Delhi District Court
In Reference vs (I) Shri Gopal on 10 February, 2022
IN THE COURT OF SH. KUMAR RAHUL: CIVIL JUDGE :
NORTH DISTRICT, ROHINI COURTS : DELHI
Suit No. 37479/2016
CNR No. DLNT030002712012
In reference:
Smt. Madhu Kumari
W/o Shri Bal Karan Pal
R/o A1, 198
Sector17, Rohini
Delhi110085 ........... Plaintiff
VERSUS
(i) Shri Gopal
S/o Shri Shiv Ram
R/o J70, Gali No. 1, Khadda Colony
Swaroop Nagar,
Delhi110042
(ii) Shri Satnam Singh
C/o Goodwill property
Main Kaushak Raod
Swaroop Nagar
Delhi110042 .......... Defendants
Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 1 of 28
Date of Institution: 26.12.2011
Date of reservation of Judgment : 23.12.2021
Date of Judgment : 10.02.2022
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendants for permanent and mandatory injunction.
FACTS AS PER THE PLAINT :
2. The case of the plaintiff as per plaint is that the plaintiff is the absolute owner of the plot admeasuring 100 sq. yards, situated at Khasra No. 362, Gali No. 4, Khoda Colony, Swaroop Nagar, Delhi110042 (hereinafter referred as to the "suit property"). Plaintiff further stated that plaintiff purchased the suit property from erstwhile owner Sh. Anil Pal, S/o Lekh Ram, R/o 95, Pipal Thala, Delhi on the basis of Agreement to Sell, General Power of Attorney and registered Will duly registered with concerned Sub Registrar as document no. 11568, Book No. III, Vol. No. 1734 on page 3 dated 17.03.1993 and receipt of Rs. 50,000/ executed by Shri Anil Pal.
3. It is further case of the plaintiff that the defendant no. 1 is the owner of the plot admeasuring 150 sq. yards approx which is Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 2 of 28 adjacent to the plot of the suit property and that defendant no. 2 as per the knowledge of the plaintiff is a property dealer and who is also looking after the plot of the defendant no. 1. Plaintiff further stated that defendant no. 2 is not only a property dealer but also is acting as a Builder and involved in many illegal construction in other properties also.
4. Plaintiff further stated that he is presently residing at H.No. 5,24 Banglo, Near Power House, Umri Khera Khandwa Road, Indore, MP and occasionally come to Delhi. In the first week of December, when the plaintiff visited the suit property she was shocked to see that not only the boundary wall from the North side of the suit property has been demolished but also the same has been merged by the defendants in their property which is just adjacent to the suit property. Plaintiff further stated that defendants have therefore tried to grab the property of the plaintiff by constructing a private gali by demolishing the North side of the suit property. However, due to the intervention of locals and strong protest by the plaintiff, the defendant removed the aforesaid private Gali from the suit premises.
5. It is the further case of the plaintiff that the plaintiff thereafter tried to restore the boundary wall which was demolished by the defendants, but the defendant not only obstructed the labourers Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 3 of 28 engaged by the plaintiff, but also threatened them of the dire consequences. Subsequently, plaintiff made a written complaint to the local police station, but they refused to accept the same and no action was taken by them. Plaintiff thereafter submitted that there is great apprehension that defendants will not only dispossess the plaintiff from the suit property by taking the illegal possession and will merge the same with the property of the defendant no. 1. Plaintiff further stated that as the defendants have illegally demolished the boundary wall (more particularly shown in dotted line in the site plan) of the suit property, they are liable to rectify it by restoring the demolished area to its original position.
PRAYER:
6. Following reliefs have been sought on behalf of the plaintiff in the plaint:
(a) That a decree of permanent injunction may be passed in favour of the plaintiff and against the defendants thereby restraining defendants, their agents thereof from entering into the suit property and taking illegal possession of the suit property i.e. admeasuring 100 sq. yards, situated at Khasra No. 362, Gali No. 4, Khoda Colony, Swaroop Nagar, Delhi110045 more particularly shown as red in the site plan.
(b) That a decree of mandatory injunction may also be Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 4 of 28 passed in the favour of the plaintiff and against the defendant thereby directing the defendants to restore the demolished boundary wall to its original position and in view of it, damages for the same may kindly also be awarded in favour of the plaintiff and against the defendants.
(c) Cost of the suit be also awarded to the plaintiff and against the defendants.
