Delhi District Court
Ram Pal vs Sukhbir on 20 October, 2023
IN THE COURT OF SH. RAHUL BHATIA ADDITIONAL
DISTRICT JUDGE01, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
RCA DJ-122/2017
Sh. Ram Pal s/o Sh. Binni
Through Legal Representatives
(1) Smt. Chanderi Devi
W/o late Sh. Rampal
(2) Sh. Virender Bidhuri
S/o late Sh. Rampal
(3) Sh. Rajender Bidhuri
S/o late Sh. Rampal
(4) Sh. Sunil Bidhuri
S/o late Sh. Rampal
(5) Smt. Keshav Devi
D/o late Sh. Rampal
(6) Smt. Mitlesh
D/o late Sh. Rampal
(7) Smt. Guddu
D/o late Sh. Rampal
All R/o Churi Mohalla
Gali no.19, Tughlaqabad Extension,
New Delhi ..Appellants
Versus
RCA DJ-122/2017 RAM PAL THR. LRS VS. SUKHBIR Page 1 of 15
Sh. Sukhbir Singh
S/o late Sh. Charan Dass,
R/o C-143, Saurabh Vihar,
Badarpur, New Delhi ..Respondent
Date of Institution : 24.10.2017
Date of Reserving judgment : 14.10.2023
Date of Judgment : 20.10.2023
Judgment:
1 The present appeal arises out of judgment and decree dt.
14.09.2017 in Suit No. 7494/2016 vide which possession was granted to the plaintiff in the case for property No. RZ- 216, Gali No. 18/19 Tughlakabad Extn., New Delhi, admeasuring 50 sq. yds.
2 Plaintiff's case:
2.1 The case of the plaintiff is that he purchased the suit property vide an agreement to sell, power of attorney and receipt dated 21.11.1990 from one Sh.
Batturam. It is stated in the plaint that the defendant was a witness to the said documents.
2.2 It is further stated that in the plaint that the possession was received by the plaintiff on the said date and on that day, the suit property was a constructed house consisting of four rooms, kitchen, bathroom, toilet and open space.
2.3 To show his possession since the date of the RCA DJ-122/2017 RAM PAL THR. LRS VS. SUKHBIR Page 2 of 15 agreement, Plaintiff has placed on record the following documents:
2.3.1 death certificate of Sh. Charandas, father of the plaintiff dt. 24.12.1993 issued by the Govt. of NCT Delhi which shows the address of the deceased as a suit property. 2.3.2 Voter ID card of plaintiff dated 07.02.1995, 2.3.3 birth certificate of his daughter dt. 22.02.1999 and 2.3.4 water connection provided by Delhi Jal Board alongwith various bills from the period 1990 onwards to show that he was in possession of the suit property since 1990. 2.4 It is further stated in the plaint that on 17.01.1999, defendant, his son and certain associates tried to take forceful possession of the suit property, however, with the help of neighbours, the defendant and his associates ran away from the spot. 2.5 It is further stated that on 31.08.2023, at around 11.00 PM, defendant alongwith his wife, son and other associates forcibly entered the house of the plaintiff, i.e., the suit property and after beating the plaintiff and his family members, and removing the household goods of the plaintiff in a tempo, took forcible possession of the suit property that in this way the plaintiff and his family were illegally disposessed from the suit property by the defendant.RCA DJ-122/2017 RAM PAL THR. LRS VS. SUKHBIR Page 3 of 15
3 Defendant's Case:
3.1 The defendant has filed his written statement and took following preliminary objections:
3.1.1 The suit property is valued at more than Rs. 4,00,000/- and Ld. Trial Court did not have the jurisdiction to try the suit. 3.1.2 The suit is not maintainable as the property in dispute was purchased by one Smt. Chandri, wife of the defendant in the year 1995 and without arraying the actual owner of the suit property, the present suit is not maintainable.
3.1.3 Suit is not maintainable as the same is barred by section 41 of the Specific Relief Act.
3.1.4 That the suit property is different from the property occupied by the defendant as there are two properties with No. RZ-
216, one in gali No. 18 and one in gali No. 19. 3.2 Averments made in the plaint are completely denied by the defendant. He has specifically denied that the signature of the defendant on the alleged agreement to sell between the plaintiff and Sh. Datturam are his and has stated that the same are forged and he was not a witness to the said transaction. It is further denied by the defendant that the suit property comprises of four rooms, bathroom, toilet and open RCA DJ-122/2017 RAM PAL THR. LRS VS. SUKHBIR Page 4 of 15 space. It is denied that the plaintiff was ever in possession of the suit property.
