Delhi District Court
Anil Kumar vs Pradeep Jain And Ors on 7 December, 2023
IN THE COURT OF MS. PURVA SAREEN,
ADDITIONAL DISTRICT JUDGE-01, SOUTH DISTRICT,
SAKET COURT, NEW DELHI
Civil Suit No.793/2017
DLST-01-007096-2017
Anil Kumar Jain
S/o Sh. R. S. Jain
R/o RZ-18A,
Tughlakabad Extension,
New Delhi
..... Plaintiff
VERSUS
1. Pradeep Jain
S/o Sh. R. S. Jain
R/o D-108, Dr. Ambedkar Colony,
Chattarpur, Delhi
2. Md. Aslam
R/o 268, Kumar Basti,
Hauj Rani, New Delhi-110017
..... Defendants
Date of institution of case : 01.09.2017
Date for reserving orders : 21.10.2023
Date of pronouncement of judgment : 07.12.2023
JUDGMENT
SUIT FOR POSSESSION, DAMAGES, MENSE PROFITS, PERMANENT AND MANDATORY INJUNCTION
1. The present suit has been filed by Anil Kumar Jain (hereinafter referred to and called as plaintiff) for possession, damages, mense profits, permanent and mandatory injunction against the defendants namely Pradeep Jain (hereinafter referred to and called as defendant CS No.793/2017 Page 1 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr no.1) and Md. Aslam (hereinafter referred to and called as defendant no.2).
2. The present suit has been filed by the plaintiff for possession, damages, mesne profit and permanent injunction qua suit property bearing no.D-108, Khasra no.120, measuring 200 square yards situated at Ambedkar Colony, Chhattarpur, New Delhi against the defendants. It is submitted that the suit property was purchased by the plaintiff from one Kulwant Singh on 18.11.1995 on execution of agreement to sell and purchase, GPA, agreement to transfer and advance receipt, for a total consideration of Rs.5 Lacs. It is submitted that defendant no.1 is the real younger brother of the plaintiff and defendant no.2 is a builder. Defendant no.1 was merely a permissive occupant in the suit property but in connivance with defendant no.2, he ousted the plaintiff and started raising construction therein. The plaintiff had already constructed two rooms, one kitchen and toilet in the year 2000. An electricity meter was also got installed and a landline number was taken by the plaintiff in his name on the said address.
3. After sometime, plaintiff allowed his younger brother defendant no.1 to reside in the suit property as he had no accommodation in Delhi as a permissive user without any charges. Even the father of the plaintiff started living in the suit property as the suit property had more space. After some time, plaintiff also started planning to shift in the suit property and requested defendant no.1 to vacate the suit property and to make his own arrangements somewhere else. In 2017, plaintiff CS No.793/2017 Page 2 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr came to know that defendant no.1 in order to play a fraud was trying to dispose of the suit property in connivance with defendant no.2. Defendants no.1 and 2 even tried to demolish the suit property which was stopped by the help of the police. The plaintiff felt that the matter had resolved and put his lock on the premises. However, plaintiff came to know that defendants no.1 and 2 were trying to dispossess the plaintiff of the suit property and were trying to cause demolition which was got stopped by plaintiff with the help of police as the defendant could not prove their claim over the property.
4. On 31.07.2017, plaintiff came to know that defendants had broken the locks of the suit property and had even caused partial demolition of the suit property and immediately on 01.08.2017, plaintiff approached the police and matter was sorted out after plaintiff made a written complaint against the defendants at PS Mehrauli. The plaintiff was informed that the defendants were claiming the suit property through some documents which were never shown to the plaintiff.
5. The plaintiff apprehends that defendants no.1 and 2 have fabricated and prepared forged documents qua the suit property in connivance with each other in order to grab the property of the plaintiff and now making construction at a very fast pace. Plaintiff made several complaints to SHO PS Mehrauli and also submitted the complete set of documents alongwith previous chain of documents qua ownership. The plaintiff even filed a suit for declaration, permanent and mandatory injunction but the same was withdrawn on technical grounds as the possession of the property had been taken away from CS No.793/2017 Page 3 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr the plaintiff. It is stated that the plaintiff had allowed defendant no.1 to use the suit property merely as a permissive user and he is liable to pay occupation charges also to the plaintiff. Plaintiff has thus prayed for possession alongwith permanent and mandatory injunction also alongwith mesne profit and damages from the defendants.
6. Written statement was filed by defendants which was taken on record. The defendants in its written statement/reply stated that the plaintiff had not approached the court with clean hands and had suppressed the material facts. Further, no cause of action was there in favour of the plaintiff and plaintiff was falsely claiming himself to be owner of the suit property.
