Delhi District Court
Jai Kishan vs Sh. Pawan Goel on 8 April, 2013
IN THE COURT OF Ms. SUKHVINDER KAUR, ADDL DISTRICT
JUDGE III, ROHINI COURTS: DELHI
Suit No. 12/11
Jai Kishan
S/o Shri Maru Ram
Permanent R/o Village & Post Office Nathupur,
District Sonipat, Haryana ............Plaintiff
Versus
1. Sh. Pawan Goel
S/o Shri Ishwar Chand Goel
R/o Village & Post Office Thanauri Mandi
District Sangrur, Punjab
2. Sh. Rakesh Kumar
S/o Sh. Khajan Singh
R/o H.No. 196/6, Near Post Office,
Bawana, Delhi.
3. Sh. Anil Kumar
S/o Sh. Kewal Krishan
R/o Shiv Pur Colony,
Ambala Cantt, Haryana
Suit No. 12/11 Page 1 of 23
4. SHO, P.S. Narela
Delhi110040
5. Sh. Ishwar Chand Goel
S/o Late Karta Ram Goel
R/o Village and Post Office Khaneuri Mandi,
Distt. Sangrur, Punjab
6. Sub. Divisional Magistrate (Narela)
B.D.O. Office Complex, Alipur,
Delhi110036 .......Defendants
Suit filed on : 12.04.2010
Judgment on : 08.04.2013
JUDGMENT
1. Plaintiff has filed the present suit for declaration, possession, permanent and mandatory injunction thereby praying for a decree of declaration in his favour and against the defendants thereby declaring that plaintiff is lawful owner of property bearing No.5A, consisting of one room and boundary in Khasra No. 23/2, situated in the area of Village Suit No. 12/11 Page 2 of 23 Narela, Gali No.10, Safiabad Raod, Priyanka Vihar, Delhi as shown in red colour in site plan (hereinafter referred to as suit property) and that he was in actual possession of same till 04.02.2010. A decree in favour of plaintiff and against defendant no.1 & 5 in respect of the suit property with its existing superstructure as shown in red and yellow color in the site plan has also been prayed along with a decree of mandatory injunction against defendant no.1 and 4 thereby directing them to handover belongings as described in para9 of the plaint to the plaintiff and further directing defendant no.6 to handover peaceful possession of the suit property to the plaintiff after the suit is decreed in favour of the plaintiff. It has also been prayed for issuing directions to defendant no.1 & 5 to bring the suit property in its original form after demolishing the structure as shown in yellow colour in the site plan and also for passing a decree of permanent injunction against defendant no.1 & 5 thereby restraining them from creating any third party interest in the suit property. Suit of the plaintiff is that the plaintiff is the Suit No. 12/11 Page 3 of 23 owner of the suit property more specifically shown in the red colour in the site plan annexed with the plaint which was purchased by plaintiff from defendant no.2 after paying the sale consideration and execution of relevant title deeds such as GPA, agreement to sell, Will, receipt, possession letter all dated 25.01.2010 duly attested by notary public. Defendant no.2 had handed over possession of suit property to plaintiff and after that the plaintiff had put his belongings in the said room of the suit property and put his lock on the same and also let out the remaining portion within the four walls of property to his known person who was occupying the said property excluding the said room and using the same as godown for shop goods uninterruptedly without any hindrance or interference of any other person. On 04.02.2010 while the plaintiff was at his native village, nephew of the plaintiff namely Jaiveer Singh and his friend Hari Chand went to his tenant to deliver the marriage card of the nearby relation of the plaintiff. After delivering the marriage card to the tenant, they went to see the suit Suit No. 12/11 Page 4 of 23 property but they found that some other person was present there. Therefore they returned back at the shop of the tenant namely Laxman and asked about the person who was present in the suit property. The tenant of the plaintiff explained that defendant no.1 had broken the locks of the room of the suit property where the belongings of the plaintiff were kept and took away same as well as the belongings of the tenant in the presence of SHO concerned and further he had also thrown the tenant out of the suit premises with the help of his associates, Gunda elements and police officials hardly an hour before and extended the threats not to visit the suit property or to make any complaint against the said illegal act of trespassing, stealing and dispossessing forcibly from the suit premises. The tenant also told that he was trying to call the plaintiff telephonically but could not contact him. Thereafter the said incident was explained by Jaiveer to plaintiff on his mobile phone and the plaintiff along with his family members reached the suit property and a complaint to PCR was made by his son. Defendant no.1 along with his Suit No. 12/11 Page 5 of 23 associates