Delhi District Court
(All Residents Of H. No. F-6 vs Sh. Prem Chand on 7 April, 2021
IN THE COURT OF SH. PRASHANT SHARMA:
ADDITIONAL DISTRICT JUDGE-05: WEST DISTRICT:
TIS HAZARI COURTS: DELHI
RCA DJ No. 60936/16
CNR No. DLWT01-000291-2011
In the matter of :
Sh. Shanti Devi (Since deceased)
Through his legal heirs:-
(a) Sh. Bhim Singh
Husband of Smt. Shanti Devi
(b) Smt. Jaggo Devi
D/o Late Smt. Shanti Devi
(c) Smt. Rajesh Lal
D/o Late Smt. Shanti Devi
(d) Smt. Sunita Rani
D/o Late Smt. Shanti Devi
(f) Sh. Narender Kumar Verma
S/o Late Smt. Shanti Devi
(All residents of H. No. F-61,
Mahipalpur, New Delhi-110037). .......... Appellants
Vs.
1. Sh. Prem Chand
S/o Sh. Chhotu Ram
R/o Village 55/13,
Samalka Mandi, Panipat,
Haryana
2. Sh. Om Prakash (deceased)
Through LRs
Shanti Devi Vs Prem Chand & Ors. Page No. 1 / 28
(i) Sh. Deepak Tyagi
S/o Late Sh. Om Parkash Tyagi,
R/o Village and PO
Pradhan Enclave, Brahmchari
Market, Burari, Delhi-110084.
Also at : Main 25 Feet Road, Pradhan Enclave,
Brahmchari Market, Burari,
Delhi-110084/.
3. Sh. Jai Bhagwan
S/o Sh. Jai Ram
R/o Village Alipur
Delhi-110084.
........... Respondents
APPEAL UNDER ORDER 41 READ WITH SECTION 96 cpc
AGAINST THE IMPUGNED ORDER DATED 05.09.2011, PASSED
BY MS. SWATI KATIYAR, CIVIL JUDGE III, DELHI IN THE
SUIT NO. 26/2005, WHEREBY THE SUIT OF THE APPELLANT
FOR POSSESSION AND PERMANENT INJUNCTION.
Date of institution : 28.09.2011
Judgment Reserved on : 05.04.2021
Date of Decision : 07.04.2021
JUDGEMENT
1. Legal heirs of Shanti Devi namely (a) Bhim Singh (b) Jaggo Devi (c) Dmt. Rajesh Lal (d) Smt. Sunita Rani (e) Smt. Shobha Rani (f) Sh. Narender Kumar Verma filed present appeal against Prem Chand (hereinafter referred as respondent no.1), Deepak Tyagi (i.e. legal heir of Om Prakash as respondent no.2) and Jai Bhagwan (hereinafter referred as respondent no.3) thereby challenging judgment and decree dated 05.09.2011 passed by Ld. Trial Court in suit bearing no. 26/2005.
Shanti Devi Vs Prem Chand & Ors. Page No. 2 / 282. Trial Court record reveals that Shanti Devi had filed civil suit for possession and permanent injunction against Prem Chand, Om Prakash, Jai Bhagwan, Smt. Rekha, Sh. Krishan Kumar Maheshwari and Dev Dhar. During course of proceedings Sri Kishan and Sh. Krishan Kumar Maheshwari were deleted vide order dated 28.04.2005. Further, Rekha and Dev Dhar were deleted from the array of parties vide order dated 19.03.2005. Matter, thereafter proceeded further against Prem Chand, Om Prakash and Jai Bhagwan.
3. Smt. Shanti Devi appellant herein was plaintiff before Ld. Trial Court and Prem Chand, Om Prakash and Jai Bhagwan were defendant no.1, 2 & 3 before Ld. Trial Court. In order to avoid confusion parties will be referred with the same designation as mentioned in the Ld. Trial Court record in my subsequent paragraphs.
4. During course of proceedings Smt. Shanti Devi expired and her legal heirs were impleaded in her place. The said legal heirs pursued present appeal.