7. In his reply on merits, it was stated that the defendant no.1 was the absolute owner of the suit property and had purchased the same from Sardar Kulwant Singh vide GPA, Agreement to sell, Affidavit and Receipt dated 14.05.1996 for consideration of Rs.75,000/- and plaintiff was falsely claiming is ownership in order to grab the suit property. He claimed the documents of the plaintiff to be forged. Defendant further stated in his written statement that he being the owner of the suit property approached the defendant no.2 to construct the suit property on collaboration basis which the defendant no.2 was doing as per law. It was further submitted that in reality the defendant no.1 had got constructed the two room, one kitchen and a toilet in the aforesaid suit property from his hard earned money and the plaintiff taking advantage of the ongoing construction in the suit property, blackmailed the defendants to extort money from them. It was further CS No.793/2017 Page 4 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr submitted that the plaintiff was telling a white lie as defendant never put his locks over the property rather he was constructing the suit property in December 2016 in collaboration with defendant no.2 as the suit property had become very old and was not habitable for his family. It is further submitted that the plaintiff had never been in possession of the suit property but being the real brother, the defendant no.1 never bothered if the plaintiff used the address of the suit property for some official or government purpose like taking telephone or electricity connection as there was no such difference between them. All the remaining averments of the plaintiff were denied in para-wise reply.
8. Plaintiff filed replication to the written statement of defendant no.2 controverting the stand taken by him in his written statement and reiterated the facts of his plaint.
9. After completion of proceedings, matter was listed for framing of issues. From the pleadings of the parties, vide order dated 03.05.2018, following issues were framed :-
i) Whether plaintiff is entitled to decree of possession, as prayed in clause (a) ? OPP
ii) Whether plaintiff is entitled to decree of permanent injunction, as prayed in clause (b) ?
iii) Whether plaintiff is entitled to decree of mandatory injunction, as prayed in clause (c) ? OPP
iv) Whether plaintiff is entitled damages for a sum of Rs.2 lakhs as prayed in clause (d) ? OPP CS No.793/2017 Page 5 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr
v) Whether the plaintiff is entitled to decree for use and occupation charges @ Rs.30,000/- as prayed in clause (e) ? OPP
vi) Relief.
10.Thereafter, matter was listed for plaintiff evidence which was conducted by Local Commissioner. During the plaintiff evidence, plaintiff examined himself as PW1 and tendered his affidavit in evidence as Ex.PW1/X. He relied upon the following documents :
i) Advance receipt Agreement to Sell and Purchase dated 18.11.1995 Ex.PW1/1.
ii) Agreement to transfer dated 04.12.1995, Ex.PW1/2.
iii) GPA dated 04.12.1995, Ex.PW1/3.
iv) Income Tax Clearance Certificate for 1995 to 2000, Ex.PW1/D1.
In his cross examination, witness stated that he was residing at property no.RZ-18A, Tuglakabad Extn alongwith his family since 1996. He stated that he had not filed any documents to show that in 2000 he had constructed two rooms, one kitchen and washroom. The electricity and telephone connections were in his name and he had taken the same by filing his proof of residence and other documents. He further stated that he was working as contractor in 1995 with Delhi Jal Board, MCD and Slum Department and was earning Rs.40,000/- to Rs.50,000/- per month. He was also paying income tax. He had purchased the suit property with cash only. He could not tell if he had mentioned about the said property in his ITR. From 1995 to 2000, he had two properties in his name i.e. suit property and RZ-18A which was measuring around 65 sq yards. He further stated that his younger brother/defendant no.1 had come to CS No.793/2017 Page 6 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr Delhi in 1997 and was residing in the suit property since 2000/2001. He further disclosed that MTNL connection got disconnected in 2005 and the electricity connection got disconnected in 2014 upon his complaint when the defendant no.1 started carrying out construction in the suit property. He further stated that he used to come and reside in the suit property off and on with his family. He denied that he had forged and fabricated the documents of the property or that defendant no.1 was owner of the suit property. He denied sending any legal notice to defendant no.1 for vacating the suit property. He admitted that electricity theft case was registered against defendant no.1 in 2000 pertaining to the suit property.
(II) Thereafter, Shivam Jain was examined as PW2 who tendered his affidavit in evidence as Ex.PW2/A. PW2 was son of PW1/plaintiff. He corroborated the affidavit of PW1 in his evidentiary affidavit.
In his cross examination, witness stated that his date of birth was 05.04.1993. He was informed by his father that suit property was owned by his father and they had constructed some portion of the same. Most of the facts stated by him in his affidavit were conveyed to him by his father. He denied that defendant no.1 was not allowed to live in the suit property so that the harmony of the family could be preserved.
