Delhi District Court
In Reference vs Sh. Naryan Dutt on 21 December, 2019
IN THE COURT OF MS. MANSI MALIK : CIVIL JUDGE :
NORTH DISTRICT, ROHINI COURTS : DELHI
Suit No. 34709/2016
In reference:
Smt. Bhateri Devi
W/o Late Sh. Kulbir singh
R/o H.No. 1427
Village & P.O. Karala
Delhi110081 ........... Plaintiff
VERSUS
Sh. Naryan Dutt
S/o Sh. Mange Ram
R/o H.No. 299, Bazar Panna
Village & P.O. Karala
Delhi110081 ........... Defendant
Date of Institution : 11.05.2010
Date of reservation of Judgment : 19.12.2019
Date of Judgment : 21.12.2019
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendant for mandatory & of permanent injunction.
CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 1 of 20 FACTS AS PER THE PLAINT :
2. In brief, the facts of the case, as per the plaint are that the plaintiff is the permanent resident of village Karala, Delhi and is residing therein along with her family members. The defendant is also resident of village Karala, Delhi and was the owner of the property bearing no. 71/15, measuring 5 bighas 5 biswas situated in village Karala, Delhi.
3. That the plaintiff on 11.07.2002 purchased a plot of land measuring 200 sq. Yards, measuring 40'x45' out of khasra no. 71/15 situated in village karala, Delhi and abadi known as Utsav Vihar, Delhi110081 from the defendant. The defendant executed an agreement to sell, registered GPA, registered Will, Receipt, Affidavit and Possession Letter in favour of the plaintiff with regard to the above mentioned plot of land.
4. That after the execution of above plot of land, the plaintiff took possession of the land and constructed boundary wall over the said plot. That at the time of selling of the above plot to the plaintiff the defendant told the plaintiff that there is a gali of 20' wide in the south side of the plot and another road of 33' wide in the west side of the plot.
CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 2 of 20
5. That after the documents with regard to the sale purchase of the above mentioned plot were prepared the plaintiff did not give attention to contents of the sale documents, however, in the year 2006 when the plaintiff decided to raise construction over the above plot, the son of the plaintiff asked about the documents of the above plot. The plaintiff handed over the documents to her son Sh. Narender Kumar who after going through the contents of the documents found that in the above documents the khasra number of the land, the dimension of the plot and the size of the gali in the south side has been wrongly mentioned. It is found that in the documents, the khasra no. Has been mentioned at 73/15 in place of 71/15, the dimension of plot has been mentioned as 45'x45' in place of 40'x45' and the size of the gali has been mentioned as 15' instead of 20'.
6. On coming to know about the above said mistakes the plaintiff contacted the defendant and requested him to execute the fresh correct documents with regard to the plot in question. However, the defendant demanded another sum of Rs. 20,000/ from the plaintiff for execution of the fresh correct documents of the above mentioned plot. Though there was no fault of the plaintiff in execution of the wrong documents, however, to avoid further complications, the plaintiff agreed to make the payment of extra CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 3 of 20 amount of Rs. 20,000/ to the defendant.
7. That after the payment of the additional amount of Rs. 20,000/ the defendant executed another corrected set of documents on 27.10.2006 with regard to the above mentioned plot i.e. the registered irrevocable General Power of Attorney, Agreement to Sell, Affidavit, Receipt, possession letter and Will.
8. That in the later documents as executed by the defendant the earlier mistakes were rectified and the khasra no. 71/15 has been shown, the measurement of the plot has also been corrected to 40'X45' and the size of the gali in the southern side of the plot has also been corrected as 20'.
9. That in the southern side of the plot which has been sold by the defendant to the plaintiff there is a gali of 20' and in south side of the plaintiff the defendant also has another plot in his possession.
10.That on 30.04.2010, the younger son of the plaintiff at about 10.00 am visited the plot and was surprised to see that the defendant has raised a wall of about 1.5' in the southern side of the gali of the plot and encroach upon the gali by 5 feet and left the gali of 15 feet only in place of 20 feet.
CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 4 of 20
11.That the plaintiff approached the police a number of times, but the police did not take any action against the defendant for encroaching the public land. That the action of the defendant is illegal and unlawful and is causing injustice to the plaintiff and other residents of the colony. The defendant has no right, title or interest in the gali of 20 feet as situated in the southern side of the plot of the plaintiff.
12.That the defendant despite repeated requests made by the plaintiff is not removing the illegal encroachment and is further tying to raise construction over the foundation/wall already construction. Hence the present suit has been filed.
PRAYER:
13. The following are the prayers of the plaintiff:
(a) A decree for mandatory injunction may kindly be passed in favour of the plaintiff and against the defendant directing the defendant to remove the unauthorized construction/encroachment from the gali measure 20 feet in the southern side of the plot of the plaintiff measuring 200 sq. yards situated in khasra no. 71/15, in the revenue estate of village Karala, Abadi known as Utsav Vihar, Delhi110081.
CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 5 of 20
(b) A decree for permanent injunction may kindly be passed in favour of the plaintiff and against the defendant restraining the defendant, his agents, employees, representatives etc. permanently from encroaching upon the gali measuring 20 feet in the southern side of the plot of the plaintiff measuring 200 sq. yards situated in khasra no. 71/15, in the revenue estate of village Karala, Abadi known as Utsav Vihar, Delhi110081.
(c) Cost of the suit may also be awarded in favour of the plaintiff and against the defendant.
DEFENCE :
14.WS has been filed on behalf of the defendant stating that the present suit of the plaintiff is not maintainable is liable to be dismissed because the plaintiff's suit is based upon the two sets of documents, previous one of 2002 which is registered and second one is unregistered documents of the same plot, but the plaintiff did not mention that the previous documents were registered etc. in the second set of documents and try to byepass the previous registered documents by the second unregistered documents. That there is no mention in the second set of documents that there is some mistake in khasra number and size of the plot in the previous documents.
CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 6 of 20
15. That the plaintiff and her family members have procured fraudulent documents w.r.t. the plot in question and has mentioned the width of the gali as 20' instead of 15' wide. The defendant has signed the documents without going through the contents of the same and only came to know about the fraud of the plaintiff, when the defendant started the construction of the wall of his house after leaving the width of the gali by 15' as per documents.
REPLICATION:
16. Replication has been filed on behalf of the plaintiff wherein the stand taken in the plaint has been reiterated.
ISSUES:
17. Vide order dated 23.07.2011, the following issues have been framed:
(1) Whether the plaintiff is entitled for the decree of permanent injunction, as prayed for? OPP.
(2) Whether the plaintiff is entitled for the decree of mandatory injunction, as prayed for? OPP.
DOCUMENTS & EVIDENCE:
18. In support of the case of the plaintiff, plaintiff has examined CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 7 of 20 herself as as PW1 by way of affidavit Ex.PW1/A and has relied upon the following documents:
(a) Ex.PW1/1 is the copy of the certificate of incorporation of the plaintiff company.
1. Ex.PW1/1 is the photocopy of General Power of Attorney (OSR).
2. Ex.PW1/2 is the photocopy of Deed of Will.
3. Ex.PW1/3 is Agreement to Sell.
4. Ex.PW1/4 is the photocopy of Affidavit.
5. Ex.PW1/5 is the photocopy of Receipt.
6. Ex.PW1/6 is the photocopy of Possession letter.
7. Ex.PW1/7 is the photocopy of Irrevocable general Power of Attorney
8. Ex.PW1/7A is the photocopy General Power of Attorney.
9. Ex.PW1/8 is the photocopy of Agreement to Sell and Purchase.
10. Ex.PW1/9 is the photocopy of Affidavit.
11. Ex.PW1/10 is the photocopy of Receipt.
12. Ex.PW1/11 is the photocopy of Possession Letter.
13.Ex.PW1/12 is photocopy of Deed of Will.
14. Ex.PW1/13 is now deexhibited and marked as Mark 'A' is photocopy of Electricity Bill.
CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 8 of 20
15. Ex.PW1/14 is now deexhibited and marked as Mark 'B' is photocopy of complaint to the SHO PS Kanjhawala, dated 01.05.2010.