5. Before moving further I must mention here contents of plaint in brief. They are mentioned below:-
"That Shanti Devi in 1991 wanted to purchase property in her own name for investment purpose and therefore, she contacted Om Prakash through property dealers Kannu Tyagi, Sri Bhagwan, Sh.Shanti Devi Vs Prem Chand & Ors. Page No. 3 / 28
Ram Singh and Anand, who were jointly working under the name and style of Sunrise properties. Sh. Kannu Tyagi claimed himself to be a colonizer. The said property dealers alongwith Om Parkash (hereinafter referred as defendant no.2) had shown one plot of land measuring 130 sq. yds and told that the said plot situated in Khasra No. 136/12/2/2 of Village Burari, Sant Nagar, New Delhi (hereinafter referred as "suit plot in question"). Terms and conditions for sale and purchase of said plot were finalised between parties . It was agreed that defendant no.2 shall sell the said plot after receiving Rs.60,000/- from plaintiff. After receiving said amount defendant no.2 executed title documents i.e. GPA, agreement to sell, Receipt and Affidavit dated 09.07.1991 and handed over the possession of the property in dispute to the plaintiff in the presence of Kannu Tyagi, Sri Bhagwan, Ram Singh and Anand. Plaintiff after receiving physical possession of suit plot in question filled the same with malba and raised the boundary wall of three feet. Since said plot was situated in unauthorised colony so no sale deed of said plot was executed. Plaintiff claimed that as per prevailing market practices title of said plot was not completely checked by the buyers and the buyers had to believe the representations of the Shanti Devi Vs Prem Chand & Ors. Page No. 4 / 28 property dealers and vendors. It was so done in this case by plaintiff. After purchasing said plot plaintiff did not raise any further construction and the said plot was kept on lying vacant. Plaintiff and her family members used to visit said plot from time to time. On 22.03.2004 at about 8:00 PM, plaintiff received information on telephone from the one of the neighbour that that some body had collected building material near suit plot of land and was trying to take possession of suit plot by raising construction. After receiving said information, plaintiff alongiwth with her husband and son, reached at the suit plot at about 11 PM and found that the building material was collected near the plot of land . Consequently, plaintiff lodged complaint to police by dailing 100 number. Since nobody was present on the spot so police asked plaintiff to come to police station in the morning. On 23.03.2004, when plaintiff reached at the spot in the morning she found defendant no.1 at the spot with labours. Plaintiff raised objection regarding construction by defendant no.1 and told that she was owner of suit plot in question but defendant no.1 claimed he was the owner of suit plot in question. Consequently, on the complaint of plaintiff, police reached at the spot and both the parties were asked to come to police Shanti Devi Vs Prem Chand & Ors. Page No. 5 / 28 Post Jharoda with their respective documents.
Plaintiff showed the title documents which defendant no.2 executed in his favour but defendant no.1 failed to show any title documents in his favour. He sought four hours time for producing the said documents which as per plaintiff indicated that he had no such title over suit plot in question. Consequently, police lodged complaint to police on 30.03.2004 but police in collusion with defendants did not act against defendants. Defendant no.1 instead of producing title documents to police, started exercising his influence by pressurizing the plaintiff through Kannu Tyagi, Ram Singh, Sri Bhagwan and other property dealers by asking her to take back money which she had spent for purchasing suit plot in question but plaintiff refused the offer. Various threats were advanced by defendant no.1 against plaintiff but plaintiff did not succumb to them. Consequently, plaintiff filed civil suit for permanent injunction against defendant no.1 & 2 on 02.04.2004 before competent court praying that defendant no.1 be restrained from interfering in the peaceful possession and carrying out any construction over the suit plot in question. After service of summons in the said case, defendant no.1 & 2 appeared in the concerned Court and produce Shanti Devi Vs Prem Chand & Ors. Page No. 6 / 28 one GPA, Agreement to sell dated 05.03.2004 with respect to 250 sq. yards of property allegedly purchased by defendant no.1 from Shri Kishan. Considering the discrepancy of area of suit plot in question which defendant no.1 came to know after filing his title documents, defendant no.1 found himself caught in his own wrong doings, therefore, disappeared from the Court. With malafide intentions, defendant no.1 brought defendant no.3 in the said proceedings who stated that he had purchased the property measuring 130 sq yards from defendant no.1 vide GPA, agreement to sell dated 24.03.2004. All the said documents as per plaintiff were forged as topography of the suit plot in question were different in those documents. Plaintiff explained that title documents of suit plot in question which plaintiff possessed indicated that plot in question was bounded with 8 feet gali in East, 15 feet gali at the West, other plots at the North and South and whereas the title document filed by defendant no.1 & 3 showed 8 feet gali in East and 20 feet road at the West. Based on the documents filed by defendant no.1 had purchased land measuring 250 sq. yds from defendant no.4 pm 04.03.2004 whereas at the spot only the land measuring 130 sq. yards i.e. the plot in question of the plaintiff is lying Shanti Devi Vs Prem Chand & Ors. Page No. 7 / 28 vacant and there is no other part i.e. 120 sq yards is available at the spot. So, the documents filed by the defendant no.1, 2 showed that the defendant no.1 purchased the property from the defendant no.4 on 05.03.2004 and the defendant no.3 purchased the property from defendant no.1 on 22.03.2004. Defendant no.4 allegedly purchased the suit plot defendant no.5 and defendant no.5 purchased the property from defendant no.6. Plaintiff claimed that defendants were land grabbers of the locality who induced the innocent peoples in false sale purchase of immovable properties on the basis of forged documents. Once they received payments from the innocent people they gave threats to the said people for vacating the properties which were purchased by them. Based on said averments, plaintiff namely Shanti Devi filed present suit praying that decree of possession be passed in favour by directing the defendants to hand over peaceful possession of the 130 sq. yards, situated in Sant Nagar, New Delhi as shown in red colour in the site plan annexed with the plaint. Further, she prayed that decree of permanent injunction be passed in her favour by restraining the defendant no.1 and 3 and their agents, servants etc, from transferring, alienating, letting out, parting with possession and creating any third party interest in Shanti Devi Vs Prem Chand & Ors. Page No. 8 / 28 suit plot in question and from raising any construction over suit plot.