(III) Thereafter, Sudhir Tiwari was examined as PW3 who tendered his evidence and exhibited the title documents including GPA, Agreement to sell and purchase and advance receipts as Ex.PW3/1. He also brought on record copy of survey report of Andheriya Mod CS No.793/2017 Page 7 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr Residential Structure as Mark A. He stated in his affidavit that he was the resident of the same locality. He had also purchased the plot from the same owner namely Kulwant Singh. The plot of 400 sq yards was purchased in equal measurement by PW3 and the plaintiff, almost at the same time. He submitted that the younger brother of the plaintiff started living in the property in 2000-2001. The defendant used to work for the plaintiff and was totally dependent on the plaintiff for survival. The plaintiff used to come and stay in the suit property with his family off and on, although he was a permanent resident of Tuglakabad. PW3 was living in his part of the property since 1998 and also used to keep a check on the plaintiff's property. He also formed a resident welfare association to fight anti social activities for the welfare of the residents. He further stated that defendant never come forward to join RWA as the owner of the property and only the plaintiff used to participate in RWA activities. PW3 stated that he was aware that defendant no.1 was never the owner of the property. PW3 had never come across any documents showing ownership of defendant no.1. In 2017 demolition conducted by defendant no.1 was stopped by plaintiff and his associates and on 31.07.2017, defendant no.1 alongwith Mr. Aslam entered into the property of the plaintiff (defendant no.1) and started raising construction. PW3 further stated that when the Deputy Commissioner MCD submitted a report before Hon'ble Delhi High Court alongwith the survey report, Anil Kumar Jain (plaintiff) was shown as the resident in the suit property. He further stated that at the time of purchase, property used to bear Khasra No.120, Bhangu Farms, Andheriya Mor and plaintiff's CS No.793/2017 Page 8 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr property had the same number and in August 2000, the said property was assigned no.D-108A and D-108, Ambedkar Colony, Chhatarpur, Delhi. He further stated that the property could fetch a rent of Rs.20,000/- per month easily at the time of filing of the affidavit.
In his cross examination, he submitted that he was running a business of tube-well, drilling and rain water harvesting. He had taken license for running the said business. The welfare association that was constituted in 2007 was duly registered and there were 500 members in the same. In 2004 and 2007, when government directed the RWA to make the list of property owners, they did a survey and filed the report accordingly. He also stated that during the survey, a team of local colony residents personally visited each and every house to inquire about the residents. Some of the residents were residing as illegal occupants, however, no list was prepared of those illegal occupants. The witness stated that he had taken electricity connection from DESU in 1998. He admitted that in the survey report Mark B, both his name and Anil Kumar Jain's name was given and both the entries were pertaining to Khasra No.37 on page 63 and 64 of the plaint. He denied that defendant no.1 was owner of the suit property and rather he was dependent upon the plaintiff. He could not say if the defendant no.1 had built up any room in the suit property in the year 2013-14 with his own funds.
(IV) PW4 was a summoned witness, ASI Bijender Singh from PS Mehraul, who brought the complaint register of year 2017 and the complaints made by Anil Jain bearing DD no.64B dated 16.08.2017 exhibited as Ex.PW4/1 and DD no.65B dated 01.09.2017 exhibited as CS No.793/2017 Page 9 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr Ex.PW4/2, DD No.30A dt. 25.09.2017 was exhibited as Ex.PW4/3.
In his cross examination, witness stated that he had no knowledge regarding the contents of the complaints.
(V) PW5 was also a summoned witness, Vinay Kumar from BSES office, Saket who produced the summoned record pertaining to CA No.102178723 in the name of Anil Jain exhibited as Ex/PW5/1. The said connection was transferred in the name of Pradeep Jain on 30.07.2014 on the basis of application for change in connection exhibited as Ex.PW5/2, Affidavit dated 18.07.2014 which was Ex.PW5/3, Indemnity Bond dated 18.07.2014 which was Ex.PW5/4, GPA dated 09.07.2014 which was Ex.PW5/5, GPA dated 25.07.2014 which was Ex.PW5/6, electricity bill dated 20.05.2014 in the name of Anil Jain Ex.PW5/7, Aadhar Card of Pradeep Jain Ex.PW5/8 and election card of Anil Jain Ex.PW5/9.
In his cross examination he stated that the record of the said CA number was not traceable. Upon specific directions, witness produced the letter from the Higher Authority which stated that as per the office record, original application made by Anil Jain was not traceable. He brought the copy of the letter which was exhibited as Ex.PW5/D1. The witness stated that the personal presence of the consumer and subsequent transferee was not required for the purpose of change of name of registered consumer.
11.Thereafter, the evidence of the plaintiffs witness was closed and the matter was listed for defendant evidence. The defendant examined two witnesses as under CS No.793/2017 Page 10 of 28
Anil Kumar Jain Vs Pradeep Jain & Anr (I) DW1 was Pradeep Jain who stated that he was the absolute owner of the suit property measuring 200 sq yards and had purchased the same from Kulwant Singh vide GPA, agreement to sell, affidavit and receipt dated 14.05.1996 for Rs.75,000/-. On 27.06.2000 when a raid was conducted by Delhi Vidyut Board for electricity theft, the electricity connection was sanctioned in the name of the plaintiff instead of the defendant and thereafter plaintiff had forged all the title documents in his favour. He had constructed the suit property on collaboration basis as he was not having sufficient money and defendant no.2 spent Rs.35 lacs on construction of the suit property.
Plaintiff had never made any construction on the same. The plaintiff wanted to extort money from the defendants and had lodged false complaints against them.
He relied upon the documents as under :-
(i) General Power of Attorney dated 14,05.1996 (running into 2 pages), exhibited as Ex.DW-1/1 (OSR).
