Delhi District Court
Sh. Jai Pal vs Sh. Vinod Kumar on 29 January, 2021
IN THE COURT OF SH VISHAL GOGNE
ADDITIONAL DISTRICT JUDGE05, SOUTH WEST
DWARKA COURTS, NEW DELHI
Civil Suit No:343/18
IN THE MATTER OF
1. Sh. Jai Pal, S/o Late Sh. Karan Singh
2. Sh. Kaptan Singh, S/o Late Sh. Karan Singh
3. Sh. Ved Parkash, S/o Late S. Karan Singh
4. Sh. Sukhbir Singh, S/o Late Sh. Karan Singh
5. Sh. Naveen, S/o Late Sh. Balwan Singh
All residents of Village Dichaon Kalan,
New Delhi110043 .......... Plaintiffs
Versus
1. Sh. Vinod Kumar, S/o Sh. Udhey Singh
R/o C47, New Vision Colony, Jharaoda Road
Najafgarh, New Delhi72
Presently residing At:
Plot No. C87, Naveen Palace, Bengali Colony
Jharodha Kalan Road
Najafgarh, New Delhi72 ......Defendant
CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 1 of 25
SUIT FOR RECOVERY OF POSSESSION, DECLARATION AND
PERMANENT INJUNCTION
Date of institution : 11.04.2018
Date when judgment reserved : 08.01.2021
Date of Judgment : 29.01.2021
JUDGMENT:
1. The subject of the present suit is a plot bearing no. C87 measuring 300 sq. yards in the revenue estate of village Haibat Pura colony known as Naveen Palace Bengali Colony, Jhardoa Kalan Road, New Delhi110072.
2. The plaintiffs i.e. plaintiff no.1 to 4, claiming through their father Karan Singh and plaintiff no.5 i.e. the grand son of Karan Singh represent themselves to be the successors in interest qua the suit property. They are seeking recovery of possession of the suit property from the defendant apart from a declaration of the documents purportedly alleged to have been executed by Karan Singh in favour of Mamta, Sham Sunder and Rajinder Kumar Arora dated 23.08.1988 and documents executed by the above persons in favour of Jitender on 10.04.1991 as well as the documents dated 10.04.1993 executed by Jitender in favour of the defendant as null and void. The last relief in the suit is for a permanent injunction restraining the defendant from parting with possession or creating third party interest in the suit property.
CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 2 of 253. The averments in the plaint unfold as under:
4. The predecessor in interest of both parties was late Karan Singh who was the bhumidar of land in the revenue estate of village Haibat Pura measuring 31 bigha 9 biswas in khasra no. 11/2/2(37), 9(416), 11(416), 12(416), 19/2(23), 20(416), 21(48), 22/1(23) & 26 (04).
5. Somewhere in the year 1987, Karan Singh divided the said land into plots and sold them to various persons as a colony named Viasnopuri ,later called Naveen Palace Bengali Colony.
6. According to the plaintiff, Karan Singh sold all the above land parcels except plot measuring 375 sq. yards bearing no. 87 in Khasra No 11/12. This plot was intended to be used for building a temple for the benefit of the persons residing in the colony.
7. Later, an area of 75 sq. yds was given for a passage on the southern side. The plot thus came to measure 300 sq. yds. The plaintiff maintains that a boundary wall was built on all sides and a tin shed was made in the area of 20x20 feet.
8. The plot came to be identified as C87 by the coloniser namely Karan Singh and was regularly used for religious events. Since one Shivling was placed under a tin shed, the plot came to known as Shiv Kalai Mandir.
CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 3 of 259. Ownership by way of succession is thus claimed by the plaintiffs from 26.02.2000 when Karan Singh expired. Also, the plaintiffs were purportedly engaged in the management of the temple and the suit plot through a society called Kalyan Samiti Naveen Palace .This society applied for the regularisation of the colony with the Ministry of Urban Development, Govt of NCT of Delhi through letter dated 29.12.2004. The list of plots in the colony included plot no. C87 and a provisional certificate of regularization was subsequently issued by the Urban Development Ministry.
10. Upon unanimous agreement between the members of the society, construction of a temple on the suit plot was commenced in 2010 through funds raised from the local residents. The work was under the management and supervision of the plaintiffs, with the president of the society being one Jagbir Singh Chhikara. As per the plaint and site plan annexed with it, apart from the temple, the construction at the suit plot included two rooms, kitchen, latrine and bathroom, staircase and mumty on the roof.