on the arrival of plaintiff and his family members, under the influence of liquor, started abusing the plaintiff and his family members and extended the threats to cause damage to their life. In order to avoid any mishappening, the plaintiff gave phone call to PCR and the local police came at the spot along with defendant no.4 who instead of taking appropriate action against defendant no.1 and his associates, started threatening him using abusive language against plaintiff and his family members in collusion with defendant no.1 and one police official namely Hari Prasad kicked the plaintiff and asked him to leave the suit property. Thereafter defendant no.4 called the plaintiff in police station and after humiliating the plaintiff, he turned off the plaintiff by extending threats not to make any complaint against defendant no.1. The plaintiff made a hand written complaint to DCP, Outer on 05.02.2010 against the illegal acts of defendant no.1 & 4 but no action was taken till the date. After taking the illegal possession the defendant further started making illegal construction in the suit property and Suit No. 12/11 Page 6 of 23 illegally raised structure without roof of two rooms besides already existing room of the plaintiff. On 12.02.2010 defendant no.1 threatened to sell out the suit premises to any third person or otherwise create third party interest on the same. When the concerned police did not take any action against defendant no.1 and his associates, finding no other option the plaintiff filed a criminal complaint U/s 145 of the CrPC against defendant no.1 before ld SDM, Alipur Delhi. After considering the facts and circumstance, Ld SDM was pleased to seal the suit property vide its order dated 11.02.2010. Thus the suit property now is under possession and control of SDM Narela, BDO Complex at Alipur and none of party is in possession of the suit property. The plaintiff having no other alternate remedy has filed the present suit.
2. Suit of the plaintiff has been contested by defendant no. 1 & defendant no. 5. Defendant no. 2,3 & 4 opted not to file the written statement after appearance in the court . Defendant no. 2 to 4 were proceeded exparte vide orders dt. Suit No. 12/11 Page 7 of 23 27.10.2010. Defendant no. 6 also opted not to contest the case after being duly served. He was also proceeded ex parte vide orders dt. 10.12.2010. Defendant no. 1 in his w/s has taken the preliminary objection inter alia that the suit of the plaintiff is without any cause of action and plaintiff not come to the court with clean hands. It is alleged that plaintiff in collusion with defendant no. 2 & 3 has fabricated false documents pertaining to property of defendant no. 5. Objection has also been taken that suit is bad for mis joinder and non joinder of necessary parties and defendant no. 5 is the owner and in actual physical possession of the suit property after having purchased the suit property for a consideration of Rs. 45,000/ vide agreement to sell, receipt, Will etc executed on 3.10.02 from Tarsen Chander s/o Kalu Ram, R/o Village and PO Kundli, Delhi91 and has been enjoying the actual physical possession of the property since the day of its purchase being its lawful owner. On merits it is denied that the plaintiff is the owner of suit property and reasserted that suit property exclusively belongs to Suit No. 12/11 Page 8 of 23 defendant no.5, father of defendant no.1 and plaintiff in collusion with defendant no.2 and 3 has fabricated false documents. The other averments made in the plaint are denied. It is denied for want of knowledge that plaintiff has lodged any complaint with the DCP. The proceedings U/s 145 Cr.PC and order dt. 11.2.2010 passed by defendant no. 6 has not been denied. It is stated that infact the plaintiff has filed a false complaint U/s 145 Cr. PC against defendant no. 1 without impleading the actual owner i.e. defendant no. 5 knowing this fact that defendant no. 5 is the legal owner and is in actual physical possession of the land on the day of filing the said false complaint. It is stated that plaintiff had never come in possession of suit property and had illegally and unlawfully tried to tress pass in the suit property belonging to defendant no. 5 against which an FIR was lodged bearing no. 55/2010 U/s 448 PS Narela Delhi on 9.2.2010. It is stated that no cause of action ever arose in favour of plaintiff and hence prayed for dismissal of the suit. Defendant no. 5 also in his preliminary objection has taken Suit No. 12/11 Page 9 of 23 the similar preliminary objection and asserted that the present suit is a collusive suit between plaintiff and defendant no. 2 and defendant no. 3 because defendant no. 2 & 3 with collusion of plaintiff have forged false and fabricated