(ii) Agreement to Sell dated 14.05 1996 (running into 2 pages), exhibited as Ex.DW-1/2(OSR).
(iii) Affidavit of Sh. Sardar Kulwant Singh dated 14.05.1996, exhibited as Ex.DW-1/3 (OSR).
(iv) Receipt dated 14.05.1996 executed by Sardar Kulwant, exhibited as Ex.DW-1/4(OSR).
(v) Passbook in the name of Pradeep Jain issued by Indian Overseas Bank, exhibited as Ex.DW-1/5(OSR).
(vi) Election I-Card bearing no.YRI2225687 of Pradeep Jain, exhibited as Ex.DW-1/6(OSR).
(vii) Electricity bill having due date 10.02.2016, exhibited as CS No.793/2017 Page 11 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr Ex.DW1/7 (OSR).
(viii) Notice issued from the Court of Sh. Chandra Bose, Ld.MM, Shakti Kiran, ITO, New Delhi, exhibited as Ex.DW-1/8.
(ix) FIR No, 739/2000 registered at PS Mehrauli is now exhibited as Ex.DW-1/9.
In his cross examination, witness stated that they were four brothers and three sisters. The elder brother/plaintiff Anil Jain had been residing in Delhi since 1988. However, he left Delhi in the same year and came again in 1991. The plaintiff was residing in a rented accommodation at 9A/5, Tuglakabad Extension, New Delhi. Thereafter, defendant alongwith plaintiff shifted to a purchased property in 1994-95 which was RZ-18A, Tuglakabad Extension. The defendant admitted that the plaintiff was an Income Tax payee but he was not paying tax in 1995. He admitted that he had paid the Income Tax return for the first time on 1997 and he had no documents qua the same. He also stated that he could not produce any document of ITR of the year 1996-97. He again stated that at present the defendant was not an Income Tax payee. He also admitted that he was not having any individual income in 1995 to 1997 as the business was being carried out jointly by him and the plaintiff. He denied that he was not having any independent income but was only assisting the plaintiff. The defendant was given opportunity to produce income tax return/bank statement of 1995 to 1997 but stated that he had not opened any account till 1996. He further stated that he had opened his first account in 1998 in Greater Kailash. He could not produce statement of account from 1998 to 2008 as the same was not retained by the bank and he himself also did not maintain any passbook prior CS No.793/2017 Page 12 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr to 2013. He stated that he had not purchased any movable or immovable property before purchasing the suit property in 1996. He denied that from 1993 to 1996 he could not purchase any movable or immovable property on his own as he was not having any source of income. He admitted that he was not having fixed disbursal from his elder brother. However, his brother used to give him money whenever demanded whether it was Rs.10,000/- of Rs.10,00,000/-.
He further admitted that his brother/plaintiff had lent him Rs.30,000/- for purchasing the suit property and he had also borrowed Rs.25,000/- from his father. He was himself having Rs.20,000/-. He admitted that he had not mentioned about the money borrowed in his written statement. He admitted that he knew Sudhir Tiwari/PW3 as he was his and plaintiff's business friend. He stated that he was not aware that out of the 400 sq yards property, 200 sq yards had been purchased by Sudhir Tiwari in 1995. He was also not aware that plaintiff alongwith Sudhir Tiwari had together purchased the suit property from Sardar Kulwant Singh. He could not tell if the plaintiff had another property in the said area. He stated that the stamp papers had been purchased by Sardar Kulwant Singh. He further stated that when the consideration amount was handed over there was no other person present at that time. The documents were also got prepared by Sardar Kulwant Singh and got registered at Mehrauli only. He denied that the documents were fabricated and were prepared after 2014. He also denied that those were never signed by Sardar Kulwant Singh. He further stated that witnesses namely Dr. Rukubuddin and Mr. Arvind were residing at Chhatarpur and Gandhi Nagar respectively. In 1996 also, they were residing on CS No.793/2017 Page 13 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr the same address. He denied that signatures on documents Ex.DW1/1 to Ex.DW1/4 were obtained after fabricating the documents. He admitted that he was aware about the death of Sardar Kulwant Singh, however, he was not aware the date, month or year when he passed away. He could not tell the area of property of Sardar Kulwant Singh in 1996. he denied that in 1996 the address of the suit property was K-120, Bhangu Farms, Chhatarpur, Mehrauli, New Delhi and not D- 108, Ambedkar Colony, Chhatarpur, New Delhi. He further stated that he did not know whether prior to 2000, the property address was K-120, Bhangu Farms, Chhatarpur, Mehrauli, New Delhi. He denied that he shifted into the suit property after his marriage at the instructions of plaintiff. He voluntarily stated that the property belonged to him. On being specifically directed, he produced the bank statement of his account in Indian Overseas Bank 01.04.2010 to 31.03.2012. He stated that he had no other bank account prior to 2010. He admitted that prior to 2014, the electricity connection in the suit property was in the name of Anil Jain. He further stated that he had not filed any application for transfer of electricity connection but when he requested his brother/plaintiff, the plaintiff got the electricity connection transferred in his name. He had done so as he needed a bill in his name. He admitted that the documents Ex.PW5/1 to PW5/9 were having his signatures. He denied that documents pertaining to transfer of electricity connection were filed by him. He denied that there was a landline connection in the name of the plaintiff with respect to the suit property. He denied the document shown to him as Mark A stating that the connection never existed in the suit property. He admitted that Voter ID card bearing his address as RZ-18A/5, CS No.793/2017 Page 14 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr Tuglakabad Extension stating that the same belonged to him. It was exhibited as DW1/P2. He further stated that there was no water connection and they were using tube-well for water supply.