11. According to the plaintiffs, it is at this stage that the defendant comes into the picture qua the suit property. The plaint states that upon finding the need for a caretaker during construction, the plaintiffs decided upon appointing the defendant, who is a nephew (bhanja) of plaintiffs no.1 to 4 and had been residing with plaintiff no.4 namely Sukhbir Singh. The CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 4 of 25 defendant was thus permitted to stay in the suit property to look after its affairs. An electricity connection came to be installed at the Mandir in the name of the Mandir as informed by the defendant to the plaintiffs.
12. The cause of action for the present suit purportedly arose when in July 2017, upon a visit by plaintiff no.1 to the suit property, he discovered an electricity bill in the name of the defendant rather than in the name of the Mandir. Further enquiry revealed that the defendant had purportedly forged documents and title of the suit plot in his name. A FIR No.011/2018 under section 420/467/468/471/34 IPC came to be registered against the defendant upon an order of the Ld. MM dated 04.01.2018 after a criminal complaint was lodged by the plaintiff .
13. The plaint also makes the averment that the plaintiffs then came to know that the defendants had forged an entire chain of documents in the following manner:
"15. That the plaintiffs have come to know that the defendant has forged a false chain of documents with respect to the suit property and has claimed that the suit property was sold by late Sh. Karan Singh (father of plaintiffs no.1 to 4 & grandfather of plaintiff no.5) to one Smt. Kumari Mamta & Sh. Sham Sunder Arora in the year 1988. The suit property is further alleged to have been sold by Smt. Kumari Mamta & Sh. Sham Sunder Arora to one Sh. Jitender on 10.04.1991. The defendant alleged to have purchased the same from Sh. Jitender on 10.04.1993. The entire alleged chain is false and forged which has also come during in the enquiry conducted by the police on the directions of the Ld. Metropolitan Magistrate in complaint Case No. CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 5 of 25 139/01/17. It mentioned that in the enquiry report, it has been mentioned that the addresses of the first chain owner & second chain owner namely Kumari Mamta, Shayam Sunder, Rajinder Kumar and Jitender Kumar could not be traced which shows that the names are imaginary and the chain is false and forged.
15(a) That it pertinent to submit that late Sh. KaranSingh had never sold the plot no.87 area measuring 375 Sq. Yds. out of khasra no.11/12 situated at village Haibatpur, Delhi Colony known as Vishno Puri, New Delhi to Kumari Mamata, Sham Sunder Arora and Sh. Rajinder Kumar Arora and never executed the alleged documents dated 23.08.1988 in favour of the said persons. As the documents dated 23.08.1988 were never executed by late Sh. Karan Singh in favour of the said three persons, the subsequent execution of the documents dated 10.04.1991 by Kumari Mamata, Sham Sunder Arora and Sh. Rajinder Kumar Arora in respect of the said plot in favour of one Sh. Jitender and thereafter the execution of the documents dated 10.04.1993 in favour of the defendant are forged and not recognised by the law".
14. The plaintiffs denied that Karan Singh sold a plot measuring 375 sq. yds to Kumari Mamta, Sham Sunder or Rajinder Arora. They also denied the documents from these three persons to Jitender and from Jitender to the defendant. The plaintiffs claimed that infact the address of Jitender is fake as there is no village name Gadipur in Hansi Tehsil.
15. The written statement from the defendant admitted and asserted the authenticity of the chain of documents in his favour but also made the alternate plea that since he was in possession since 1993, he had become the owner of the suit property by way of adverse possession. The defendant CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 6 of 25 thus claims ownership by way of purchase from Jitender vide documents dated 10.04.1993 and an alternatively by way of adverse possession.
16. The suit was tried on the following issues:
i) Whether the plaintiff has undervalued the suit for the purpose of jurisdiction and court fee and proper court fee has not been affixed? OPD.
ii) Whether the suit of the plaintiff is bad due to nonjoinder of necessary parties i.e Jitender Singh, Kumari Mamta, Shyam Sunder and Rajinder Kumar Arora, who are the erstwhile owners of the suit property? OPD.
iii) Whether the defendant is the owner of the suit property by way of adverse possession against the plaintiff? OPD.
