.3 is accordingly, decided in favour of the plaintiff.
Issue No.4:Whether the plaintiff is entitled for relief of injunction as prayed for?OPP
142. In view of findings on Issue No.3 above, the plaintiff is also held entitled to relief of injunction as prayed, and accordingly, CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 71 defendants are restrained from exercising any kind of right over the suit property including any attempt to alienate the suit property or part therefrom or to create any kind of third party interest therein or part with the possession of the suit property to any third party, and defendants are accordingly permanently restrained from doing any of the above acts.
143. Issue No.4 is accordingly decided in favour of plaintiff and against the defendants.
Relief:
In view of my findings on the issues above, suit is decreed in favour of the plaintiff, with direction to the defendants to restore the possession of the suit property i.e. no. A15/113A, DDA Flats, Inderlok, Delhi110035, to the plaintiff as shown in red colour in the site plan and also the defendants are immediately, and permanently restrained from parting with the possession or otherwise, dealing with the suit CS No.346/14 Iqbal Ansari vs. Ataurrehman etc. 72 property in any manner whatsoever or attempting to alienate the suit property or any part thereof to any third party whatsoever. Plaintiff is also held entitled to cost of the litigation throughout. Decree sheet be prepared, accordingly.
File be consigned to the record room.
Announced in the open court on 31.08.2016.
(SUJATA KOHLI) Additional District Judge, Central District, Delhi CS No.346/14 Iqbal Ansari vs. Ataurrehman etc.