3.3 It is further alleged in the WS that the plaintiff was never in the possession of suit property. It is submitted by the defendant that he is residing in the property in gali No. 19, whereas plaintiff is in illegal possession of the property bearing No. RZ-216, Gali No. 18, of which also the defendant is the owner. On this basis, defendant claims that there are two different properties, one in the possession of plaintiff and the other in the possession of defendant. It is stated in the WS that under the garb of occupation of the property in Gali No. 18, the plaintiff is trying to take the possession of the property in Gali No. 19 whose actual owner is the wife of the defendant.
Issues:
4 After completion of pleadings, following issues were framed:
4.1 Whether the suit is bad for misjoinder or non joinder of necessary parties? OPD.
4.2 Whether the suit is hit by the provisions of section 41 of Specific Relief Act? OPD.
4.3 Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD. 4.4 Whether the plaintiff is entitled for decree of possession as prayed for? OPP.
4.5 Whether the plaintiff is entitled to mesne profit as RCA DJ-122/2017 RAM PAL THR. LRS VS. SUKHBIR Page 5 of 15 prayed for?
4.6 Relief.
Plaintiff's Evidence:
5 Plaintiff examined himself as PW-1 and exhibited the following documents: Report of local commissioner as Ex.
PW1/P. Complaint dt. 01.08.2006 as Ex. PW1/Q. Complaint dt. 21.02.2007 as Ex. PW1/R. Complaint dt. 20.02.2007 made to SHO as Ex. PW1/R1. Copy of interim injunction/status quo as Ex. PW1/S. Water bill payments on 16.01.2009 as Ex. PW1/T and Ex. PW1/T1. 6 Ms. Sonwati was examined as PW-2 and supported the case of plaintiff. Sh. Rambilas Sharma from the DJB was examined as PW-3 to prove the water connection and water bill payment. Ms. Reshmi Devi was examined as PW-4. HC Jagdish Prasad, PS Okhla Industrial Area was examined as PW-5 to prove original FIR book bearing FIR No. 458/2003 u/s 448/380 IPC dt. 04.09.2003 as Ex. PW5/A. 7 Defendant examined himself and Sh. Rajender Bidhuri as DW-1 and DW-2.
8 Based upon the evidence, adduced before the Ld. Trial Court, the Ld. Trial Court has decided that Smt. Chandri Devi was not required to be impleaded as a defendant as the present suit was for possession and the allegation of the plaintiff was that defendant committed trespass in the suit property and as such it was decided that Smt. Chandri Devi was not a necessary party. Regarding the bar of section 41 RCA DJ-122/2017 RAM PAL THR. LRS VS. SUKHBIR Page 6 of 15 of Specific Relief Act, the Ld. Trial Court held that only vague allegations regarding section 41 have been made and defendant has not been able to make out any case of applicability of section 41. It has further been held that as the plaintiff has a specific interest in the suit property, the remedy claimed by the plaintiff was legally sustainable. Regarding the valuation and jurisdiction of the trial court, the Ld. Trial Court has held that the onus to prove improper valuation of the suit was on the defendant, however, no cogent material was placed by defendant to prove the marked value of the suit property and as such the said issue was also decided against the defendant. 9 Regarding the issue of possession, the Ld. Trial Court has held that as the suit property is claimed to have been purchased by the plaintiff vide GPA, agreement to sell and receipt all dt. 09.11.1990, the said documents would not give any remedy to the plaintiff for possession as none of these documents transfer the title of a immovable property. Thereafter, the court has examined the case of the plaintiff based upon the prior possession of the plaintiff. On examination of the evidence produced before the Ld. Trial Court, the trial court has held that the plaintiff is able to prove his possession of the suit property from 09.11.1990 till his dispossession on 31.08.2003. Regarding the submission of the defendant that two different properties, one in gali No. 18 and one in gali No. 19, the Ld. Trial Court holds that as per the site plan filed by the plaintiff, the suit property is shown to have gates both in gali No. 18 RCA DJ-122/2017 RAM PAL THR. LRS VS. SUKHBIR Page 7 of 15 and 19. However, the defendant has not led any evidence to show that these are two different properties or defendant was ever in possession of the suit property. Based upon these reasonings and appreciation of evidence, the Ld. Trial Court was pleased to issue a decree of possession in favour of the plaintiff for the suit property. 10 Aggrieved by this judgment, the appellant has filed the present appeal and assailed the impugned order on the following grounds:
10.1 That the Ld. Trial Court has decreed the possession in favour of the plaintiff on account of prior possession. However, the admitted date of dispossession is 31.08.2003 and suit is filed in April 2004, which is more than six months after the alleged dispossession of the plaintiff and as such the present suit is beyond limitation and could not have been entertained by the trial court.