6. Defendant no.2 filed written statement taking preliminary objections viz. that suit was barred for misjoinder of parties as he was neither owner nor person in possession of suit plot in question, that suit lacked cause of action and that it was filed by plaintiff in order to harass defendant no.2. On merits, allegation of plaintiff were refuted. It was explained that no forgery was ever committed by defendant no.2 with regard to title documents of suit plot. That defendant no.2 was the owner of plot admeasuring 230 sq. yds. And out of that plot a plot of 130 sq. yds was sold by the defendant no.2 to the plaintiff and the remaining portion of 100 sq. yds was sold by the defendant no.2 to one Lakhmi. The sale of suit plot was negotiated through property dealer Ram Singh and all the documents in respect of the suit property were handed over to its buyers at the time of sale of that property. He denied that he had any concern with suit plot and prayed for dismissal of the suit.
7. Defendant no.3 also filed written statement taken preliminary objection viz. that plaintiff was neither owner nor person in possession of suit plot in question, that defendant no.2 never acquired right of ownership of the suit property, that title documents executed by defendant no.2 in favour of plaintiff were without any authority and did not give any right, title or interest. Plaintiff further claimed that suit lacked cause of action against him and that plaintiff had concealed material facts from the Court. He explained that Dev Dutt S/o Sh. Ram Shanti Devi Vs Prem Chand & Ors. Page No. 9 / 28 Singh was owner of land measuring 2 bighas 2 biswas out of kh. no. 136/12/2/2, out of which Sh. Dev Dutt transferred 250 sq yads land to Sh. Krishan Gopal S/o Sh. Dungar Mal Maheshwari whose name was so entered into revenue record. Sh. Krishan Gopal sold and transferred his land measuring 250 sq. yds to Smt. Rekha D/o Sh. Ram Kumar Arya vide registered GPA, affidvit, receipt etc all dated on 22.04.1987. Further, Rekha sold and transferred the land to Sh. Sri Krishan on 12.09.1988 and possession was also handed over to Sh. Sri Krishan. Ms. Rekha had executed GPA, agreement to sell, receipt, affidavit ext in favour of Sri Krishan. Late on Sri Krishan further sold his land admeasuring 250 sq. yds to Prem Chand vide GPA, agreement to sell, affidavit etc on 05.03.2004. Later on Prem Chand sold the land measuring 130 sq yds out of total land measuring 250 sq. yds to the defendant no.3 vide registered GPA, agreement to sell, affidavit, receipt all dated 24.03.2004. That is how, defendant no.3 cam in possession of land which has 8 feet gali on the East, 20 feet road on the west side, other land on the North side and remaining portion of Kh. no. 136/12/2/2 on the South side. He explained that suit plot consists of one room, joint latrine bath and four walls as per site plan. He disputed the fact that others remained in possession of said suit plot and claimed that suit was bad for mis joinder of parties as defendant no.3 to 7 were not necessary party. On merits, case of plaintiff was refuted and reference was made to aforesaid preliminary objections which are not repeated here for the sake of brevity.
8. Defendant no.1 was proceeded exparte on 19.03.2005.
Shanti Devi Vs Prem Chand & Ors. Page No. 10 / 28Defendants no.4, 5, 6 & 7 were deleted from the array of parties.
9. Plaintiff filed separate replication to written statement of defendant no.2 & 3 wherein contents of plaint were reiterated and version of said defendants was denied.
10. After completion of pleadings, following issues were settled on 04.08.2005 and additional issue on 22.02.2007:-
(i) Whether the suit is bad for mis-joinder of parties?OPD
(ii) Whether the plaintiff has suppressed material facts from this Court? OPD
(iii) Whether the plaintiff is entitled to the relief of possession as prayed for in the plaint?OPP
(iv) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for in the plaint?OPP
(v) Whether the suit of the plaintiff is barred under Order 2 Rule 2 of the CPC?OPD-3.
(vi) Relief.