(iv) Whether the plaintiff is the owner of the suit property on the basis of validly executed documents i.e. GPA, Agreement to Sell, Affidavit, Receipt, all dated 10.04.1993? OPP
(v) Whether the father of the plaintiff late Sh. Karan Singh had never executed the documents i.e. GPA, Agreement to sell and Receipts, all dated 23.08.1988? OPP.
(vi) Whether the plaintiff is entitled to the decree of declaration declaring the documents dated 23.08.1988 and the subsequent documents dated 10.04.1991 and 10.04.1993 as null and void? OPP.
(vii) Whether the plaintiff is entitled to a decree of possession, as prayed for? OPP.
(viii) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP.
(ix) Relief.
17. The witnesses examined by plaintiff were plaintiffs no.1 and 3 as PW1 and PW2 ,a common acquaintance i.e. PW3 and officials from the CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 7 of 25 office of Tehsildar Hansi and Ministry of Law and Justice (PW4 and PW5 respectively). The documents produced by the witnesses were as under:
1. Copy of nakal Khatoni issued on 28.09.1991 by the then Halka Patwari (Ex. PW1/1)
2. Site plan of the suit property( Ex. PW1/2);
3. 6 photographs of the suit property Mark X (colly);
4. Copy of order dated 04.01.2018 passed by Ld. MM to register FIR (Mark Y)
5. Photocopy of Certificate of Registration issued by Registrar of Societies dated 12.09.1994 (Mark A);
6. Copy of letter dated 29.12.2004 ( Mark B);
7. List of members of Kalayan Samiti Naveen Palace ( Mark C);
8. Photocopy of provisional certificate of regularisation issued by Urban Development Minister (Mark D);
9. Computer generated copy of website of legal affairs (Mark E) running into 3 pages;
10. Computer generated copy of website of Tehsil Hasi (Mark F) running into 3 pages;
11. Death certificate of late Sh. Karan Singh (Mark G).
18. The defendant rather secured the presence of an official from the office of Sub Registrar(DW1) who produced the documents executed by Karan Singh as DW1/1. The defendant himself deposed as DW2 and relied upon documents Ex. DW2/1 to Ex. DW2/3.
19. The ld counsel for the plaintiff submitted during the course of final arguments that the cross examination of the defendant i.e. DW2 falsified his account of ownership. Reference was made to the admission of him being in possession over the suit property only since 2010 and his CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 8 of 25 admission regarding residing with his uncle i.e. one of the plaintiffs even in the year 200405. The counsel referred to the purported title documents (Ex. DW1/1) to agitate that these did not even reflect the number of the property. It was also pointed out that the evidence had revealed no village by the name Gadhipur where the purported vendor to the defendant namely Jitender was residing. Also, that the notary who purportedly notarised the documents of the suit property purportedly executed by Karan Singh was not even a notary in the said year. The counsel for the plaintiff also portrayed the claim of title agitated by the defendant to be at odds with the claim of adverse possession.
20. In response, the ld counsel for the defendant submitted that the plaintiffs had not led any evidence qua their own title whereas the defendant had filed a registered receipt Ex.DW1/1. It was submitted in the context of the documents in favour of the defendant that he could have been a beneficiary of the transfer even as a minor. Great emphasis was laid by the counsel on the lack of any witness from the plaintiff on the aspect of title. It was agitated by the counsel for the defendant that it was only the said party which had led any manner of evidence with respect to title.
21. The court has considered the evidence and submissions made by the respective counsels.
CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 9 of 2522. The issues are decided as under:
ISSUE NO.(i) Whether the plaintiff has undervalued the suit for the purpose of jurisdiction and court fee and proper court fee has not been affixed? OPD.
23. The plaintiff had valued the relief of possession at Rs. 30 Lakhs which was challenged in the issue at hand.
24. However, the evidence led by the defendant did not address or challenge the valuation of the suit at all.
25. Issue no.1 is decided in favour of the plaintiff and against the defendant.
ISSUE NO.(ii) Whether the suit of the plaintiff is bad due to non joinder of necessary parties i.e Jitender Singh, Kumari Mamta, Shyam Sunder and Rajinder Kumar Arora, who are the erstwhile owners of the suit property?
OPD.