10.2 That the title of the suit property in favour of the plaintiff is only claimed on the basis of agreement to sell, GPA and receipt which are not the documents to transfer title and as such the possession could not have been given to the plaintiff on the basis of title. 10.3 That the identification of the property is wrongly made by the Ld. Trial court and there are two properties under the separate possession of the appellant and the respondent. It is submitted that the Ld. Trial Court has wrongly assumed that it is one and the same property and therefore the preset case RCA DJ-122/2017 RAM PAL THR. LRS VS. SUKHBIR Page 8 of 15 is based upon wrong facts and the judgment thereof cannot be sustained.
11 Per contra, ld. Counsel for the respondent has submitted that the plaintiff has been able to prove that he was in continuous possession of the suit property from 21.11.1990 to 31.08.2003. He submits that the forceful dispossession has given him cause of action to file the civil suit. He submits that his claim in the suit was made both on the basis of title as well as prior possession and the Ld. Trial Court has rightly decreed the suit in his favour.
Regarding the arguments of the Ld. Counsel for the appellant that the present suit is under section 6 of the Specific Relief Act and the filing of the same after six months of dispossession, Ld. Counsel for the respondent submits that as his claim was based on both title and prior possession section 6 will not apply. He further submits that in case the present suit is treated to be a suit u/s 6 of the Specific Relief Act, the appeal would not be maintainable as no appeal or review is maintainable against an order u/s 6 of the Specific Relief Act. Regarding the identity of the suit property, the Ld. Counsel for the respondent submits that the Ld. Trial Court has rightly held that it is the same property with two gates opening in gali No. 18 and 19. He submits that as per the local commissioner report dt. 17.03.2007, fresh construction was carried out on the site and as such the said LC report supports his case which has rightly been appreciated by the Ld. Trial Court. 12 I have gone through the judgment of the Ld. Trial RCA DJ-122/2017 RAM PAL THR. LRS VS. SUKHBIR Page 9 of 15 Court and record annexed with the suit.
13 Ld. counsel for appellant has argued and challenged the impugned judgment on the following grounds :
13.1 That the respondent/plaintiff could not have been given relief by the impugned order as his title was based upon Agreement to Sell, GPA and receipt which are not documents of title and as such, respondent/plaintiff could not have been given relief on the basis of title.
13.2 Ld. Counsel for appellant has raised objection that in case title cannot be declared or granted to the plaintiff, the suit would be covered under Section 6 of Specific Relief Act. He further submits that limitation to file a petition under Section 6 of Specific Relief Act is six months. He further submits that as per the case of respondent, he was dispossessed on 31.08.2003 and he filed suit only on 21.04.2004 that after a delay of more than six months. Ld. Counsel for appellant has submitted that the suit was time barred and could not have been entertained by the Ld.Trial Court. 13.3 The third contention raised by the appellant in the present appeal is regarding identification of the suit property. He submits that suit property is different from the property for which the defendant is staying and has submitted that the Trial Court has wrongly held that there is only one property regarding which possession has been demanded by the plaintiff. A RCA DJ-122/2017 RAM PAL THR. LRS VS. SUKHBIR Page 10 of 15 Regarding title of the suit property : Ld. Trial Court in its judgment has held that title of the plaintiff is based upon certain documents i.e. Agreement to Sell, GPA and receipt and the same cannot confer or transfer title in the favour of the plaintiff. In view of the same, the objection of appellant that the suit cannot be decreed on title need not be addressed as the Trial Court has discarded the title of the plaintiff and only decided on the basis of the prior possession of the plaintiff.