DEFENCE:
7. The defendants in his WS taken various preliminary objections.
Firstly, defendants submit that the plaintiff is neither owner nor in occupation / possession of the suit property and therefore, the suit of permanent and mandatory injunction is not maintainable under the provisions of Specific Relief Act. Secondly, the defendants stated that the grievance of the plaintiff is regarding the boundary wall and khasra no. 362, whereas the defendant no. 1 has purchased the property having khasra no. 361 and therefore, the same is pure dispute of demarcation and such dispute can be settled and adjudicated by Dy. Commissioner and Tehsildar under the provisions of Delhi Land Reforms Act, 1954. Defendants further submit that the present matter in controversy comes within the purview of Delhi Land Reforms Act, 1954 and therefore, the jurisdiction of civil court under Section 185 of Act is barred and Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 5 of 28 therefore, the suit of the plaintiff is liable to be dismissed. Defendants further submit that the suit is barred under Section 41 (1) (b) of the Specific Relief Act as the plaintiff has not availed equal and efficacious remedy. Defendants submit that the plaintiff has suppressed the true and material facts and therefore, the discretionary relief of injunction cannot be granted. Defendants also submit that the mere suit for permanent and mandatory injunction is not maintainable under the provisions of law and therefore, the suit is liable to be dismissed.
8. On merits, the defendants denied the averments made in the plaint in toto. Defendants stated that the plaintiff has not submitted any registered documents regarding the ownership over the suit property. Defendants stated that the documents mentioned in the plaint do not confer any legal rights over the property as unregistered documents cannot be looked into. Defendants stated that no right, title and interest can be established on the basis of registered Will unless letter of administration as well as probate are obtained as per Indian Succession Act. In para no. 3, defendants stated that defendant no. 1 has purchased the property measuring area of 1 bigha and 4 Biswas, out of khasra no. 361, situated in Village Sirespur, Delhi, abadi is known as Swaroop Nagar, BlockK, Gali No. 3 & 4, Delhi110042 through defendant no. 2 and therefore, defendants no. 1 and 2 are known to each Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 6 of 28 other. Defendants have further denied that no boundary wall from the north side of the suit property has been demolished and the same has been merged by the defendants in their property which is adjacent to the suit property. Defendants further stated that they have never encroached upon the land, if any, belonging to the plaintiff or demolished any boundary wall as stated in the plaint. Defendants further stated that defendant no. 1 is owner of the property situated in khasra no. 361 and in possession and occupation of the said property.
REPLICATION:
9. Replication has not been filed in the present matter.
ISSUES:
10. After completion of pleadings, vide order dated 06.06.2015 following issues were framed: (1) Whether plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP (2) Whether plaintiff is entitled to the relief of mandatory injunction , as prayed for? OPP.
(3) Whether the suit property falls in Khasra no. 362 Khoda Colony, Swaroop Nagar as is alleged by the plaintiff or same falls in Khasra no. 361 as is alleged by the defendant? Onus on both the parties respectively.
Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 7 of 28DOCUMENTS & EVIDENCE LED BY PLAINTIFF:
11. In support of the case of the plaintiff, plaintiff has examined herself as PW1 by way of affidavit Ex.PW1/A wherein the plaintiff has repeated the contents of the plaint and same is not repeated for the sake of brevity. The plaintiff has further relied upon the following documents:
1. Site plan of the suit property is Ex.PW1/1.
2. Copy of Agreement to Sell is Ex.PW1/2.
3. Copy of General Power of Attorney is Ex.PW1/3.
4. Copy of affidavit is Ex. PW 1/4.
5. Copy of registered WILL is Ex.PW1/5.
6. Copy of receipt is Ex.PW1/6.
7. Copy of complaint to SDM, Narela is Ex. PW 1/7.
8. Copy of complaint to Police is Ex. PW 1/8.
9. Photographs of the suit property is Ex. PW 1/9.
10. Copy of demarkation dated 26.03.2012 submitted by the Revenue Department to this court is Ex.PW 1/10 & the report dated 21.07.2012 is Ex. PW 1/11.