11. Plaintiff examined herself as PW1. She tendered her evidence by way of affidavit as Ex.PW-1/A in which she reiterated the contents of plaint which are not repeated here for the sake of brevity. PW-1 relied upon following documents:-
(i) Ex PW1/1 :- Site plan
(ii) Ex PW1/2 :- GPA
(iii) Ex PW1/3 :- Agreement to sell
Shanti Devi Vs Prem Chand & Ors. Page No. 11 / 28
(iv) Ex PW1/4 :- Affidavit
(v) Ex PW1/5 :- Receipt
12. After examining herself plaintiff closed her evidence and matter was fixed for defendant's evidence.
13. Defendant no.1 & 2 did not lead any evidence.
14. Defendant no.3 examined Sh. Suraj Bhan, Patwari from the office of SDM, Civil Lines (North) as DW1 who brought on record khatoni of the year 1993-94 for the khasra bearing no. 136/12/2/2 Ex DW1/1.
15. Defendant no.3 examined himself as DW3 and tendered his evidence by way of affidavit as DW3/A in which he reiterated the contents of written statement which are not repeated here for the sake of brevity. DW3 relied upon following documents:-
(i) Ex DW3/1 to Ex DW3/6 :- documents executed by defendant no.1 in favour of defendant no.3.
(ii) Ex DW3/7 to Ex DW3/10 :- documents executed by defendant no.4 in favour of defendant no.1.
(iii) Ex DW3/11 to Ex DW3/13 :- documents executed by defendant no.5 in favour of defendant no.4.
(iv) Ex DW3/14 to Ex DW3/15 :- documents executed by defendant no.6 in favour of defendant no.5.
(v) Ex DW3/16 :- sale deed executed by defendant no.7 in favour of defendant no.6.Shanti Devi Vs Prem Chand & Ors. Page No. 12 / 28
16. Further, defendant no.3 examined Sh. Satish Kumar LDC from the Record Room (Civil) Tis Hazari Courts as DW3/B and Sh. Jugraj, UDC from the office of Sub-Registrar, Pitam Pura, Delhi as DW3/C.
17. After examining said witnesses, defendant no.3 closed his evidence. Matter was then fixed for judgment after final arguments were heard.
18. Ld. Trial Court dismissed the suit of the plaintiff vide judgment and decree dated 05.09.2011. Against the said judgment and decree, plaintiff has preferred present appeal.
19. Against said judgment and decree, plaintiff filed present appeal, claiming that Ld. Trial Court had not passed correct judgment.
20. After hearings arguments on present appeal, matter was fixed for judgment.
21. To start with, Ld. counsel for plaintiff argued that this case was based on the relief of possession only. As per him, issue of title of plaintiff over suit plot in question was not involved. Same is countered by counsel for defendant no.3, who argued that issue of title of plaintiff over suit plot in question was very much involved in this case.
Shanti Devi Vs Prem Chand & Ors. Page No. 13 / 2822. After going through the record, it is clear that plaintiff had filed suit for possession and permanent injunction claiming herself to be owner of suit plot in question. It was her claim that defendant no.3 had raised the issue of him being owner of suit plot in question. In such circumstances, issue of ownership of plaintiff, was very much involved in this case. More so where, plaintiff did not claim that she was entitled to possession of suit plot in question otherwise than being owner of said plot. As per the mandate of Section 101 of Indian Evidence Act, burden always rested upon plaintiff, to have proved her case. That burden never shifted upon defendants. So, argument of counsel for plaintiff, stands dismissed.
23. Moving further, in order to avoid any prejudices and in order to appreciate the legality of judgment and decree in question, I am appreciating the record of the case, in my subsequent paragraphs.
24. Plaintiff has examined himself to prove her case. Her examination-in-chief and her pleadings remained uniform. Since civil law case have to be decided on the basis of appreciation of preponderance of probabilities, so, I am appreciating the case of plaintiff based on preponderance of probabilities in my subsequent paragraphs.
25. Plaintiff had claimed in her plaint and in her examination-in- chief that she had paid Rs.60,000/- to defendant no.2 for purchasing suit plot in question. After receiving said amount defendant no.2 executed title document which included GPA, Agreement to Sell, Receipt, Shanti Devi Vs Prem Chand & Ors. Page No. 14 / 28 affidavit dated 09.07.1991. Plaintiff failed to place on record any documentary proof showing that she had Rs.60,000/- with her as cash at the relevant time for purchasing suit plot in question which she had given to defendant no.2. Plaintiff did not explain the source/s from where she had arranged Rs.60,000/- for purchasing suit plot in question. It made the case of plaintiff improbable.
26. Plaintiff next claimed that she had taken physical possession of plot in question from defendant no.2. Plaintiff did not file any evidence showing that after getting possession of suit plot in question i.e. on 09.07.1991, she remained in possession of the same till the time she was allegedly dispossessed by defendant no.1 & 3. As such usage of plot in question and its possession thereafter was not probablised by plaintiff based on any proof.
