Delhi District Court
Sh. Swatantra Singh vs Sh. Yameen on 28 July, 2022
IN THE COURT OF MS. RUCHIKA SINGLA,
ADDL. DISTRICT JUDGE-03, NORTH-WEST DISTT.,
ROHINI COURTS, DELHI
CS No. : 576251/16
CNR No. : DLNW010004002011
In the matter of:
Sh. Swatantra Singh
S/o Sh. Shamsher Singh
R/o P-1/841, Gali No. 1, Sultanpuri, Delhi
........ Plaintiff
VERSUS
1. Sh. Yameen
S/o Late Sh. Gajuddin
Through his LRs
(i) Smt. Shakila w/o Sh. Yameen
(ii) Sonu s/o Sh. Yameen
(iii) Raju s/o Sh. Yameen
(iv) Salman s/o Sh. Yameen
(v) Kalu s/o Sh. Yameen
All R/o D-4, Gupta Colony, Prahlad Vihar-II
Shahbad Dairy, Delhi
2. Sh. Om Prakash
R/o D-5, Block-D,
Gupta Colony, Prahlad Vihar-II
Shahbad Dairy, Delhi
3. Smt. Reeta Devi
R/o R/o D-5, Block-D,
Gupta Colony, Prahlad Vihar-II
Shahbad Dairy, Delhi
4. Station House Officer /IO .......Defendants
CS No. 576251/16 Swatantra Singh Vs. Yameen & Ors. Page no. 10 of 12
Date of institution : 07.09.2011
Date on which judgment was : 20.07.2022
reserved
Date of pronouncement of the : 28.07.2022
judgment
SUIT FOR DECLARATION, POSSESSION, DAMAGES AND FOR
PERMANENT INJUNCTION
JUDGMENT
1. By this judgment, I shall decide present suit filed by the plaintiff for declaration, possession, damages and for permanent injunction.
2. In brief, the case of the plaintiff as per plaint is that the plaintiff purchased a plot of land measuring 100 sq. yards out of Khasra No. 218, situated at Prahlad ViharII, Delhi (hereinafter referred to as the suit property) from one Sh. Raj Kumar S/o Sh. Chhelu Ram R/o Village Shahbad Dairy, Delhi on 11.12.1996 vide GPA agreement to sell, affidavit and receipt against a valid sale consideration of Rs. 20,000/. All the documents were duly notarized. It is further stated that plaintiff constructed the boundary wall over the same since the plaintiff was not having sufficient funds to raise any further construction over the same. However, the plaintiff later found that Defendant no. 1 was in illegal occupation of 50 sq. yards and Defendant no. 2 and Defendant no. 3 were in illegal occupation of 25 sq. yards each of the suit property. Further, Defendant no. 1 and 3 had built up jhuggies in the suit property. Upon enquiry, they told the plaintiff that they had purchased the said plot. It is further stated that plaintiff was constrained to make written complaint to the Commissioner of police and SHO, PS Prahladpur, Delhi. It is further stated that an FIR bearing no. 194/09 dated 17.08.2009 u/s 420/468/471/506/34 IPC was registered CS No. 576251/16 Swatantra Singh Vs. Yameen & Ors. Page no. 10 of 12 at PS SB Dairy against the defendants and property dealer Raj Kumar. Hence, the plaintiff has filed the present suit seeking a decree of declaration thereby declaring that the plaintiff is the absolute exclusive and lawful owner of 100 sq. yards of property in question. He also seeks possession, damages and a decree of permanent injunction qua the same.
3. Summons of the present suit were issued to all the defendants and they were duly served. Thereafter, written statement was moved on behalf of defendants. In their written statement, it is stated that the plaintiff is a property dealer and was working with property dealer Raj Kumar. It is stated that Sh. Raj Kumar sold the part suit property to Smt. Jaimanti Devi vide GPA, Agreement to Sell, Receipt, Affidavit and Possession Letter dated 02.05.1999 and that she was in possession of the suit property since then. The defendant no.1 was residing in the suit property as the attorney of Smt. Jaimanti Devi. It is further stated that the documents of plaintiff are false and fabricated only to extort the money. It is prayed that the suit may be dismissed. It was also stated that the suit of the plaintiff be dismissed for misjoinder and non joinder of necessary party as the plaintiff did not implead Smt. Jaimanti Devi as a party in the present case. Also, it was stated that that the suit was barred by limitation.