12. In her crossexamination, plaintiff stated that her address in Madhya Pradesh is H.No. 5, Bunglow No. 24, Umri Kheda, Khandwa Road, Indore. She stated that at the time of purchasing Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 8 of 28 the suit property she was residing at Delhi. She further stated that she started living in MP since 2012. She stated that she is Graduate. She stated that she could read English but not able to understand the same but she knows little. She stated that she knew the contents of her affidavit. She stated that at the time of preparation of the affidavit, she was in Delhi. She stated that the affidavit which is Ex. PW 1/A was drafted prior to one and a half year. She further stated that the said affidavit got signed by her counsel at his house and the same was got attested in the court. She stated that the same was attested at the time when the same was signed by her. She stated that the property in question was purchased by her from Sh. Anilpal and the same was of 100 sq. yards. She further stated that the papers were executed in the court nearby ISBT, Kashmiri Gate and the witnesses are Arun Kumar (her nephew), Smt. Seema Rani & Sh. Laxminarain (her brother in law). She further stated that at the time when the present suit was filed she was residing in Bombay. She stated that at present, she was not in possession of the suit property. She further voluntarily submitted that when she visited the property in dispute in December, 2011 to see her property, she came to know that the defendants had illegally encroached some of the portion of the said property. She further denied the suggestion that she never remained in the possession of suit property after becoming aware of the above said encroachment in the part of the suit property.
Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 9 of 28She stated that The boundary wall of the suit property was mine at the time of encroachment. She further replied with affirmative that the measurement of the suit property is 16X52 sq. yards. She stated that she had no idea regarding the width of road in front of her property. I do not remember the direction about the side of the road to my property. She further denied the suggestion that she never purchased the suit property from Mr. Anil Pal. She further denied the suggestion that since she never purchased the suit property from Anil Pal nor visited the suit property as such she was not aware regarding the exact direction of my property. She further denied the suggestion that suit property does not belong to her. PW1 further stated that after starting to reside in Indore, MP she has visited so many times to Delhi and stayed with her sister at the address of Rohini. She further stated that she did not make any inquiry personally regarding the suit property before purchasing of the same, but the same was inquired her brother in law. She further replied with affirmative that the suit property is of Gram Sabha. PW1 however denied the suggestion that the suit property does not belong to her. PW1 denied the suggestion that the photographs filed by her are not of the suit property. She further stated that although her permanent address is of Indore, Madhya Pradesh but the address which is mentioned in her affidavit is also correct as she used to stay with her sister in Delhi. PW1 denied the suggestion that she narrated the story mentioned Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 10 of 28 in the plaint only to grab the suit property. She also denied the suggestion that she was deposing falsely.
13. Plaintiff's evidence was closed vide her separate statement on 16.08.2019.
DOCUMENTS & EVIDENCE LED BY DEFENCE
14. In defence, defendant no 1 and defendant no 2 examined themselves as DW1 and DW 2 by way of affidavit Ex.DW1/A and DW1/B respectively wherein the defendants have repeated the contents of the written statement and same is not repeated for the sake of brevity. Defendant has also examined one Shri Hari Om as DW3 by way of affidavit Ex DW1/3. Defendant no 1 has further relied upon the following documents:
(a) Copy of agreement to sell Ex.DW1/1 is now de exhibited as Mark A.
(b) Copy of affidavit Ex.DW1/2 is now de exhibited as Mark B.
(c) Copy of declaration by previous owner Ex.DW1/3 is now de exhibited as Mark C,
(d) Copy of receipt of payment Ex.DW1/4 is now de exhibited as Mark D,
(e) Copy of possession letter Ex.DW1/5 is now de exhibited as Mark E,
(f) Copy of deed of Will of Smt. Triveni Devi Ex.DW1/6 is now Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 11 of 28 de exhibited as Mark F,
(g) Copy of deed of Will of Sh.Ajaib Singh Ex.DW1/7 is now de exhibited as Mark G and
(h) Copy of complete previous chain Ex.DW1/8 is now de exhibited as Mark H.
15. In his crossexamination, DW1 stated that the affidavit of his evidence as exhibited as Ex.DW1/A has been prepared by advocate on his instruction and he is aware of the contents of the same. During crossexamination, it is however observed by the court that the affidavit contains provision of law and not facts which are in the knowledge of witness and no purpose would be served by questioning the witness on the legal points as he is not aware of the law. DW1 replied in affirmative that the plot in dispute comes in Khasra no.362. He further stated that his entire land comes in Khasra no.362. He stated that in Khasra no.362, he is having a total 1200 sq.yd land approximately. He further stated that he did not know whether the documents mark A to H are pertaining to khasra no.361 or 362. He further stated that he did not remember as to whether he had made any statement before the predecessor of this Hon'ble Court in the present case that he had no concerned with the land of Khasra no.362. He further answered in affirmative that the demarcation order was passed by the predecessor of this court to the revenue department and the Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 12 of 28 demarcation report was submitted to this Hon'ble court by the revenue department. DW1 further replied in affirmative that he had mentioned before the officials of revenue department stating that he was not satisfied with the demarcation made by the said department and he will do the same by TSR machine. However, DW1 again stated that he had not stated before the revenue department for getting the demarcation done by TSR but it was stated by revenue department themselves. He further stated that he did not know as to whether the plaintiff has her own plot of 100 sq.yd adjacent to his land. He further voluntarily stated that the whole plot measuring 1200 sq.yds belongs to him. He further stated that he did not have any document in respect of khasra no.