26. The persons named in this issue were the purported predecessors in title of the defendant qua the suit property. The defendant did not agitate any subsisting right in these persons with respect to the suit property. Their relevance to the pleadings was only to the extent of depicting the preceding chain of transfer i.e. from Kumari Mamta, Sham Sunder Arora and Rajinder Kumar Arora to Jitender Singh and then from Jitender Singh to the CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 10 of 25 defendant namely Vinod Kumar.
27. The plaintiff did not agitate any relief against these persons either. In fact, the stated case of the plaintiff is that there was no transaction from Karan Singh through the above persons ultimately ending with the defendant. Consequently, these persons were, even at best, witnesses who could have been summoned by either party. Neither the plaintiff nor the defendant however, tried to secure the deposition of these witnesses.
28. The court finds that neither of these persons were necessary parties to the present suit and the suit is thus not bad in law for reason of their non joinder.
29. Issue no.2 is decided in favour of the plaintiff and against the defendant.
ISSUE NO.(iv) Whether the plaintiff is the owner of the suit property on the basis of validly executed documents i.e. GPA, Agreement to Sell, Affidavit, Receipt, all dated 10.04.1993? OPP
30. The court would highlight at the outset that there is an apparent typographical error in issue no.4 in as much as the word 'plaintiff' should read 'defendant' as it is the defendant who is claiming ownership in the suit property through the documents dated 10.04.1993. Issue no.4 is thus re framed as under:
CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 11 of 25(iv) Whether the defendant is the owner of the suit property on the basis of validly executed documents i.e. GPA, Agreement to Sell, Affidavit, Receipt, all dated 10.04.1993? OPP
31. The aspect of the last accepted predecessor in title of the parties is addressed first. It is the common version of both parties that the father of the plaintiff namely Karan Singh, who was also the grandfather (Nana) of the defendant, was the original owner of the plot of land on which the temple is now situated. While the title of the common ancestor not being disputed is a strong indication of his title, it may still be tested against other evidence and circumstances emerging from the present trial.
32. The plaintiff (PW1) filed the copy of the khatoni of the year 198586 (issued on 28.09.1991) which reflected the various land parcels qua which Karan Singh was the bhumidaar. This document relates to the village Haibat Pura and was not challenged during crossexamination either. Thus, the various land parcels reflected in the same can validly be treated as being under the bhumidaari rights of the ancestor of the parties i.e. Karan Singh.
33. That the khatoni related to the year 198586 and no further entry was apparently made subsequently by the revenue authorities is a circumstance in consonance with the development of a residential colony at the site as depicted by the plaintiff and not denied by the defendant.
CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 12 of 2534. To elaborate, PW1 had deposed that Karan Singh started carving out plots in the various khasra numbers in village Haibat Pura by the name Naveen Palace. Further, that the suit plot was situated in khasra number 11/12.
35. The khatoni (Ex. PW1/1) reflects an area of 4 bigha 16 biswa in khasra no. 11/12 as being subject to the bhumidari rights of Karan Singh. It is common knowledge that once agricultural land loses its character as cultivated land and is put to residential use over large areas in the form of colonies, the revenue authorities cease to record the khatoni any further. The same would apply to the record of cultivation i.e. khasra girdawari as there would be no crops to record in the same. Hence, the khatoni for the year 198586 manifestly establishes Karan Singh as the last recorded bhumidaar of land in khasra no. 11/12 including the suit plot bearing no.
87.
36. Also, no third party or other claimant has come on record or been reflected as having any interest in the suit plot.
37. The judgment thus proceeds on the finding that both parties claim ownership through the proved last owner Karan Singh.
CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 13 of 2538. The next aspect pertains to the claim to title of the defendant founded on the documents dated 10.04.1993 (Ex. DW3/1 colllectively) which included GPA, Agreement to sell, affidavit and receipt.
39. Much argument was launched by both counsels on the capacity or otherwise of the defendant to have purchased this plot from the purported previous owner namely Jitender Singh through these documents.
40. Now, a minor's contract is not void and consideration for a contract between two persons can also certainly flow from a third party. Yet, in the present evidence, no indication has emerged of the source of funds for the purported purchase of the suit property by the defendant who was certainly a minor in the year 1993.