B Ground of Limitation:
Much emphasis has been laid by the Ld. Counsel for appellant that as the Ld. Trial Court has not decreed the suit in favour of the plaintiff on the basis of title, the only remedy left with the plaintiff was for decree of possession under Section 6 of Specific Relief Act. 13.4 Ld. Counsel for appellant submitted that the suit was filed after six months of dispossession of plaintiff and as such the plaintiff could not get the benefit of Section 6 of Specific Relief Act. 14 Recovery of possession of immovable property can be claimed by a party either under Section 5 of Specific Relief Act i.e. as per provision of Code of Civil Procedure or as per Section 6 of Specific Relief Act. Section 5 & 6 of the Specific Relief Act, 1963 read as follows:
SECTION 5 AND 6 OF THE SPECIFIC RELIEF ACT Section 5 Recovery of specific immovable property : "A person entitled to the possession of the specific immovable RCA DJ-122/2017 RAM PAL THR. LRS VS. SUKHBIR Page 11 of 15 property may recover it in the manner provided by the Code of Civil Procedure, 1908".
Section 6 Suit by person dispossessed of immovable property :
(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought :-
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
15 Section 6 of Specific Relief Act is a special remedy which provides for summary proceedings in which a person who had been dispossessed of his possession without his consent, can approach the court against any person who is in unlawful possession of an immovable property.
16 In a case under Section 6 of Specific Relief Act, the question of title cannot be gone into. In case the plaintiff wishes to file a suit for possession based upon prior possession and because of illegal dispossession, he may file a suit against anyone. In such a situation, the title of defendant cannot be relied upon and only possessory rights are examined. However, in a suit filed under Section 5 of the Specific Relief Act, the question of title is also relevant RCA DJ-122/2017 RAM PAL THR. LRS VS. SUKHBIR Page 12 of 15 and the plaintiff or the defendant may set up their case on the basis of either their prior possession or on the basis of their title.
17 Thus, the basic difference between Section 5 and Section 6 of the Specific Relief Act is that in a suit filed under Section 5, the question of title, whether of the plaintiff or the defendant, is not a matter in issue and the suit is only decided based upon the prior possession of the plaintiff, whereas in a suit file under Section 5, the plaintiff or the defendant or, both can base their claim either on title or on prior possession or on both.
18 For the purpose of limitation, s suit for possession for an immovable property filed under Section 5 of Specific Relief Act, is governed by Articles 64 & 65 of the Schedule of the Limitation Act. Article 64 of the Schedule of the Limitation Act deals with a suit for possession of immovable property based upon previous possession whereas Article 65 of the Schedule of the Limitation Act deals with limitation for the purpose of immovable property based upon title. It is noteworthy to mention that in both the cases the period of limitation in 12 years from the date of dispossession.
19 In the present case the plaintiff has approached the court for possession of immovable property and his case was based upon both title and prior possession. The defendant has also taken the defence on the basis of his title and has only sought to prove his title and not his prior possession. Thus, it is clear from the facts of the case that RCA DJ-122/2017 RAM PAL THR. LRS VS. SUKHBIR Page 13 of 15 the present case is not the case under section 6 of the Specific Relief Act but is a case under section 5 of the Specific Relief Act.
20 In view of the same, I am of considered opinion that this suit cannot be treated a suit under Section 6 of Specific Relief Act because of the following reasons :
20.1 The plaintiff has averred his title in the plaint seeking possession based upon his title as well as possessory rights;
20.2 Vide his defence, defendant has also tried to raise his title and as such, he has also not treated the suit under Section 6 of Specific Relief Act 20.3 Even the Ld. Trial Court has decreed the suit based upon prior possession only after observing that based upon the title documents of the plaintiff.
Ground regarding different Properties: 21 The third ground raised by the appellant is regarding identification of the property. Ld. Counsel for appellant has submitted that suit property is different from the property which has been occupied by defendant. 22 It is submitted by Ld. Counsel for appellant that there are two properties, having the same number i.e. RZ- 216 and one is in gali no.18 and other in gali no.19. 23 However, no evidence has been led by the defendant to show that there are two separate properties or that the defendant was in the possession of one of the said properties. Since no evidence was led to this effect, I am RCA DJ-122/2017 RAM PAL THR. LRS VS. SUKHBIR Page 14 of 15 of considered opinion that Ld. Trial Court has rightly held again the appellant on this count also that there are two different properties.
24 In view of above discussion, I am of considered opinion that no error whatsoever has been shown in the impugned order. The impugned order has correctly appreciated the evidence led before it and as such, no infirmity is shown in the impugned order. 25 Accordingly, the appeal is dismissed. 26 TCR be returned along with copy of the order. 27 The file be consigned to record room.
Announced in the open (RAHUL BHATIA) Court on 20.10.2023 Additional District Judge01(SE), Saket Courts, New Delhi. RCA DJ-122/2017 RAM PAL THR. LRS VS. SUKHBIR Page 15 of 15