documents pertaining to the property of the defendant no. 5 with a malafide intention to grab the property as defendant no.3 had already disposed off the suit property alongwith other plots to Sh. Tarsem Chand vide agreement to sell dt. 2.6.99 for a consideration of Rs. 2,95,850/ and defendant no. 3 also executed authority letter dt. 18.10.89 in favour of Tarsem Chand in respect of his properties including the suit property. Sh. Tarsem Chand has disposed off the property in dispute for a consideration of Rs. 45,000/ vide GPA, agreement to sell, affidavit, Will, deed of Will etc. executed on 3.10.2002 in favour of defendant no. 5. defendant no.3 having an evil eye on the suit property belonging to defendant no. 5 filed a false suit against defendant no. 5 titled Anil Kumar Sharma Vs. Ishwar Chand Goel bearing suit no. 649/08 in respect of the suit property Suit No. 12/11 Page 10 of 23 where defendant no. 5 had filed the detailed written statement certified copy of which is Ex.D5W1/8 thereby stating that defendant no. 5 is the owner and in possession of suit property. Thereafter defendant no. 3 had withdrawn the suit on 2.4.09 in view of the apprehension to loose the case and thereafter defendant no.3 with malicious and malafide intention executed false and fabricated documents in respect of suit property in favour of defendant no. 2 and defendant no. 2 further executed false and fabricated documents in favour of the plaintiff, who filed the present false suit on the basis of forged and fabricated documents with a malafide intention to grab the suit property. Since the suit had been withdrawn unconditionally by Shri Anil Kumar, it is assumed that he did not dispute that defendant no.5 was in possession of suit property meaning thereby that defendant no.5 was in possession even before the execution of documents in favour of the plaintiff. On merits also it has been denied that plaintiff is the owner of suit property and emphasised that he is the actual Suit No. 12/11 Page 11 of 23 owner of the property and have been enjoying physical possession of the same after having purchased the same for a consideration from Sh. Tarsem Chand. It is denied that defendant no. 2 had handed over the possession of the suit property to plaintiff and after that defendant put his belongings in the suit property and put his lock in the same and further let out the remaining portion to his known person. It is stated that defendant no.2 was neither owner nor ever came in possession of the suit property hence the question of handing over the possession by defendant no.2 to plaintiff does not arise at all. It is stated that plaintiff has concocted a false story. It is further stated that defendant no. 3 had filed a false suit bearing No. 649/08 title Anil Kumar Vs Ishwar Chand goel which was dismissed as withdrawn on 02.04.09 and thereafter defendant no.3 executed false and fabricated document in favour of defendant no.2 who himself tried to trespass into suit property against which defendant no.5 had filed complaint case titled Ishwar Chand Vs Rakesh @ Bablu before the court of Shri Sudhanshu Kaushik, Ld Suit No. 12/11 Page 12 of 23 MM, Rohini Courts, Delhi wherein the status report was called by Hon'ble court and SHO filed a status report in which the possession of defendant no.5 in suit property was established. It is stated that defendant no.5 continued in actual physical possession of suit property being its lawful owner from the date of its purchase till the date the same was sealed i.e. on 11.02.2010 by defendant no.6. The averment regarding trespass of the suit property by defendant no.1 on 04.06.2010 has also been categorically denied. It is stated that during relevant period the complaint case was pending against defendant no.2 who had illegally and unlawfully tried to trespass in the suit property in view of the forged and fabricated documents alleged to have been executed by defendant no.3 in favour of defendant no.2. From the status report filed in the court also the possession of defendant no.5 was established and in these facts and circumstances, the possession of plaintiff or his tenant in the suit property does not arise at all. Filing of complaint by the plaintiff before the DCP or any other authority has been Suit No. 12/11 Page 13 of 23 denied for want of knowledge and emphasized that even if any such complaint was filed, the same was filed for creating false evidence in his favour. Defendant no.5 also filed counter claim in respect of suit property bearing No.18 and asserting that plaintiff in collusion with defendant no.2 and 3 has forged and fabricated documents thereby giving fictitious and wrong number to suit property as plot No.5A with malafide intention to grab the property of defendant no.5.