27. Plaintiff next claimed that she had filled plot in question with malba and had raised boundary walls upto 3 feets. Against no evidence was filed by plaintiff in support thereof. Plaintiff in cross-examination admitted that she had not filed any bill of contractor or mason regarding raising of the boundary wall in suit plot in question. Infact plaintiff did not remember in her testimony the name of mason or contractor from him boundary wall over suit plot in question was constructed by her. It made case of the plaintiff improbable.
28. Moving further, plaintiff had claimed that suit plot in question was situated in unauthorised colony where as per prevailing market Shanti Devi Vs Prem Chand & Ors. Page No. 15 / 28 practices no sale deed used to be executed. She further claimed that in such like localities buyers had to believe on the representations of the property dealer and vendors. Again those averments remained bald averments. No evidence was filed by plaintiff in support thereof. Law as such never recognized such market trends for purchasing immovable properties. Thus, only conclusion which I can draw is that plaintiff did not verify the title of defendant no.2 over suit lot in question by going through records of Government authorities and by checking the previous title documents of defendant no.2. Here, I must note that in her cross- examination plaintiff had deposed that she was not supplied with previous chain of title documents by defendant no.2. Infact, plaintiff admitted that defendant no.2 had not given her previous title document over suit plot in question till date and she had never filed any case against defendant no.2 for not giving previous chain of title documents of suit plot in question. The said conduct of plaintiff not only improbable rather illegal also. As per mandate of Section 55 of Transfer of Property Act, plaintiff should have received previous chain of title documents from defendant no.2. Once defendant no.2 had not given those title documents, plaintiff should have filed appropriate case against defendant no.2. She did not do so. As such she did not act like a reasonable prudent buyer placed in her position. I failed to understand as to why documents executed by defendant no.2 in favour of plaintiff were believed by plaintiff to be gospel truth. Based on said appreciation, I find that plaintiff did not prove herself to be a legal buyer of suit plot in question based on her oral testimony.
Shanti Devi Vs Prem Chand & Ors. Page No. 16 / 2829. Moving further, plaintiff had claimed that on 22.03.2004 at about 8 PM she had received information on telephone from one of his neighbour that somebody had collected building material near her plot of land and was trying to take possession of the suit plot in question and was raising construction over it. Plaintiff did not mention as to who was the said neighbour who had so informed the plaintiff. After reaching on suit plot in question, plaintiff did not depose that any of the defendants was present at the suit plot in question, with construction material. The details of construction material was also missing in pleadings and evidence of plaintiff. Infact no photographs was filed by plaintiff in support thereof. It made the whole story of plaintiff improbable.
30. Plaintiff further had claimed that on 23.03.2004 when plaintiff reached at the spot in the morning she had found defendant no.1 at the spot with labourers who told plaintiff that he was the owner of plot in question. If that is so, then plaintiff should have known that defendant no.1 had challenged her title over suit plot in question. In such situation, plaintiff should have filed suit for declaration thereby declaring herself to be owner of suit plot in question by arraying defendant no.1 only. Plaintiff did not do so. Infact, plaintiff filed suit for permanent injunction only on 02.04.2004 against defendant no.1 & 2 praying that defendant no.1 be restrained from interfering her peaceful possession in suit plot in question and from carrying out any construction over said plot. Infact plaintiff did not seek the said relief in this suit, which made her plaint incomplete. Since her title was challenged by defendant no.3, on and around 22.03.2004, so, plaintiff should have filed suit for Shanti Devi Vs Prem Chand & Ors. Page No. 17 / 28 declaration with respect to her ownership rights. Instead of seeking said relief, she sought relief of permanent injunction. So, by not claiming relief of declaration plaintiff relinquished her right to claim relief of declaration, as per the mandate of Order 2 Rule 2 CPC. This suit was therefore, barred by Order 2 Rule 2 CPC.
31. Plaintiff had claimed that defendant no.1 had used pressurizing tactics over police and over property dealers Kannu Tyagi, Ram Singh, Sri Bhagwan and others, so that plaintiff could withdraw her claim over suit plot in question by receiving money she had spent. The said averments were bald in nature as they were not supported by any proof. They were vague in nature also as they lacked specific details.