He also admitted that the second witness to the documents Ex.DW1/1 to Ex.DW1/4 who was Mr. Arvind, was his real brother in law who resided in Gandhi Nagar but he denied that he had wrongly induced Mr. Arvind to sign as a witness on forged and fabricated documents. He further stated that probably the first witness Dr. Rukubuddin was known to D2 Aslam but he denied that defendant no.2 also induced the first witness to sign on forged and fabricated documents. On being shown Ex.DW1/P3, the witness admitted that it was a GPA executed by him in favour of his wife Neelam Jain. He had executed the same in order to transfer the suit property in her name. He denied that the construction in the suit property was carried out by the plaintiff. He denied that the rate of land of the suit property in the vicinity was Rs.2500/- per sq yard in 1995-1996. he further stated that he had entered into collaboration agreement with defendant no.2 but he had not filed the same with his written statement. He denied that he entered into such agreement only to extort money from the plaintiff and to exert pressure upon the plaintiff, he had also prepared forged and fabricated documents. He denied that he had made any illegal construction on the suit property and also denied that he was merely a permissive user. He maintained through out the examination and cross examination that he was the owner of the suit property.
(II) DW2 was Ram Swaroop Jain who was the father of plaintiff and CS No.793/2017 Page 15 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr the defendant no.1. He stated that defendant no.1 had purchased the property for Rs.75,000/- in the year 1996 and had taken Rs.20,000/- from DW2. He further deposed that he had never heard from the plaintiff or defendant or from any other source that the property belonged to the plaintiff but it was always known that the property belonged to defendant no.1. He had tried to resolve the matter between the two brothers and still wanted that their dispute should end. Witness tendered his affidavit in evidence as Ex.DW2/A. In his cross examination, he stated that he was into trading of grains in MP 25-30 years back. When around 20-22 years back, he left the said business, he had no source of income. He had four sons and only the elder son namely Chaubey used to assist him financially. He stated that he did not know the contents of the affidavit. He stated that when he came to Delhi, he came to the house of his third son who was the plaintiff which was in Tuglakabad and was his own property. His son was in the business of borewell. He stated that the property in Tuglakabad measuring 30x40 feet was purchased by Anil Jain himself and none had contributed towards the purchase of the said property. He further deposed that his youngest son Pradeep Jain had not learnt any technical skill except the grain business while he was in MP. He further stated that when Pradeep Jain came to Delhi, he directly came to the house of Anil Jain. Pradeep Jain was 20-25 years old at that time. He further admitted that when Pradeep Jain came to Delhi, he was entirely dependent upon Mr. Anil Jain and used to help plaintiff Anil Jain in his borewell business without any remuneration as all the basic amenities were being provided by Anil Jain. He could not tell as to how much CS No.793/2017 Page 16 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr Pradeep Jain was earning at the time of his marriage but he came to reside at Anil Jain's house after his marriage alongwith his wife and after sometime they both i.e. Pradeep Jain and his wife shifted to Mehrauli. The witness knew Mr. Tiwari who was neighbour in the suit property but he denied that Mr. Anil Jain and Mr. Tiwari had purchased suit property together in the same year. He did not remember if there was any electricity connection when he stayed at the suit property. He denied that electricity connection was got installed by Anil Jain in the suit property. He also denied that Pradeep Jain was not having sufficient funds to get electricity connection installed at the suit property. He further stated that there was a landline connection but he was not aware if the same was in the name of Anil Jain. He further stated that Pradeep Jain stopped assisting Anil Jain in borewell business as there was ban in borewelling. He could not tell if Pradeep Jain was doing any business independently. He further stated that Pradeep Jain's wife was a housewife and he was having three children. He denied that suit property was purchased prior to Pradeep Jain's marriage by Anil Jain in 1995 but admitted that the same was purchased by Pradeep Jain for Rs.75,000/-. He further stated that he had provided Rs.75,000/- to his son Pradeep Jain for purchase of the suit property. He also stated that he had provided Rs.20,000/- to Anil Jain for building the rooms in the suit property. He denied that the construction made by defendant no.1 was stopped by plaintiff in March 2017 or July August 2017. He denied that he had been won over by the defendant and therefore he was deposing falsely.