4. Similarly, in the WS, defendant no.2 claimed that the part suit property was purchased by his wife Smt. Kamla Devi vide GPA, Agreement to Sell, Receipt, Affidavit and Possession Letter dated 17.04.2009 and that she was in possession of the suit property since then. It is further stated that the documents of plaintiff are false and fabricated only to extort the money. It is prayed that the suit may be dismissed. It was also stated that the suit of the plaintiff be dismissed for misjoinder and non joinder of necessary party as the plaintiff did not implead Smt. Kamla Devi as a party in the present case.
CS No. 576251/16 Swatantra Singh Vs. Yameen & Ors. Page no. 10 of 12
5. Similarly, in the WS, defendant no.3 claimed that the part suit property was purchased by her vide GPA, Agreement to Sell, Receipt, Affidavit and Possession Letter dated 27.02.2006 and that she was in possession of the suit property since then. It is further stated that the documents of plaintiff are false and fabricated only to extort the money. It is prayed that the suit may be dismissed.
6. Replication to the written statement of defendants was filed on behalf of the plaintiff wherein interalia the plaintiff replied that the written statement was based on total falsehood. Plaintiff denied the averments of the written statement and re affirmed the averments of the plaint.
7. On completion of the pleadings, following issues were framed vide order dated 08.05.2013:
(1) Whether the documents relied by the plaintiff are forged and fabricated as alleged by the defendants ? OPD (2) Whether the suit property has been purchased by the defendants from the erstwhile owner and by virtue of the documents they have acquired right, title and interest in the property. If so to what effect? OPD (3) Whether the suit has not been properly valued for the purpose of court fee? OPD. (4) Whether the suit is bad for misjoinder and non joinder of necessary parties? OPD. (5) Whether the suit of the plaintiff is barred by limitation? OPD. (6) Whether the suit of the plaintiff is entitled to declaration? OPP (7) Whether the suit of the plaintiff is entitled to decree of possession in respect of suit property? OPP (8) Whether the suit of the plaintiff is entitled to decree of damages/ mesne profit from the defendants. If so at what rate and for which period? OPP. (9) Whether the suit of the plaintiff is entitled to decree of permanent injunction as CS No. 576251/16 Swatantra Singh Vs. Yameen & Ors. Page no. 10 of 12 prayed? OPP.
(10) Relief.
8. Thereafter, the matter was listed for PE. The plaintiff in support of his case examined himself as PW1 and he tendered her evidence by way of affidavit Ex. PW1/A and he relied upon the following documents:
i) Seizure memo in case FIR no. 194/09 Ex. PW1/1
ii) Site plan of the property Ex. PW1/2
iii) Copy of order dated 07.09.2010 Mark G (deexhibited from Ex.PW1/3)
iv) Status report of IO SI Mahender Pratap Ex. PW4/A
v) Property documents in favour of the plaintiff Ex. PW1/5(OSR), PW1/6(OSR) and PW1/7(OSR) and PW1/8(OSR).
9. Witness was crossexamined on behalf of the defendants. Thereafter, plaintiff evidence was closed vide order dated 18.08.2017.