16. Ex.PW1/15 is photocopy of complaint to the SHO PS Kanjhawala, dated 07.05.2010.
17. Ex.PW1/16 is photocopy of complaint to the SHO PS Kanjhawala, dated 07.04.2010.
18. Ex.PW1/17 is photocopy of complaint to the SHO PS Kanjhawala, dated 07.05.2010.
19. Ex.PW1/18 is photocopy of complaint to the SHO PS Kanjhawala, dated 07.05.2010.
20. Ex.PW1/19 is photocopy of complaint to the SHO PS Kanjhawala, dated 07.05.2010.
21. Ex.PW1/20 is the photocopy of the site plan.
22. Ex.PW1/21 and Ex.PW1/22 are the Photographs.
23. Ex.PW1/23 is the Newspaper (Punjab Kesari) dated 07.05.2010.
19. In defence, the defendant has examined himself as as DW1 by way of affidavit Ex.DW1/A and has relied upon the following documents:
1. Ex.DW1/1 is the site plan.
2. Ex.DW1/2 is the complaint to DC NW dated CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 9 of 20 04.05.2010.
3. Ex.DW1/3 is the complaint to MM dated 26.07.2010 is deexhibited and now marked as Mark F.
4. Ex.DW1/4 is the complaint to SHO dated 15.07.2010.
5. Ex.DW1/5 is the complaint to Tesildar dated
20.07.2010.
6. Ex.DW1/6 is the complaint to SHO dated 19.07.2010.
7. Ex.DW1/7 is the agreement to sell dated 24.02.2005.
8. Ex.DW1/8 is the affidavit of Sh. Narain Dutt dated 24.02.2005.
9. Ex.DW1/9 is the possession letter.
10. Ex.DW1/10 is the receipt of payment dated 24.02.2005.
20. Further, the defendant has examined Sh. Ashok Kumar as DW2 by way of affidavit Ex.DW2/A and Smt. Yogita as DW3 by way of affidavit Ex.DW3/1.
FINAL ARGUMENTS:
21. Final arguments have been heard at length on behalf of the plaintiff.
ISSUE WISE FINDINGS OF THE COURT: CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 10 of 20 Issue no.1 Whether the plaintiff is entitled for the decree of permanent injunction, as prayed for? OPP.
Issue no.2 Whether the plaintiff is entitled for the decree of mandatory injunction, as prayed for? OPP.
22. As both the issues are interconnected, both of them will be decided together.
23. The onus to prove the aforesaid issues lies on the plaintiff.
24. The burden of proof under Section 101, Indian Evidence Act, 1872 lies upon the person who asserts such facts. Until the person asserting such facts proves his case, the other party does not need to prove his case. Once a party discharges its burden under Section 101 of the Evidence Act then the burden shifts on the other party under Section 103 to prove the particular facts which he asserts in the case.
25. In the present case, the plaintiff has sought a decree of mandatory injunction to direct the defendant to remove the unauthorized construction/encroachment from Gali measuring 20 feet in the southern side of the plot of the plaintiff and a decree of permanent injunction restraining the defendants from CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 11 of 20 encroaching upon the Gali measuring 20 feet in the southern side of the plot of the plaintiff. Therefore, the plaintiff has to firstly establish his right over the gali in dispute in order to be granted any relief qua the same.
26. In order to establish such right, the plaintiff has placed on record GPA, Agreement to Sell, Possession letter, Receipt, Affidavit and Deed of Will (Ex. PW1/1 to Ex. PW1/6) dated 11.07.2002 executed in his name by the defendant. The aforesaid documents Ex. PW1/1 to Ex. PW1/6 are admitted by the defendants and are not in dispute. In the crossexamination of DW1, he has admitted that he executed the documents Ex. PW1/1 to Ex. PW1/6 in favour of the plaintiff.