CS No.793/2017 Page 17 of 28Anil Kumar Jain Vs Pradeep Jain & Anr
12.Written arguments/submissions were filed by both the parties and final oral arguments were also addressed by the counsel for plaintiff and defendants.
13.I have gone through the documents placed on record and perused the evidence of the parties and file carefully.
14.My Issue wise findings are as follows:-
The undersigned shall first decide the issue no.1, 2 and 3 together as the same are inter related which are as under:-
i) Whether plaintiff is entitled to decree of possession, as prayed in clause (a) ? OPP
ii) Whether plaintiff is entitled to decree of permanent injunction, as prayed in clause (b) ?
iii) Whether plaintiff is entitled to decree of mandatory injunction, as prayed in clause (c) ? OPP The onus to prove the above three issues is upon the plaintiff.
The plaintiff has filed the suit for possession with permanent and mandatory injunction alongwith damages and mesne profit against defendant no.1 and 2. As per the plaint, defendant no.1 is the real younger brother of the plaintiff and defendant no.2 is a builder. The main averment of the plaintiff is that he had purchased the suit property on 18.11.1999 measuring 200 sq yards situated at Khasra no.120, Chhatarpur, Mehrauli from Sardar Kulwant Singh for Rs.5,00,000/-. The plaintiff has exhibited his documents of title as agreement of sell and purchase alongwith receipts, agreement to transfer, general power of attorney, all executed by Kulwant Singh in CS No.793/2017 Page 18 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr favour of Anil Jain. The plaintiff stated that in 2000, he had constructed two rooms, one kitchen and a toilet and also installed a landline connection in the said property on 25.09.2004. Plaintiff allowed his younger brother to occupy the said property as a permissive user and his father also started living there in 2013. It is stated by the plaintiff that in 2000 the property which was earlier called as Bhangu Farm a land falling in khasra no.120 measuring 200 sq yards situated at Village Chhatarpur, Tehsil Mehrauli, New Delhi was numbered as D-108 after regularization. The plaintiff has placed on record the order passed by Hon'ble Delhi High Court on 13.02.2003 vide which the property of the plaintiff was regularized and after regularization no.D-108 was alloted to the suit property.
15.The main defence of the defendant is that it was defendant no.1 who had purchased the suit property from Sardar Kulwant Singh on 14.05.1996 for Rs.75,000/- and not the plaintiff. The documents relied upon by defendant no.1 are GPA, agreement to sell and affidavit. The defendant no.1 approached defendant no.2 for construction of the suit property on collaboration basis and the dispute arose when construction was started by defendant no.1.
The arguments addressed by the plaintiff include the averment that a doubt has been created on the documents of the defendant as the documents of defendant no.1 are all dated 14.05.1996 and had been issued by the same vendor having Serial No.15061 on the affidavit, serial no.18046 on GPA and serial no.18047 on agreement to sell. It is argued that it is impossible for a stamp paper vendor to sell more than 2900 stamp papers in a day and CS No.793/2017 Page 19 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr this fact itself casts a doubt on the authenticity of the documents of defendant no.1.
16.The plaintiff has further submitted that in the documents of defendant no.1, the residential address of seller is given as D-109 and that of the buyer is given as D-108. In the year 1996, when the sale was allegedly effected, the property no.D-108 and D-109 never existed and the description of the said plot was Khasra No.120, Bhangu Farm, Andheria Mod, New Delhi. In fact, in FIR No.739/2000 which was registered upon the defendant for electricity theft on 27.06.2000 also had the address of the suit property as Khasra No.120, Andheria Mod, South, Delhi.
17.It is further argued that electricity connection at the suit property was installed in the name of plaintiff on 25.09.2004 and it was only on 30.07.2014 that the defendant no.1 got the same transferred to his name on the basis of alleged title documents. It is also argued that the GPA dated 25.07.2014 was never executed by the plaintiff and the signatures of the plaintiff have been forged by defendant no.1.
18.The plaintiff had examined PW3 Sudhir Tiwari who produced the Survey report of residential structure and the same had the name of the plaintiff against house no.D-108.
19.The defendant only made a mention of the collaboration agreement without filing the same despite the fact that it pertained to October 2016 whereas the case pertains to September 2017 and there was no CS No.793/2017 Page 20 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr reason for the defendants not to file the collaboration agreement at the time of filing of written statement.
20.The defendant no.1 and 2 while addressing their arguments submitted that the documents of the plaintiff were forged and fabricated. It is argued that plaintiff has no concern with the suit property and defendant no.1 is the actual owner and in possession of the suit property. Plaintiff being the brother of defendant no.1 is trying to grab the property with illegal means. PW3 Sudhir Tiwari who is President of RWA area has colluded with plaintiff and has manipulated, fabricated and forged the title documents only to grab the property of defendant no.1. It is argued that the original survey report was never produced before the court, hence, it cannot be read into evidence. It is further argued by the defendant that defendant no.1 has been in possession of the suit property prior to 2000 and in the year 2000, FIR was also registered against the defendant no.1 for electricity theft as it was the defendant who was in possession and was residing there. It is further argued that the document of PW3 and plaintiff are forged and fabricated and were executed on the same date as the stamp vendor who sold the stamp papers was also the same. The defendant has pointed out to the evidence of PW3 wherein he has stated that he had taken the electricity connection in 1998 which is not possible as the property itself was purchased in 1995 and hence the documents of Sudhir Tiwari are prima facie forged and fabricated.