32. Moving further, plaintiff had stated in her pleadings and evidence that defendant no.1 had produced one GPA, agreement to sell dated 05.03.2004 in the previously instituted suit claiming himself to be owner of land measuring 250 sq. yds which he had allegedly purchased from one Shri Kishan. Later on as per plaintiff, defendant no.1 had brought defendant no.3 in the said litigation who had claimed that he had purchased property measuring 130 sq. yds vide GPA, agreement to sell dated 24.03.2004. Plaintiff claimed that topography of the plot in question was different in title documents of defendant no.1 & 3. She also claimed that defendant no.1 had allegedly purchased suit plot in question from defendant no.4 on 04.03.2004 and defendant no.3 had purchased the suit plot in question from defendant no.1 on 22.03.2004. Defendant no.4 had purchased the said plot from defendant no.5 and Shanti Devi Vs Prem Chand & Ors. Page No. 18 / 28 defendant no.5 had purchased the suit plot in question from defendant no.6. It was the claim of plaintiff that all the said chain of sale and purchase of plot in question by defendants was illegal. Once such claim was raised by plaintiff, she should have sought relief of declaration in this suit to the effect that the said title documents of the defendants should be declared null and void. Surprisingly, no such relief was sought by plaintiff in this suit which made the case of plaintiff inconsequential.
33. Apart from that plaintiff had claimed in her pleadings and evidence that defendants and local property dealers were involved in land grabbing in the locality where suit plot in question located. As per plaintiff, defendants used to induce the innocent people by alluring them to purchase vacant plots and later on they would threat those innocent buyers. Again said averments were bald in nature as same are bereft of any specific details which I did not believe to be true.
34. Lastly, plaintiff had stated in the plaint that defendant no.1 to 3 are necessary parties. Further, she claimed defendant no.1 & 3 had illegally taken possession of suit plot in question from plaintiff. In such situation, defendant no.1 & 3 were necessary parties. Rest of the defendants as such had no role to play. More so where, plaintiff did not seek any relief of declaration with respect to the title documents of rest of the defendants.
35. The net result is that plaintiff had not filed a proper suit based on specific details. Her suit was improbable and illegal in nature. This Shanti Devi Vs Prem Chand & Ors. Page No. 19 / 28 did not help the cause of plaintiff.
36. In her evidence, plaintiff had examined herself only as PW1. She did not remove aforesaid shortcomings in her case which made her examination-in-chief untrustworthy. In her cross-examination plaintiff deposed that she had no complaint against defendant no.2. If that is so, then I failed to understand as to why she had arrayed defendant no.2 in this case and had sought relief against him which created doubt regarding bonafide of plaintiff in moving the Court.
37. Moving further, in her cross-examination plaintiff deposed that defendant no.2 had not supplied title documents of suit plot in question and kept on assuring plaintiff that he would provide the same to her. The said deposition indicated that plaintiff simply kept on believing the version of defendant no.2 without any basis which was highly improbable and reasonable.
38. Further, plaintiff had deposed that defendant no.3 had forcibly taken possession of suit plot in question in March but she did not remember the other details which improbablised the fact that defendant no.2 had taken possession of suit plot in question illegally. Coupled with the same, she deposed that defendant no.3 had not collected the building material in her presence in suit plot in question and she had not found anybody including defendant no.3 at suit plot in question when she reached at suit plot in question after receiving telephonic call from his neighbour. Her whole story regarding defendant no.3 taking illegal Shanti Devi Vs Prem Chand & Ors. Page No. 20 / 28 possession of suit plot in question was thus based on hearsay fact which I did not find it probable. There is no evidence on record which linked defendant no.3 with illegally possession of suit plot in question as was claimed by plaintiff. Coupled with the same, plaintiff had claimed that defendant no.3 had installed a gate and constructed boundary wall, toilet and constructed a tin shed on the backside wall of suit plot in question but no documentary proof was filed in this regard. As such said construction was allegedly made at the night when plaintiff received a telephonic call from her neighbour. The said deposition was highly improbable. Ordinarily, such kind of construction cannot be constructed in such a short period. Plaintiff as such failed to probablise her case based on said claim.
39. The net result is that testimony of plaintiff did not help her cause as her testimony was untrustworthy and improbable.
40. This brings to the documents which plaintiff had filed.
41. Plaintiff had filed site plan Ex PW1/1 which was bereft of specific details of length and breadth of suit plot in question and location of said plot. No executable decree can be passed on the said site plan which made the said site plan inconsequential. Therefore, I discarded it accordingly.
42. Plaintiff had relied upon her complaint Ex PW1/D3/1 which he referred a Mark A. In the said complaint she referred plot in question Shanti Devi Vs Prem Chand & Ors. Page No. 21 / 28 being situated in khasra no. 136/12/2 which was contrary to the site plan Ex PW1/1 wherein said plot was located in khasra no. 136/12/2/2. The specific details in the said complaint as such did not mention in pleadings and evidence of the plaintiff which improbablised the case of plaintiff.
43. Plaintiff relied upon her complaint Mark B in which she referred suit plot in question measuring 130 sq. meter. Again as per pleadings of plaintiff said plot was admeasuring 130 sq. yds. The said discrepancy regarding non uniform measurement of suit plot in question, improbablised the case of plaintiff. It made the case of plaintiff untrustworthy. I discarded the said complaint accordingly.