41. The defendant (DW2), to his own admission during cross examination, was 15 years old in the year 1993. The court would venture that he was a few years too young to have been transacting for purchase of immovable properties on his own. In fact, the age of the defendant on the date of the transaction was most probably 13 years and not 15 years as evident from his deposition in a separate suit between the parties. The said deposition was Ex. DW2/PX5 which was recorded on 16.08.2018 in a separate suit and recorded his age as 38 years on 16.08.2018. By this estimation, the defendant would have been 13 years old in 1993. In fact, during crossexamination in the said suit, the defendant admitted that he CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 14 of 25 was 19 years old in 1999. By this reference point too, his age would have been 13 years in 1993. Again, an age perhaps of understanding but not of conducting a transaction as depicted.
42. Being the one to stake ownership on documents dated 10.04.1993, it was incumbent upon the defendant to shine light upon the source of funds and the circumstances of this transaction. It certainly was an explanation not forthcoming as to how the defendant was purchasing the property, previously owned by his grandfather i.e. Karan Singh, at the tender age of 13 years.
43. Moreover, the defendant did not have any independent income at that stage. One of the witnesses examined by the defendant i.e. Jangbir Saini (DW4) stated the apparent during crossexamination interalia that in 1992, the defendant had been a school student.
44. The defendant has not succeeded in establishing the tale of a young lad affording a plot of land.
45. The doubts on the version of the defendant were cemented by his failure to examine the vendor in documents 10.04.1993 i.e. Jitender Singh. As the executor of the power of attorney and other documents in favour of the defendant, Jitender would have shed more light on the transaction as claimed by the defendant. Yet, the defendant neither examined him nor CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 15 of 25 offered any explanation for this omission.
46. The plaintiff also succeeded in demolishing the probability of a transaction between Jitender and the defendant by bringing into evidence a list of villages in district Hansi which was the address of Jitender recorded in the documents dated 10.04.1993.
47. Jitender had been recorded as a resident of village Gadhipur, District Hansi, Haryana. However, PW4 who was an official from the office of Tehsildar, district Hansi, Hisar furnished a list (Ex. PW4/A) detailing all villages in district Hansi. This list does not record any village by the name of Gadhipur. It then was for the defendant to dispel the existential doubts upon village Gadhipur by calling Jitender in evidence on his behalf. This was not done despite the defendant being the second to lead evidence.
48. The court would therefore draw the presumption under Section 114 Illustration (g) of the Indian Evidence Act, 1872 against the defendant.
49. The preponderance of probabilities decisively tilts in favour of the finding that the documents dated 10.04.1993, claimed by the defendant to have been executed in his favour by Jitender were sham and no Power of attorney, agreement to sell, affidavit or receipt qua the suit property were executed by any person named Jitender in favour of the defendant.
CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 16 of 2550. Although documents of the above description would not have conferred perfect title upon the defendant even if the same had been proved, the court would have rendered a finding of better title between the parties if the documents themselves were proved. However, the documents remain not proved and rather come across as being sham, thereby denying even the possibility of better title to the defendant.
51. Thus, neither in the sense of a better owner nor an owner per se does the defendant come across as an owner upon appraisal of the evidence led by him.
52. Issue no.4 is decided in favour of the plaintiff and against the defendant.
ISSUE NO.(v) Whether the father of the plaintiff late Sh. Karan Singh had never executed the documents i.e. GPA, Agreement to sell and Receipts, all dated 23.08.1988? OPP.
53. This issue is apparently worded in the negative. It has been enjoined upon the plaintiff to establish that their father i.e. Karan Singh did not execute the documents dated 23.08.1988 in favour of Kumari Mamta, Sham Sunder Arora and Rajinder Kumar Arora for an amount of Rs. 40,000/.
54. Since the plaintiffs are denying the execution of these documents, the question was rightly worded and framed at the stage of framing of issues by CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 17 of 25 the Ld. predecessor of this court. However, a finding on this issue is not contingent upon the deposition of the witnesses for the plaintiff per se but cant be arrived at from the deposition, including crossexamination, of the defendant's witnesses.
55. The most notable circumstance/omission here is the complete lack of crossexamination by the counsel for the defendant on a critical aspect viz the appearance of the name of plaintiff no.1 i.e. Jaipal on the GPA Ex. DW3/PX1 and receipt for Rs. 40,000/ (Ex. DW1/1).