3. In the replication to the WS filed by defendant no.1 & 5, the plaintiff has controverted the averments made in the WS and reasserted and reiterated the contents of his plaint.
4. On the pleadings of the parties following issues were framed for consideration on 04.01.2011:
i)Whether the suit of the plaintiff is liable to be rejected for want of cause of action ?OPD
ii)Whether the plaintiff is guilty of suppression and concealment of material facts? If so, its effect? OPD
iii)Whether the suit is bad for misjoinder of parties? If so, its effect?OPD Suit No. 12/11 Page 14 of 23
iv)Whether the plaintiff is entitled to decree of declaration of suit property ?OPD
v)Whether the plaintiff is entitled to decree of possession with respect of suit property?OPP
vi) Whether the plaintiff is entitled to decree of permanent injunction as prayed?OPP
vii) Relief.
5. In order to establish his case the plaintiff has filed his affidavit in evidence which has been tendered as Ex. PW1/A. He also filed the affidavits of Shri Rakesh Kumar , Shri Jaiveer, Shri Laxman and Sh. Hari Chand which have been tendered as PW2/A to Ex. PW5/A respectively. The plaintiff also examined Sh. Anil Kumar, the recorded Bhumidar as PW6. On the other hand on behalf of defendant affidavit of defendant no. 1 and defendant no. 5 has been filed in evidence which has been tendered as Ex. D1W1 and D5W1 respectively. The defendant no. 5 also examined Sh. Mukesh Kumar, LDC Record Room Civil, Tis Hazari Court as D5W2, Sh. Vinod Gupta as D5W3 and Abhay Prasad Ahlmad from the court of Sh. Deepak Suit No. 12/11 Page 15 of 23 Vasan, Ld. M.M. as D5W4, Sh. Tarsem Chand as D5W5, HC Ramesh Kumar as D5W6, Mohd. Noor Alam as D5W7, Sh. Gyanender Rana, Patwari SDM as D5W8.
6. I have thoroughly gone through the testimony of witnesses and perused the record. My findings on various issues are as under: Finding on Issue No.3
7. Defendant no. 1 in his written statement has taken a plea that suit is bad for mis joinder of parties as the plaintiff has intentionally, deliberately and wrongly impleaded defendant no. 1 as a party in the present suit knowing the fact that defendant no. 5 is lawful owner and was in actual physical possession of the property since the day of its purchase till the date when the same was sealed by defendant no. 6. Defendant no. 1 was impleaded with the intention to get a favourable order in the absence of real owner. It may be pointed out that in view of the objection taken in this regard, the plaintiff impleaded Sh. Ishwar Chand Goel as defendant no. 5. So far as the impleadment of defendant no. 1 is concerned, the plaintiff has Suit No. 12/11 Page 16 of 23 specifically made an averment that on 4.2.2010 defendant no. 1 has illegally taken the possession of suit property belonging to plaintiff and also stolen the belongings of plaintiff. Thus defendant no. 1 is a necessary party. The suit of the plaintiff is thus cannot be said to be bad for mis joinder of parties. Issue no. 3 is thus decided in favour of plaintiff and against the defendant.