27. The bone of contention in the present case is the second set of documents GPA, Deed of Will, Agreement to Sell, Possession letter, Receipt and Affidavit etc. dated Ex. PW1/7 to PW1/12 allegedly executed by the defendant in favour of the plaintiff. It is submitted by the plaintiff that by mistake in the documents Ex. PW1/1 to PW1/6, the khasra number was wrongly mentioned as 73/15 instead of 71/15, the measurement of land was wrongly mentioned as 45'x45' instead of 40'x45' and the directions of the property as mentioned in the documents on the south side the CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 12 of 20 width of the gali was wrongly mentioned as 15ft wide instead of 20ft wide.
28. As per the plaintiff, to rectify the abovementioned mistakes a second set of documents was executed by the defendant Ex. PW 1/7 to PW1/12 wherein the khasra number was mentioned as 71/15, the measurement of land was mentioned as 40'x45' and the directions of the property as mentioned in the documents on the south side the width of the gali was mentioned as 20 feet. It is these documents that the defendant alleges have been obtained by fraud. It is stated that the defendant signed the documents without going through the contents and it was only when the defendant started construction on the gali in dispute he came to know about the documents in question wherein the plaintiff has fraudulently obtained his signatures and mentioned the width of the gali as 20 feet instead of 15 feet.
29. At this juncture, it is necessary to refer to section 91 and 92 of the Indian Evidence Act. Section 91, Evidence Act, 1872 stipulates that where the terms of a contract or of a grant or any other disposition of property have been reduced to a form of written document, no evidence shall be given in proof of the terms of such a contract, grant or other disposition of property, CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 13 of 20 except the document itself.
30. The exception to Section 91 is contained in Section 92. Section 92 of the Evidence Act, inter alia, provides that where the terms of a grant or other disposition of property have been proved according to Section 91, no evidence of any oral agreement, or statement shall be admitted, as between the parties to such instrument, for the purpose of contracting, varying, adding to or subtracting from its terms. However, proviso 1 to Section 92, inter alia, permits the proof of any fact which would invalidate any document such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. (Karan Madaan And Others vs Nageshwar Pandey on 26 March, 2014, CS(OS) 1633/2012 and CC 18/2013)
31. In the present case, therefore Section 91 is applicable, as the terms of the disposition of property in favour of the plaintiff by the defendant have been reduced in the form of writing as Ex. PW1/7 to PW1/12 and therefore no oral evidence can be led by the defendant to prove the contents of the document. However, proviso 1 to Section 92 is also applicable to the present case as CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 14 of 20 the defendant has alleged that the signatures on the documents in question were obtained by fraud by the plaintiff. Such allegations of fraud brings the case at hand within the purview of Section 92 but the onus to prove the said allegation of fraud lies on the defendant.
32. The defendant, DW1 in his crossexamination has admitted that documents Ex. PW1/8 to Ex. PW1/12 have been executed by him in favour of the plaintiff. In his affidavit, the defendant states that the plaintiff in collusion with the deed writer has fraudulently and treacherously obtained the signatures of the defendant on the documents dated 27.10.2006 wherein besides the correct khasra number and dimension of the plot they also changed the size of the gali on southern side to 20 feet and consideration amount of Rs.20,000/. It is further stated that the plaintiff has also overwritten on the original documents dated 11.07.2002 which is a clear forgery on the part of the plaintiff. However, it is pertinent to mention here that the defendant has stated in his cross examination that he has neither filed any case/suit challenging the authenticity and validity of the documents executed in favour of he plaintiff since execution of the documents till date of the testimony nor has he made any complaint to any authority regarding the sale documents in question.
CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 15 of 20
33. It is observed here that except bald averments of fraud being played on the defendant whereby his signatures were obtained on the documents in question, no other evidence has been led by the plaintiff to prove the fraud committed on him by the plaintiff. Mere mentioning of fraud in pleadings is not sufficient. The fraud referred to in proviso 1 to Section 92 relates to the execution of the instrument/ document. It is not the defendant's case that he is illiterate or that he was stopped from reading the documents in question. Further, he does not claim that the documents were executed in an intoxicated or unsound state. No other evidence has been led by the defendant to show how his signatures were obtained by fraud on the documents. Therefore, the defendant has failed to prove the factum of fraud as pleaded by him. Further, the fact that the defendant has not challenged the alleged fraudulent documents till date by way of any suit nor any complaint has been filed regarding the fraud also estops him from questioning the documents in dispute.