56. At plain reading, both these documents record that Jaipal was one of the witnesses to the purported alienation by Karan Singh in favour of Kumari Mamta, Sham Sunder Arora, Rajinder Kumar Arora. For their part, the plaintiffs i.e. PW1 and PW3 denied that their father had executed any such documents. This was their specific assertion in their affidavits in evidence. Yet, the counsel for the defendant did not so much as put forth a suggestion to either PW1 and PW2 that PW1 had infact witnessed the transaction dated 23.08.1988. The court treats this omission as neither inadvertent nor minor. This omission was a rank admission of the lack of faith of the defendant in these documents. There is no other explanation for the defendant letting go of what would have been prime evidence of the fidelity of these documents.
CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 18 of 2557. Since it was the defendant who was agitating the chain of title through the documents dated 23.08.1988 (Mark DW3/PX1), his failure to summon the three purchasers who then purportedly sold the plot to Jitender is a circumstance which helped the plaintiff to discharge the onus qua issue no.5.
58. The court has already noted that the failure to examine Jitender was detrimental to the claim of the defendant. The nonexamination of Kumari Mamta, Sham Sunder Arora and Rajinder Arora emboldens the finding that Karan Singh never alienated the suit plot in favour of the last three persons.
59. It would also be useful to observe that the documents which were then executed by these three persons in favour of Jitender i.e. GPA, Agreement to sell, affidavit, Receipt and Will dated 10.04.1991 (Ex.DW2/PX3), as agitated by the defendant, did not bear the signatures of Kumari Mamta. The defendant (DW2) admitted as much during his cross examination.
60. In sum, the entire chain of documents from Karan Singh to the defendant including the documents dated 23.08.1988 lies in grave suspicion of being inauthentic. On the preponderance of probabilities, the court concludes that Karan Singh never executed a GPA, Agreement to sell, Receipt and Affidavit dated 23.08.1988 (Mark DW3/PX1) in favour of Kumari Mamta, Sham Sunder Arora and Rajinder Kumar Arora. It is also CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 19 of 25 found on the same standard that the last named three persons did not transfer any right or interest in the suit property in favour of Jitender through documents in the nature of GPA, Agreement to sell, Affidavit, Receipt and Will dated 10.04.1991 (Ex. DW2/PX3).
61. The documents dated 23.08.1988 and 10.04.1991 alongwith the documents dated 10.04.1993 are established as sham documents with no legal effect qua the suit property.
62. Issue no. (v) is decided in favour of the plaintiff and against the defendant.
ISSUE No. (vi) Whether the plaintiff is entitled to the decree of declaration declaring the documents dated 23.08.1988 and the subsequent documents dated 10.04.1991 and 10.04.1993 as null and void?
OPP.
63. In view of the findings upon issues no. (iv) and (v), the docuemnts dated 23.08.1988, 10.04.1991 and 10.04.1993 are liable to be declared null and void.
ISSUE NO.(iii) Whether the defendant is the owner of the suit property by way of adverse possession against the plaintiff? OPD.
CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 20 of 2564. The question of adverse possession is next to be considered.
65. The claim of the defendant to ownership by way of adverse possession falters on law as well as fact.
66. The assertion in the written statement that the defendant was in continuous possession of the suit property since 1993 was belied by multiple contradictory revelations during evidence. For one, the construction at the suit property for purpose of a temple commenced only in the year 2010. This fact was admitted by the defendant (DW2) during his cross examination. Hence, it is difficult to envisage any manner of physical possession of the defendant over the suit plot prior to 2010.
67. Also, it is not merely possession but hostile possession i.e. holding of possession with the intention to exclude the owner which is the essence of the plea of ownership by way of adverse possession. Here, it is to be noticed that the defendant (DW2) admitted during cross examination that he had been residing with his maternal uncle i.e. Sukhbir Singh (plaintiff no.4) in the year 200405. Considering that all plaintiffs are arrayed against the defendant contending that he entered the suit plot permissively and only as a care taker in the year 2010, the claim of continued possession since 1993 and that too hostile to the plaintiffs is not sustainable.
CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 21 of 2568. Besides, the claim of continued possession since 1993 was founded on the documents dated 10.04.1993 (Ex. DW3/1). The court has disbelieved the said documents vide findings on issue no.(iv). Hence, these documents do not hold ground for supporting the claim of adverse possession since 1993.