Finding on Issue No.1,2 & 4
8. The plaintiff has prayed for passing a decree of declaration in his favour and against the defendant thereby declaring that plaintiff is lawful owner of the suit property and was in actual possession of the same till 4.2.2010. To establish his title in the suit property the plaintiff has relied on the unregistered GPA dt. 9.3.2009, agreement to sell dt. 9.3.2009, affidavit dt. 9.3.2009, receipt dt. 9.3.2009 and rectification deed dt. 22.1.2010 executed by Sh. Anil Kumar i.e. defendant no. 3 in favour of Sh. Rakesh Kumar i.e. defendant no. 2 and unregistered GPA dt. 25.1.2010, agreement to sell dt. 25.1.2010, affidavit dt. 25.1.2010, receipt dt. 25.1.2010, Suit No. 12/11 Page 17 of 23 possession letter dt. 25.1.2010 and deed of Will dt. 25.1.2010 purportedly executed by defendant no. 2 in favour of plaintiff. So far as the relief of declaration of ownership is concerned, the unregistered documents purportedly executed by defendant no. 3 in favour of defendant no.2 and defendant no.2 in favour of plaintiff do not confer any title over the suit property in favour of plaintiff. So far as the declaration with regard to possession is concerned, the plaintiff has examined defendant no. 2 as well as defendant no. 3, who purportedly had executed the documents, his nephew Sh. Jai Veer who allegedly alongwith his friend Hari Chand had visited the suit property and Sh. Laxman to whom the plaintiff purportedly had let out the remaining portion of the suit property. The testimony of PW3 Sh. Jai Veer, PW4 Sh. Laxman and PW5 Sh. Hari Chand who have been examined in chief on 22.1.2011 and did not appear for their cross examination despite several opportunities however cannot be read in evidence. PW1 in his testimony has mainly reiterated the contents of plaint. PW2 and PW6 have also supported the testimony of PW1. PW6 admitted in his cross examination that Suit No. 12/11 Page 18 of 23 he had filed the suit against defendant no. 5 vide suit title Anil Kumar Sharma Vs. Ishwar Chand Goel vide suit no. 449/08 in respect of suit property. He also admitted that he had withdrawn the said suit on 2.4.2009 and expressed his ignorance regarding filing of any written statement by defendant no. 5 in the said suit. DW5 has filed the certified copies of the suit for perpetual injunction in respect of plot no. 5, khasra no. 23/2 situated in Revenue Estate of village Narela (i.e. the suit property herein) which is Ex. PW6/D5/4 as well as written statement filed by defendant no. 5 in the said suit which is Ex. D5W1/8. In the said suit filed by defendant no. 3 against defendant no. 5 defendant no. 3 has admitted that he had sold the number of plots to different persons and eight plots were sold by him to Sh. Tarsem Chand Kansal. The defendant no. 5 in his written statement dt. 22.12.2008 has categorically taken the stand that he alongwith his family members are in possession of the suit property since the day they bought it. It is denied that the plaintiff i.e. defendant no. 3 herein is the owner and is in the possession of the suit property and pleaded that defendant had Suit No. 12/11 Page 19 of 23 bought the same from Sh. Tarsem Chand Kansal on 3.10.08. The said suit was dismissed as withdrawn by defendant no. 3 unconditionally vide orders dt. 2.4.09 meaning thereby that defendant no. 3 did not even dispute the averments made in the written statement regarding the possession of the defendant no. 5 in the suit property. PW6 i.e. Defendant no.3 even in his testimony recorded in evidence though deposed about execution of documents in favour of defendant no.2, however he has not made even a whisper regarding delivery of possession to defendant no.2 i.e. PW2. PW2 though testified that while executing the documents regarding transfer of property in favour of the plaintiff, the plaintiff was also put in possession of the suit property, his testimony in this regard