44. Plaintiff relied upon GPA Ex PW1/2 allegedly executed by defendant no.3 in her favour. The said GPA was undated. It was witnessed by a person namely Ram Singh S/o Budh Singh. The signature of said witness did not match the signature as made in Ex PW1/3 and receipt Ex PW1/5. Infact I failed to understand as to why signatures of the said witness were made with faded blue ink whereas linage and address of said witness were made with dark blue ink. The said doubt was never cleared by plaintiff in her testimony. Further, receipt Ex PW1/5 was undated as a specific date July, 1991 was missing. Coupled with the same I find from my bare eyes that signature of defendant no.3 made in GPA Ex PW1/2, agreement to sell Ex PW1/3, Affidavit Ex PW1/4 and receipt Ex PW1/5 were not uniformly made. There was evident discrepancy in the manner line was drawn over the Shanti Devi Vs Prem Chand & Ors. Page No. 22 / 28 name of defendant no.3 and the manner in which alphabet in Hindi language were made. So, I conclude that those documents were not executed by defendant no.3 in ordinary course of business and were forged in nature.
45. The net result is that plaintiff did not get any right, title or interest based on documents Ex PW1/2 to Ex PW1/5. More so where, defendant no.3 did not disclose in those documents as to on what basis he declared himself to be owner of suit plot in question.
46. In the light of aforesaid appreciation I find that as such plaintiff lacked right, title or interest over suit plot in question. If that is so, then she was not entitled to the reliefs of possession and permanent injunction as prayed by her, as those reliefs emanates from the title of plaintiff over suit plot in question.
47. In the wake of aforesaid conclusion, plaintiff failed to prove issue no. 3 & 4. Those issues were rightly decided by Ld. Trial Court.
48. This brings to the defence of defendant no.2 & 3.
49. So far as, defendant no.2 is concerned, he had claimed in his written statement that he was neither owner nor person in possession of suit plot in question. He also stated that he was owner of plot admeasuring 230 sq. yds. Out of which he sold 130 sq. yds to plaintiff and remaining portion of 100 sq. yds to Rashmi. In the wake of said Shanti Devi Vs Prem Chand & Ors. Page No. 23 / 28 reply, I find that he was not necessary party in present suit. He was wrongly impleaded in this case. More so where, plaintiff in her cross- examination admitted that she had not filed any complaint against defendant no.2. Therefore, suit was bad for mis-joinder of parties. Coupled with the same, I find that defendant no.4 to 7 were neither necessary parties nor proper parties. Thus, defendant no.2, 4 to 7 were not necessary parties in this matter. Suit was bad for mis-joinder of parties. Issue no.1 was rightly decided by Ld. Trial Court.
50. So far as defendant no.3 is concerned, he had claimed that plaintiff has not disclosed material facts to the Court based on which issue no.2 was settled by Ld. Trial Court. In support thereof, defendant no.3 stated that initially Dev Dutt S/o Ram Singh owner of land measuring 2 bighas 2 biswas out of Kh. No. 136/12/2/2. Out of said land he transferred 250 sq. yds to Sh. Krishan Gopal S/o Sh. Dungar Mal Maheshwari and therefore, name of Krishan Gopal was entered into revenue record. Subsequently, Krishan Gopal sold his 250 sq. yds to Rekha vide registered GPA, agreement to sell, affidavit, receipts etc duly notarised. Subsequently, Rekha sold the said land to Sh. Srikrishan on 12.09.1988 and Srikrishan received the possession of said land. Rekha had executed GPA, agreement to sell, affidavit, receipt etc. Srikrishan further sold his land measuring 250 sq. yds to abovesaid Prem Chand Jain S/o Sh. Chhotu Ram on 05.03.2004 vide GPA, agreement to sell, affidavit etc. Sh. Prem Chand Jain sold the land measuring 130 sq. yds to defendant no.3 and that is how defendant no.3 came in physical possession of land forming suit plot in question. He also claimed that suit Shanti Devi Vs Prem Chand & Ors. Page No. 24 / 28 property consists of one room, joint latrine bath and four walls, in support thereof, he filed site plan.
51. By way of aforesaid averments defendant no.3 had set up parallel case based on his title over suit plot in question. Those averments could have been appreciated, once defendant no.3 had preferred counter claim or issue of title of defendant no.3 was settled in this case. None of the said legal proceedings took place and therefore, aforesaid averments were inconsequential.