69. As stated earlier, the claim of adverse possession also falters in law. The defendant has claimed ownership by way of title document as well as through adverse possession. These two pleas are mutually irreconcilable.
70. In its decision reported as Smt. Rama Kanta Jain vs M.S Jain & Ors AIR 1999 Delhi 281 (relied upon by the plaintiffs), the Hon'ble High Court of Delhi held as under :
"17.............It has already been observed above that a person who traces his possession to a lawful title can never become an owner by adverse possession. How a person, who claims himself to be the true owner of a particular property, can claim to be the owner of the same by adverse possession. Admittedly, "adverse possession" means a hostile assertion which is expressly and impliedly in denial of the title of the true owner. Thus the defendants cannot be permitted to blow hot and cold in the same breath. The mere fact that the defendant have come forward with a plea of adverse possession means that they admit the plaintiff to be the true owner. For a plea of ownership on the basis of adverse possession, the first and the formost condition is that the property must belong to someone else other than the person pleading his title on the basis CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 22 of 25 of adverse possession. Such defences would be irreconcilable and mutually destructive and inconsistent with one another......"
71. The present defendant has also attempted precisely the above irreconcilable defences and meets the same fate. Having implicitly admitted the plaintiffs to be the owner while pleading adverse possession, the plea of title on the basis of documents would not survive. Conversely, the claim to title on the basis of documents would render non est the plea of adverse possession.
72. Issue no. (iii) is decided against the defendant.
Issue No. (vii) Whether the plaintiff is entitled to a decree of possession, as prayed for? OPP
73. The court has found the documents dated 23.08.1988, 10.04.1991 and 10.04.1993 to be null and void. As the admitted successors of the last proved owner i.e. Karan Singh, the plaintiffs are entitled to recover possession of the suit property from the defendant.
74. Issue no.(vii) is decided in favour of the plaintiffs and against the defendant.
Issue no. (viii) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP.
CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 23 of 2575. The grant of an injunction is a relief based on equity. The court has already found the plaintiffs to be entitled to recover possession while the documents relied upon by the defendant are liable to be declared null and void. It is thus only equitable that the interests of the plaintiff in the suit property are protected against any alienation by the defendant. The plaintiffs are entitled to the permanent injunction prayed for.
76. Issue no. (viii) is decided in favour of the plaintiffs and against the defendant.
RELIEF.
77. In view of the findings upon issues no. (vi) to (viii), the suit is liable to be decreed in faovur of the plaintiffs and against the defendant qua all reliefs prayed for in the suit.
78. The documents dated 23.08.1988 i.e. General Power of Attorney, Agreement to sell, Affidavit and Receipt purportedly executed by Sh. Karan Singh in favour of Kumari Mamta, Sh. Sham Sunder and Sh. Rajinder Kumar Arora, documents dated 10.04.1991 i.e. General Power of Attorney, Agreement to Sell, Affidavit, Receipt and Will purportedly executed by Kumari Mamta, Sh. Sham Sunder and Sh. Rajinder Kumar Arora in favour of Sh. Jitender and documents dated 10.04.1993 i.e. General Power of Attorney, Agreement to Sell, Affidavit and Receipt purportedly executed by CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 24 of 25 Sh. Jitender in favour of Vinod Kumar are declared null and void.
79. A decree of possession of the suit property bearing plot no. C87, area measuring 300 sq. yds situated in the revenue estate of village Haibat Pura colony known as Naveen Palace, Bengali colony, Jharodha Kalan Road, Najafgarh, New Delhi10072 is passed in favour of the plaintiffs and against the defendant.
80. The defendant and any agent on his behalf are also restrained by way of a permanent injunction from parting with possession or creating third party interest in the suit property.
81. The plaintiff is awarded the costs of the suit.
82. Let decree sheet be drawn up accordingly.
83. File be consigned to Record Room. Digitally signed VISHAL by VISHAL GOGNE GOGNE Date: 2021.01.30 03:52:16 +0530 Announced in the open Court (Vishal Gogne) on 29.01.2021 Additional District Judge05 (SouthWest) Dwarka Courts, New Delhi CS No. 343/18 Jai Pal & Ors vs Vinod Kumar Page 25 of 25