10. The defendants in their evidence examined four witnesses i.e. Sh. Yameen as DW1 and he tendered his evidence by way of affidavit Ex. DW1/A. Sh. Om Prakash as DW2 and he tendered his evidence by way of affidavit Ex. DW2/1. Mrs. Rita Devi as DW3 and she tendered her evidence by way of affidavit Ex. DW3/1. She relied upon the documents Ex. DW3/A to Ex. DW3/G(Ex. DW3/A to Ex. DW3/G (OSR) except Ex. DW3/F. Sh. Ajay Singh as DW4 and he has brought the case file vide which FIR No. 194/09, PS Shahbad Dairy u/s 420/468/471 IPC. He exhibited the documents in favour of Smt. Kamla Devi as Ex.PW4/A (OSR) and Ex.PW4/B (OSR). In view of separate statement of Ld. Counsel for the defendants recorded on 14.11.2017, defence evidence was closed vide order dated 14.11.2017.
11. I have already heard arguments from Sh. S.K. Senger, Ld. Counsel for plaintiff CS No. 576251/16 Swatantra Singh Vs. Yameen & Ors. Page no. 10 of 12 and Sh. Rakesh Kumar Sharma, Ld. Counsel for the defendants and have perused the entire material available on record carefully. I have also gone through written brief synopsis/arguments filed on behalf of defendants. My Issuewise findings are as under: Issue No. 1 "Whether the document relied by the plaintiff are forged and fabricated as alleged by the defendant"?(OPD)
12. The onus to prove this issue was upon the defendants. Briefly stated, the plaintiff has alleged that he is the owner of the suit property on the basis of GPA, Agreement to Sell, Receipt, Affidavit etc executed in his favour by one Sh. Raj Kumar on 11.12.1996. The documents are Ex. PW-1/5( Colly). It is alleged by the defendant that the documents as produced by the plaintiff are forged and fabricated as the plaintiff and Sh. Raj Kumar were working together as property dealers and they hatched a conspiracy together to oust the defendants from their houses and created these documents to show the false ownership in the favour of the plaintiff.
13. In this regard, as mentioned above the onus to prove this fact was upon the defendants. However, no evidence was led by the defendants that the plaintiff's documents are forged and fabricated. Only an oral testimony has been given by the defendants regarding the same. Apart from the defendants appearing in the witness box, they only produced one other witness as DW-4, who was the Ahlmad in the Court of Sh. Jitender Pratap Singh, Ld. MM, North District, Rohini Courts. The said witness produced the original case file in FIR NO. 194/09 by PS Shahbad Dairy u/s 420/468/471 IPC titled as State Vs. Raj Kumar. From the said file, the defendants only produced the original GPA executed in the favour of Smt. Rita Devi, Smt. Kamla Devi and Smt. Jaiwanti Devi. Merely because certain other documents have been produced by the defendants does not by itself mean that the documents CS No. 576251/16 Swatantra Singh Vs. Yameen & Ors. Page no. 10 of 12 produced by the plaintiff are false. The defendants should have led some other cogent evidence to prove the same. However, as mentioned above no evidence has been led by the defendants in this regard apart from their oral testimony. Hence, the defendants have been unable to discharge this onus that the documents produced by the plaintiff are forged and fabricated. Hence, this issue is decided against the defendants.
Issue No. 2"Whether the property has been purchased by the defendants from the erstwhile owner and by virtue of the documents they have acquired right, title and interest in the property and if so to what effect"? (OPD)
14. The onus to prove this issue was also upon the defendants. As mentioned above, it is alleged by the defendants that they have purchased the suit property from Sh. Raj Kumar by virtue of different documents executed in their favour which are Ex. DW-4/B, EX DW-4/A and Ex. DW-3/A respectively.
15. In this regard, it may be noted that both the plaintiff and the defendants have relied upon the documents which are in the nature of GPA, Agreement to Sell, Will, Receipt, Affidavit and Possession Letter allegedly executed in their favour. The nature of documents of both the parties is the same. In fact, the seller who has executed these documents in favour of both the parties is also the same i.e. Sh. Raj Kumar. Sh. Raj Kumar was never produced as a witness before the court. Hence, his testimony is not before the court as to which documents are genuine. Secondly, none of the parties have produced the original previous chain of the documents. Even the photocopies were not produced. Hence, there is nothing on record to show that Sh. Raj Kumar was competent to execute these documents in the favour of either of the parties. Both the parties have only produced the documents which were executed in their respective favour. In the opinion of the court the same is not sufficient to prove the ownership in the favour of either of the parties.