however does not inspire confidence in view of the complaint case filed by defendant no.5 against defendant no.2, i.e. PW2 in respect of plot No.8 out of khasra No. 23/02 stated to be renumbered as plot No.5 titled 'Ishwar Chand Vs Rakesh @ Bablu', certified copy of which is Ex. D5W1/10 which is pending in the court of Shri Sudhanshu Kaushik, Ld MM. In the said complaint case filed on Suit No. 12/11 Page 20 of 23 10.06.2009, it is alleged that the suit property earlier remained in possession of Shri Tarsem Chand Kansal and thereafter with Late Shri Suraj Bhan Goel, the real brother of complainant and now the complainant is in possession of said property after having purchased it from Tarsem Chand Kansal on 03.10.2002. It is also alleged in complaint that since around one month, Rakesh @ Bablu had been criminally intimating the complainant and his son Pawan Goel to kill them unless they transfer the property to them at throw away prices. Rakesh @ Bablu also threatened to forge documents of the suit property and said Rakesh @ Bablu during the last one month had also made several attempts with his hooligans to criminally trespass in the suit property however with the timely intervention of the police upon the complaint and the neighbors, they had to run away. Ld MM also called a status report from the concerned SHO and the SHO filed the report, the certified copy of which is Ex. D5W1/11. From the status report dated 02.01.2010 also it is revealed that defendant no.5 was in possession of the plot measuring 260 sq. yds out of Khasra No. 23/2 situated at Village Narela which is Suit No. 12/11 Page 21 of 23 surrounded by boundary wall and one room had been constructed by them. Thus there is sufficient evidence on record to establish that defendant no.5 was in possession of the suit property on 02.01.2010. In view of the said position, the claim of the plaintiff that he was delivered the possession of the suit property by defendant no.2 on 25.01.2010 does not inspire confidence. Thus the plaintiff has failed to establish that he was in possession of suit property from the date of transaction i.e. 25.01.2010 till 04.02.2010 as claimed. The plaintiff is thus not entitled even for the declaration to the extent that he was in actual possession of the suit property till 04.02.2010 as prayed. In view of the above discussion, the suit of the plaintiff is also without any cause of action. So far as the issue with regard to suppression of material facts is concerned, ld counsel for defendants has not argued as to how the plaintiff has concealed the material facts. In view of above discussion, issue no.1 and 4 are decided against plaintiff and in favour of defendant no.1 & 5 and issue no.2 is decided against the defendant no.1 & 5.
Suit No. 12/11 Page 22 of 23 Finding on Issue No.5
9. As already discussed, since the plaintiff has failed to establish his title over the suit property and to prove that he was ever in possession of the same, he is not entitled to decree of possession as prayed. Issue no.5 is decided against the plaintiff and in favour of the defendant no.1 & 5.
Finding on Issue No.6
10. In view of my findings on above issues, since the plaintiff has no right, title or interest in the suit property, he is also not entitled to decree of permanent injunction as prayed. Issue no.6 is also decided against the plaintiff and in favour of defendant no.1 & 5.
Relief.
11.In view of my findings on issue no.1,4,5 & 6, suit of the plaintiff is dismissed. File be consigned to Record Room.
Announced in open court (SUKHVINDER KAUR)
dated 08.04.2013 ADDL. DISTRICT JUDGE:III
ROHINI COURTS: DELHI
Suit No. 12/11 Page 23 of 23
Suit No. 12/11
08.04.2013
Present: None.
Vide separate judgment dictated and announced in the open court, suit of the plaintiff is dismissed. File be consigned to Record Room.
(SUKHVINDER KAUR) ADDL. DISTRICT JUDGE:III ROHINI COURTS: DELHI Suit No. 12/11 Page 24 of 23