21.Counsel for defendant has further argued that DW2 Shri Ram Saroop CS No.793/2017 Page 21 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr Jain, father of plaintiff and defendant no.1 also supported the defendant's claim saying that the property belonged to defendant no.1 and plaintiff had nothing to do with the property in any manner.
22. The perusal of all the documents of the plaintiff and defendant ought to show that both the plaintiff and defendant no.1 are in possession of the documents of the property and documents of both the parties are on similar footing as neither the plaintiff nor the defendant documents are registered. Now, it is upon the court the decide whose documents can be relied upon. Whereas the plaintiff documents pertain to the 04.12.1995, the defendant no.1's documents pertain to 14.05.1996. Documents of both the parties have been drawn on stamp papers. The only difference between the documents is that the documents of the plaintiff bear the description of the suit property as Khasra No.120, measuring 200 square yards situated at Ambedkar Colony, Chhattarpur, New Delhi whereas the documents of the defendant bear the description of the property as D-108, Dr. Ambedkar Colony, Chattarpur, Delhi.
It has been argued by learned counsel for plaintiff that regularization proceedings were conducted qua the suit property and it was only after 2003 that the description of the property was changed to D-108. The defendant has not been able to counter the arguments of learned counsel for the plaintiff. He has not been able to explain why his documents of the year 1996 bear the address of D- 108, Dr. Ambedkar Colony, Chattarpur, Delhi when the said number to the property was alloted only after regularization after 2003. The defendant has not been able to explain when the address of the CS No.793/2017 Page 22 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr property purchased by him was D-108, why the FIR was registered against him for property bearing Khasra No.120, Amdheria Mod, Delhi. The defendant has also not been able to juustify the numbers of his stamp papers which are random and despite being purchased on the same day bear the numbers with the difference of almost 2900 stamp papers. The said discrepancies has not been observed in the stamp papers of the plaintiff which are continuous in number.
23. The electricity connection was initially in the name of the plaintiff and the plaintiff has been able to show the same by examining PW5 from BSES office. PW5 Vinay Kumar stated that although he could not produce the documents of plaintiff Anil Jain but exhibited the documents dated 30.07.2014 vide which the connection was transferred in the name of the defendant no.1 by the plaintiff. It is also observed and pointed out by counsel for plaintiff that the general power of attorney allegedly executed by Anil Jain in favour of Pradeep Jain which is dated 09.07.2014 pre dates the general power of Attorney executed by Raj Kumar in favour of Anil Jain which is dated 25.07.2014. Anil Jain could not have possibly executed a GPA in favour of Pradeep Jain till he himself had a GPA in his favour which as per the documents was executed after the alleged GPA was executed in favour of Pradeep Jain by Anil Jain. This too casts a doubt on document brought on record by PW5 which is in favour of Pradeep Jain.
24. All the documents filed by Pradeep Jain brought on record by PW5 showing including GPA in favour of Pradeep Jain are prima facie CS No.793/2017 Page 23 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr doubtful and unreliable on the face of it.
25. Further, the alleged collaboration agreement supposedly prepared on 17.10.2016 was never brought on record by the defendant while filing the written statement, during the cross examinations or during defendant evidence.
26. All the documents including GPA, agreement to sell, affidavit and receipt dated 14.05.1996, GPA executed in favour of defendant no.1 by the plaintiff dated 09.07.2014 and the alleged collaboration agreement filed by the defendant seem to be unreliable and do not inspire the confidence of the court. Hence, the court is not inclined to rely on any of the documents of the defendant no.1. As far as the documents of plaintiff are concerned, they have been corroborated by the evidence of PW-3 Sudhir Tiwari also. Additionally the survey report Mark A also bears the name of Anil Jain/plaintiff against house no.D-108. PW-3 also stated that Pradeep Kumar Jain defendant no.1 had himself disclosed that he was completely dependent on his brother Anil Kumar Jain and was also residing with him.
27. Even if the averment of the defendant that he was the owner of the suit premises is considered, his cross-examination itself falsifies his own claim. He himself states in his cross-examination that he used to assist the plaintiff in his work since 1991. He further states that he was not an income tax payee and had filed income tax for the first time in 1997 but could not show any ITR. He again stated that he was not paying any income tax at present too. On being specifically CS No.793/2017 Page 24 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr questioned he stated that he was not having any individual income from 1995 to 1997 and did not even have a bank account till 1997. He could not produce any account statement of any year till 2008 but continuously maintained that the suit property was purchased by him in 1997. He stated that he had borrowed money from his father and brother for purchase of the said property specifically mentioning that he borrowed Rs.25,000/- from his father. He further stated that at the time of purchase of the suit property, no one was present when the consideration amount was handed to sardar Kulwant Singh. In his further cross-examination, he brought the bank statement of Indian Overseas Bank and stated that he did not have any bank account prior to 2010.