34. In view of the aforesaid discussion, it can be said that the present case is covered under Section 91 of the Evidence Act as the defendant has failed to bring it within the purview of Section 92 of the Evidence Act. The defendant has admitted the execution of CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 16 of 20 the documents in dispute in favour of the plaintiff and has been unable to show that fraud was committed in obtaining his signatures on the same.
35. At this stage, in the interest of justice, the Court will consider the testimonies of the rest of the witnesses of the defendant also in order to see if they support the case of the defendant.
36. Sh. Ashok Kumar has deposed as DW2. DW2 has purchased a plot adjoining the eastern side of the suit property from the defendant on 24.04.2005 by execution of GPA, Agreement to Sell, Affidavit, Possession Letter and receipt. The defendant has stated that in aforementioned documents he has specifically mentioned the gali on southern side of the suit property is 15 feet wide. However, in the entire testimony of DW2 he has nowhere mentioned about the width of the gali in question. Infact, he has stated in his crossexamination that at the time of purchase of property he did not measure the width of the gali between his plot and the plot situated in front of him. He has further stated that the he is not aware whether there is a 20 ft wide gali in front of the southern side of the plaintiff's house. In such a scenario, the testimony of DW2 does not help the case of the defendant.
CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 17 of 20
37. Further, Smt. Yogita has deposed as DW3. DW3 has stated that she does not know with regard to which colony and gali number the present suit has been filed. The witness has denied knowledge about the measurement of the plot of the plaintiff or the size of the street written in the documents of the plaintiff. The witness has further deposed that her father had told her about the factum of the width of the street being 15 feet. However, the witness has not seen any document with regard to the size of the street nor has she measured the street herself. The testimony of witness is based on hearsay evidence and not on basis of her personal knowledge and therefore cannot be considered.
38. In the present case, it is held that the plaintiff has therefore established a better title i.e. entitlement over the suit property than the defendant. Ex.PW1/7 to Ex.PW1/12 have been proved as the execution of the same has been admitted by the defendant. On basis of the said documents, it can be said that the width of the gali on the southern side of the plot of the plaintiff is 20 feet and not 15 feet. As a result of this finding, it is further held that the encroachment by the defendant on the 5 feet of the gali in dispute, is illegal as the same belongs to the plaintiff.
39. In light of the aforesaid discussion, it is held that the plaintiff CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 18 of 20 has discharged the burden of proof placed upon him under Section 101 of the Evidence Act and the defendant has failed to subsequently discharge the burden of proof, which had shifted on to him under Section 103 of the Evidence Act.
40. Both the issues are decided in favour of the plaintiff and against the defendant.
RELIEF:
41. In view of the above discussion, the suit of the plaintiff is decreed and the plaintiff is entitled to the following relief :
(a) A decree for mandatory injunction is passed in favour of the plaintiff and against the defendant directing the defendant to remove the unauthorized construction/encroachment from the gali measure 20 feet in the southern side of the plot of the plaintiff measuring 200 sq. yards situated in khasra no. 71/15, in the revenue estate of village Karala, Abadi known as Utsav Vihar, Delhi110081.
(b) A decree for permanent injunction is passed in favour of the plaintiff and against the defendant restraining the defendant, his agents, employees, representatives etc. permanently from encroaching upon the gali measuring 20 feet in the southern side of the plot of the plaintiff measuring 200 sq. yards situated in CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 19 of 20 khasra no. 71/15, in the revenue estate of village Karala, Abadi known as Utsav Vihar, Delhi110081.
(c) Cost of the suit is awarded in favour of the plaintiff and against the defendant.
42. Decree sheet be prepared accordingly.
43. File be consigned to the record room after necessary compliance.
Digitally signed by MANSIANNOUNCED IN THE OPEN MANSI MALIK
MALIK Date:
COURT ON 21.12.2019
2019.12.23
16:57:07 +0530
(MANSI MALIK)
CIVIL JUDGE (NORTH)
ROHINI/DELHI/21.12.2019
CS No. 34709/2016 Smt. Bhateri Devi Vs. Sh. Naryan Dutt Page No. 20 of 20