52. Defendant no.3 had examined certain witnesses which I am appreciating in my subsequent paragraphs.
53. He examined DW1 Sh. Suraj Bhan, Patwari, from SDM Civil Lines, North who placed on record Khata Khatoni bearing no. 782/629 for the year 1993-04 of land bearing Kh. No. 136/2/2/2(2-12) land situated at Revenue Estate of Village Burari, Delhi. As Ex DW1/1 (colly). The said record therefore was a revenue record. Revenue record as such did not give any right, title or interest of ownership as per judge made laws, to any person. Therefore, said record did not give title to defendant no.3 over suit plot in question. More so where, DW1 deposed that he had no knowledge as to who was in possession of land falling in said khasra number whose record he had brought and where he did not file any record as to who was the owner of said khasra number. Further, this witness deposed that there was no record after 1993-94 regarding property in question being transferred in whose name and at what time.
Shanti Devi Vs Prem Chand & Ors. Page No. 25 / 28So, his testimony did not probablise case of defendant no.3.
54. Defendant no.3 had examined himself as DW3. He deposed in his affidavit Ex DW3/A that he had purchased suit property i.e land measuring 130 sq. yds out of khasra no. 136/12/2/2 from previous owner Prem Chand vide GPA, Will, receipt, affidavit all dated 24.03.2004 after paying Rs.40,000/- . As such he did not file any documents which proved that he had Rs.40,000/- with him at the relevant time which he had paid to Sh. Prem Chand. He did not file his bank statement or the bank statement of Sh. Prem Chand showing the said transaction. It made the case of defendant no.3 improbable. Moving further, in his cross- examination, he deposed that GPA Ex PW3/7 did not bear the signature of Prem Chand. He also admitted that in Ex DW3/7 signature of seller and purchaser alongwith number of property was absent. Similarly, he deposed that agreement to sell Ex DW3/8 was not having the number of the property, measurement, sale consideration. He also deposed that there was no sale deed in favour of Prem Chand from him he allegedly purchased suit plot in question. In the light of said deposition, I find that documents relied by defendant no.3 were not free from doubts. In such situation, defendant no.3 should have examined Prem Chand. The said executant was not examined. Infact defendant no.3 deposed in his cross- examination that he has no knowledge when he had met Prem Chand lastly. In such circumstances, due execution of documents by Prem Chand in favour of defendant no.3 became doubtful.
55. Coupled with the same, defendant no.3 was having no precise Shanti Devi Vs Prem Chand & Ors. Page No. 26 / 28 knowledge with regard to discrepancy in the gali surrounding suit plot in question. Thus, he failed to prove that his defence was probable and the fact that said defence was made on material facts. Therefore, by not disclosing those facts plaintiff did not do any mistake.
56. Coupled with the same, defendant no.3 in his cross- examination deposed that he was having no knowledge that Krishan was ever in possession of suit plot in question or whether Prem Chand remained in possession of suit plot in question. He did not know as to whether Rekha was residing in same locality, where plot in question was situated and he did not know Dev Dutt. As such, he failed to prove based on said deposition, that suit plot in question changed hands and therefore, whole chain of events regarding transfer of title of suit plot in question from one person to other as deposed by defendant no.3 was not probablised by him. Thus, I did not believe his testimony to be trustworthy and reliable.
57. Defendant no.3 examined DW3B Sh. Satish Kumar, s/o Suraj Bhan, LDC, Record Room (Civil), Tis Hazari Courts, Delhi who had brought record pertaining to suit no. 74/04 titled as "Shanti Devi Vs Prem Chand" as Ex DW3/B/1. I have already appreciated the relevance of said record in my previous paragraphs which need no repetition.
58. Lastly, defendant no.3 examined Ex DW3C Jugraj, UDC from Office of Sub Registrar, Pitam Pura-6A who had placed on record documents executed by Prem Chand Jain S/o Sh. Chhotu Ram R/o Shanti Devi Vs Prem Chand & Ors. Page No. 27 / 28 55/13, Samalakha Mandi, Panipat, Haryana as GPA of Sh. Sri Kishan in favour of Sh. Jai Bhagwan. Those documents are Ex DW3/1 & Ex DW3/2. The said documents were inconsequential in the wake of fact that defendant no.3 had not filed counter claim based on relief of declaration of him being owner of suit plot in question for which said documents could be appreciated.
59. The net result is that defendant no.3 failed to prove the fact stated by him in written statement amounting to material facts. Therefore, issue no.2 was not proved by defendant no.3.
60. So based on aforesaid appreciation I find plaintiff failed to prove case on the basis of preponderance of probabilities as per mandate of 101 of Evidence Act. Ld. Trial Court rightly dismissed the suit of plaintiff. Accordingly, present appeal stands dismissed.
61. Decree sheet be prepared accordingly.
62. Trial Court record be sent back alongwith copy of this judgment.
Announced in the open court
[PRASHANT SHARMA]
Dated : 07.04.2021 ADJ-05, WEST DISTRICT
TIS HAZARI COURT, DELHI
Shanti Devi Vs Prem Chand & Ors. Page No. 28 / 28