28.DW-2 was the father of the defendant, who stated that the entire consideration for the purchase of the suit property was provided by DW-2 from his own sources to Pradeep Jain defendant no.1. He admitted that Pradeep Jain was entirely dependant on his brother Anil Jain and even used to assist his brother Anil Jain in his bore well business and all basic amenities were provide by Anil Jain. He further stated that after marriage of Pradeep Jain, he came to reside in the house of Anil Jain alongwith his wife.
29.The entire above discussion shows that the defendant no.1 Pradeep Jain never had the liquidity or resources to purchase the suit property. In fact he has not even brought any document on record to show that he had accumulated savings or money to pay the consideration amount to buy the suit property. In fact, there is glaring discrepancies CS No.793/2017 Page 25 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr in the amount stated by him to have been borrowed for buying the said property. Whereas he stated that he borrowed Rs.25,000/- from his father, father says the entire consideration was paid by him.
30. On one hand the defendant states that consideration was paid to sardar Kulwant Singh when none was present but the documents of the defendant and receipt of payment bears the signatures of one Arvind Jain and Rukbuddin and both of them have neither been made witnesses nor examined in the court. The statements given by the defendant do not match his documents.
31. With the above discussion, the plaintiff has been able to show that his documents are genuine and he is the owner of the suit property and therefore he is entitled for decree of possession. In view of the issue no.1 being decided in favour of the plaintiff, issue no.2 and 3 are also decided in favour of the plaintiff. The defendant is thereby directed to vacate the property bearing no.D-108, Chhattarpur, New Delhi and to handover the peaceful and vacant possession of the same to the plaintiff. Decree of permanent and mandatory injunction is also passed in favour of the plaintiff and defendants are restrained from creating any third party interest in the suit property and also restrained from raising any further construction in the suit property with further direction to demolish any construction made on the suit property by them and also to remove the construction material lying at the suit property. If the party of suit property has already been demolished, the land where the suit property existed alongwith the area underneath be read as suit property and be returned to the CS No.793/2017 Page 26 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr plaintiff by the defendants.
Issue No. iv) Whether plaintiff is entitled damages for a sum of Rs.2 lakhs as prayed in clause (d) ? OPP and Issue No. v) Whether the plaintiff is entitled to decree for use and occupation charges @ Rs.30,000/- as prayed in clause (e) ? OPP
32. Onus to prove both the issues was on the plaintiff. First three issues have already been decided in favour of the plaintiff. As it has been stated by the plaintiff that attempts were made by the defendants to demolish the suit property. This court therefore while exercising its power under Section 151 CPC also directs defendants to pay damages for restitution of the suit property. Keeping in view the size of the suit property which is 200 square yards and presuming that Rs.1,000/- may be expended per square yard, for its restitution both defendants are jointly directed to pay damages of Rs.2 Lacs for restitution to the plaintiff.
33. As far as the occupation charges are concerned, although the plaintiff has not brought anything on record to show the market rate of rent at the time of filing of the suit, still in the interest of justice, the court takes notice that the regularized plot constructed in the area of the suit property may fetch a rent of Rs.15,000/- per month to plaintiff. As plaintiff never gave any notice of vacation to the defendant no.1, filing of the suit may be considered as sufficient notice, therefore, defendants are directed to pay Rs.15,000/- per month from the date of CS No.793/2017 Page 27 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr filing of the suit till the possession is handed over to the plaintiff. Accordingly, both the issues no.4 and 5 stand decided in favor of the plaintiff and against the defendant.
34.Relief.
In view of aforesaid discussions, the suit is decreed in favour of the plaintiff. The defendant is thereby directed to vacate the property bearing no.D-108, Chhattarpur, New Delhi and to handover the peaceful and vacant possession of the same to the plaintiff. Decree of permanent and mandatory injunction is also passed in favour of the plaintiff and defendants are restrained from creating any third party interest in the suit property and also restrained from raising any further construction in the suit property with further direction to demolish any construction made on the suit property by them and also to remove the construction material lying at the suit property. If the party of suit property has already been demolished, the land where the suit property existed alongwith the area underneath be read as suit property and be returned to the plaintiff by the defendants. Cost of the suit is also awarded in favour of the plaintiff.
Further, both defendants are jointly directed to pay damages of Rs.2 Lacs for restitution to the plaintiff. Further, defendants are directed to pay Rs.15,000/- per month from the date of filing of the suit till the possession is handed over to the plaintiff
35.Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Digitally signedPurva by Purva Sareen Date:
Sareen 2023.12.15 13:06:31 +0530 Announced in the open court (PURVA SAREEN) On 07th December, 2023 ADJ-01, SOUTH, SAKET COURT, NEW DELHI CS No.793/2017 Page 28 of 28 Anil Kumar Jain Vs Pradeep Jain & Anr