CS No. 576251/16 Swatantra Singh Vs. Yameen & Ors. Page no. 10 of 12
16. Further, the Hon'ble Supreme Court has clearly held in the case titled as Suraj Lamps & Industries Pvt. Ltd. v. State of Haryana (2012) 1 SCC 656 that the transfer pertaining to immovable property vide unregistered documents is not a valid transfer. Hence, by virtue of the same and in the absence of any previous chain in the favour of either of the parties, the court is of the opinion that none of the parties have been able to prove their title over the suit property. Hence, this issue is decided against the defendants.
Issue No. 3"Whether the suit has been property valued for the purposes of court fees." OPD
17. The onus to prove this issue was upon the defendants. In the plaint, the plaintiff has valued the suit at Rs. 10 lacs and has suffixed requisite court fees upon the same. It is a well settled principle of law that the valuation of the suit is the prerogative of the plaintiff and the defendant must show that the suit was undervalued or the court fees has not been affixed properly. No evidence has been led by the defendant to prove this fact that the suit has been undervalued by the plaintiff or that less than the requisite court fees has been attached by him. In view of the same, the present issue is decided in the favour of the plaintiff and against the defendants.
Issue No. 4"Whether the suit is barred for misjoinder and non joinder of necessary parties."
(OPD)
18. The onus to prove this issue was upon the defendants. It is argued by the Ld. Counsel for the defendants that in the present matter, the plaintiff has sought a decree of declaration against the defendants that he may be declared as absolute, exclusive and lawful owner of the suit property. However, the defendants have claimed that the CS No. 576251/16 Swatantra Singh Vs. Yameen & Ors. Page no. 10 of 12 property was purchased in three parts by one Ms. Jaiwanti Devi, one Smt. Kamla Devi and the defendant no. 3. It is submitted that the plaintiff is aware that the documents have been executed in the name of these three persons, however, still he has not made Smt. Jaiwanti Devi and Smt. Kamla Devi as party in the present matter. Hence, it is stated that the present suit is barred for misjoinder and for non-joinder of parties.
19. The defendants has proved the documents in respect of the same as Ex DW- 4/B, Ex. DW-4/A and Ex. DW-3/A respectively. As it is clearly alleged that the property was purchased by Smt. Jaiwanti Devi, Smt. Kamla Devi and Smt. Rita Devi, the plaintiff could have sought the decree of declaration of title against only these persons in whose favour the documents have been executed. He has not made Smt. Jaiwanti Devi and Smt. Kamla Devi as party in the present suit, who were necessary party to the present suit. Hence, this issue is decided in the favour of the defendant and against the plaintiff.
Issue No. 5"Whether the suit of the plaintiff is barred by limitation? (OPD)
20. The onus to prove this limitation was upon the defendants. It has been argued by the defendants that the present suit is hopelessly barred by limitation. It is argued that the defendant no. 1 is in the possession of the suit property since 1999 when he was inducted in the suit property by the owner Smt. Jaiwanti Devi. Further, it is stated that the defendant no. 3 i.e. Smt. Rita Devi is in the possession of the property since February, 2006 when documents Ex. DW-3/A were executed in her favour and the defendant no. 2 is in the possession of the property since April, 2009 when the property documents were executed in the name of his wife Smt. Kamla Devi which are Ex. DW-4/A. Per contra, the plaintiff has argued that he came to know of the possession of the defendants over the suit property only in November, 2008.
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21. Perusal of record shows that in para no 4 of his plaint, the plaintiff has mentioned that he used to visit the suit property occasionally after four to six months. This was repeated by him in the witness box. When the plaintiff appeared in the witness box for his cross examination, he admitted in his cross that when he visited the suit property in the year 1998, he found that the defendant no. 1 was in the possession of Kabara in the suit property. He also states further in his cross examination that he asked the defendant no. 1 to remove the Kabara as he wanted to construct over the suit property and he also gave a written complaint to the police at PS Shahbad Dairy. Thereafter, he states that the police officials called all the defendants to the PS. This clearly shows that the plaintiff was aware of the possession of the defendant no. 1 since the year 1998. He has stated further in his cross examination that as per his knowledge, the defendants no. 2 & 3 did not have any documents pertaining to Khasra No. 218 where the suit property is situated. However, even if that is believed to be correct, the fact that the defendant no. 1 was in the possession of the suit property since the year 1998 stands admitted by the plaintiff in his cross examination. However, despite their possession over the suit property, he did not file the suit for declaration and possession within the limitation period. In view of the same, the court is of the opinion that the present suit is barred by the limitation in respect of the defendant no.1.
22. However, qua the defendants no. 2 & 3, the cause of action arose in the favour of the plaintiff atleast not before 2009 and 2006 respectively as that is the year when the defendants allegedly purchased the property. A suit for possession can be filed within 12 years of the date of cause of action. Hence, qua these defendants, the suit is within the limitation period. Hence, this issue is decided partly in the favour of the defendants and partly in the favour of the plaintiff.
CS No. 576251/16 Swatantra Singh Vs. Yameen & Ors. Page no. 10 of 12 Issue no. 6, 7, 8 & 9 "(6) Whether the suit of the plaintiff is entitled to declaration? OPP (7) Whether the suit of the plaintiff is entitled to decree of possession in respect of suit property? OPP (8) Whether the suit of the plaintiff is entitled to decree of damages/ mesne profit from the defendants. If so at what rate and for which period? OPP. (9) Whether the suit of the plaintiff is entitled to decree of permanent injunction as prayed? OPP".
23. The onus to prove these issues was upon the plaintiff. As the issues are interconnected, they are taken up together. As mentioned above, the plaintiff has sought a declaration that he is the owner of the suit property in view of certain documents which were executed by one Sh. Raj Kumar in his favour on 11.12.1996 which are Ex. PW-1/5. As mentioned above, the plaintiff has not produced the chain of documents vide which the title of the suit property passed upon Sh. Raj Kumar. Only the chain of the documents which have been executed by Sh. Raj Kumar in the favour of the plaintiff have been produced by the plaintiff. The same is not sufficient to prove the ownership in the favour of the plaintiff. Sh. Raj Kumar was also not produced by the plaintiff in his evidence. Further, the documents Ex.PW1/5 have not been witnessed by any person. Hence, there is no evidence in the favour of the plaintiff regarding the execution of these documents.
24. Further, as mentioned earlier, in view of the Suraj Lamps Case (Supra), the transfer pertaining to immovable property vide unregistered documents is not a valid transfer. Furthermore, the plaintiff has failed to show that the possession was ever delivered to him. Later documents executed by Sh. Raj Kumar have been produced by the defendants. Hence, the plaintiff has been unable to prove that he became the owner of the suit property by virtue of the documents Ex.PW1/5. In view of the same, CS No. 576251/16 Swatantra Singh Vs. Yameen & Ors. Page no. 10 of 12 the court is of the opinion that the plaintiff is not entitled to the reliefs as prayed for. Hence, these issues are decided against the plaintiff.
RELIEF
25. Thus, in view of the findings on Issues as mentioned above, the suit of the plaintiff is dismissed. Both the parties shall bear their own cost. Decree sheet be prepared accordingly.
26. File be consigned to record room after due compliance.
Announced in open court Digitally signed
on 28th July, 2022 RUCHIKA by RUCHIKA
SINGLA
SINGLA Date: 2022.07.28
15:24:41 +0530
(RUCHIKA SINGLA)
Addl. Distt. Judge03, NorthWest Distt.,
Rohini Courts, Delhi.
This judgment contains 12 pages and each
page is checked and signed by me.
CS No. 576251/16 Swatantra Singh Vs. Yameen & Ors. Page no. 10 of 12