362. He stated that he is owner of the Khasa no.361 and he has the ownership document of the same. He denied the suggestion that he forcibly in connivance with defendant no.2 attempted to merge the plot of 100 sq.yds khasra no.362 belonging to the plaintiff with his land situated in Khasra no.361. He further denied the suggestion that the plaintiff has made any police complaint against me. He further denied the suggestion that plaintiff has made any complaint to the office of SDM. He denied the suggestion that any dispute was occurred in respect of the plot in question between him and plaintiff. He further denied the suggestion that he has ever tried to encroach the land of Khasra no.362. He also denied the suggestion that he was deposing falsely.
Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 13 of 2816. In his crossexamination, DW2 stated that he knew the contents of his affidavit Ex. DW1/2. He stated that he was not the owner of land falling in Kh. No. 361. He further stated that he had wrongly mentioned his statement in Para 7 of his affidavit that he had purchased the property falling in Kh. No. 361 from Smt. Triveni Devi. He further stated that he did not know as to whether the plot of 100 sq. yds in kh. No. 362 belongs to plaintiff. He further voluntarily stated that he has never seen the plaintiff in the suit property. He replied with affirmative that Kh. No. 362 is existing with kh. No. 361 in Swaroop Nagar, Delhi. He stated that he was present during the demarcation which was conducted by the order of the Ld. Predecessor of this Hon'ble Court. He stated that the demarcation report submitted by the Revenue Department bears his signature at point A on Ex. PW1/10. He further stated that he was not doing any work at present. He stated that he was doing the work of sale and purchase of properties in the year 2011 along with some other person. He stated that he was doing the said work with his own name. He stated that he did not remember as to whether the defendant no. 1 made the statement before the Predecessor of this Hon'ble Court that the defendant No. 1 has nothing to do with Kh. No. 362. He denied the suggestion that in the year 2011 he wanted to grab the property of plaintiff forcibly. He denied the suggestion that that he was deposing falsely in the Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 14 of 28 present case.
17. DW3 in his affidavit by way of evidence stated that he is defendant no 3 and resides near the suit property. DW3 further stated that Ram Gopal Gupta, i.e., defendant no 1 has a large land in Khasra No 361. Swaroop Nagar, Delhi. DW further stated that previously, the suit property belonged to Smt Trivenu Devi and Ajaib Singh whom he knew personally and in the year 2011, the previous owner sold the suit property to Ram Gopal Gupta and since then he is in possession of the same.
18. In his crossexamination, DW3 stated that he was not a party in this case in the present case. He further stated that he is not defendant No. 3 in the present case. He further stated that the statement in para 1 of his affidavit is incorrect. He further stated that he has been sent to depose in the present case by the defendant No. 1. He stated that defendant No. 1 is his neighbour whom he knew for the last 20 years. He stated that defendant No. 1 does not have any land in Kh. No. 362. He further stated that defendant No. 1 is having a land only in Kh. No. 361. He further denied the suggestion that he was deposing falsely.
FINAL ARGUMENTS:
19. Final arguments were heard at length on behalf of parties. Parties Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 15 of 28 have also filed respective written submission.
FINDINGS OF THE COURT:
20. My issuewise findings are as under:
Issue 3: Whether the suit property falls in Khasra no. 362 Khoda Colony, Swaroop Nagar as is alleged by the plaintiff or same falls in Khasra no. 361 as is alleged by the defendant? Onus on both the parties respectively.
21. Before adverting to this issue, it is pertinent to note that Ld predecessor of the court vide order dated 28.12.2011 recorded the statement of defendant no 1 that he had purchased plot in Khasra No 361 and he had no concern whatsoever with the land situated in Khasra no 362, i.e., suit property. Ld predecessor of this court accordingly directed concerned SDM for demarcation of the suit property. Thereafter, demarcation report was filed on 23.07.2012. As per the said demarcation report, it is stated by concerned official that Khasra No 361 & Khasra No 362 are separated through a wall. The concerned official also prepared the site plan of the suit property which indicates that the disputed area falls under Khasra No 362. However, defendant stated his objection on the said report stating that he is not satisfied with status report and requested to carry out demarcation process through TSR machine.
Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 16 of 28Further, status report was also filed during pendency of the present suit by concerned Patwari on 03.05.2013. As per the said status report, it is stated that Khasra No 362 falls within area of Gram Sabha and it is further stated that presently, an entire colony is developed on the said land.
22. In order to prove this issue, plaintiff has relied upon report of Revenue Department exhibited as PW 1/10 and report dated 03.05.2013 by SDM exhibited as Ex PW1/11. PW1 also in her evidence by way of affidavit stated that as per the said report submitted with site plan, the disputed area comes under Khasra No 362. Ex PW1/10 is demarcation report (filed by office of Tehsildar, Narela) and prepared by Revenue Department, the disputed area falls under Survey No 362. No cross examination was conducted by the defendant in respect of deposition being made by the plaintiff that the disputed area falls under Survey No 362 and hence, the deposition of PW1 goes unrebutted.
23. On the other hand, there is no whisper in the evidence of DWs as to whether disputed area falls under survey no 361. During cross examination, it is observed by Ld predecessor of this court that the affidavit contains provision of law and not facts which are in the knowledge of witness and no purpose would be served by questioning the witness on the legal points as he is not aware of Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 17 of 28 the law. The documents as filed by defendant no. 1 in support of his case was also not proved as per law and therefore, the same was deexhibited. Moreover, during crossexamination, DW1 replied in affirmative that the plot in dispute comes in Khasra no.362 and he further stated that his entire land comes in Khasra no.362. DW1 also expressed his ignorance about the statement which he earlier gave that he had no concern with the land in survey number 362. DW1 also stated that he did not have any document in respect of Khasra No 362 and he is owner of Khasra No 361. Therefore, the crossexamination of the defendant leads to the conclusion that the defendant no 1 has no right whatsoever with respect to survey number 362.
24. Thus, plaintiff has proved the fact that the suit property/disputed area falls in Khasra no. 362 Khoda Colony, Swaroop Nagar, Delhi. Issue no. 3 is, accordingly, decided in favour of plaintiff and against defendants.
Issue 1: Whether plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP
25. The onus to prove this issue regarding entitlement for the relief as prayed in the suit was upon the plaintiff. Plaintiff has sought permanent injunction to restrain defendants from entering Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 18 of 28 into the suit property and taking illegal possession of the suit property. Section 37(2) of the Specific Relief Act, 1963 provides that a permanent injunction can only be granted by a decree at the hearing and upon the merits of the case. Section 38 of the Specific Relief Act, 1963 deals with perpetual injunction, which may be re produced herewith as follows: "Perpetual injunction when granted.
(1)Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation exist ing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the ac tual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 19 of 28(d) where the injunction is necessary to prevent a multiplic ity of judicial proceedings.
26. The Hon'ble Supreme Court in Balkrishna Dattatraya Galande V Balkrishna Rambharose Gupta 2019 SCC Online SC 135 held that in a suit seeking permanent injunction the burden lies on the Plaintiff to prove possession by producing cogent evidence and there is no question of possession being inferred or presumed. The Hon'ble Apex Court further observed that for seeking relief under Section 38 of the Specific Relief Act, the Plaintiff filing such a suit has to prove that he is in actual possession as on the date of the suit for seeking permanent injunction. It was observed that: ".....The party seeking injunction based on the averment that he is in possession of the property and seeking assistance of the Court while praying for permanent injunction restraining other party who is alleged to be disturbing the possession of the plaintiff, must show his lawful possession of the property."
27. The case of the plaintiff is based on the averment that she is abso lute owner of the suit property and is in possession of the suit property. In order to prove her case, plaintiff examined herself as PW 1 by way of affidavit Ex. PW 1/A and relied upon the several documents to prove that she is the owner of the suit property and Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 20 of 28 in lawful possession of the suit property. Plaintiff has relied on ti tle documents namely Agreement to Sell exhibited as Ex.PW1/2, General Power of Attorney exhibited as Ex.PW1/3, Affidavit ex hibited as Ex. PW 1/4, registered Will exhibited as Ex.PW1/5, Re ceipt exhibited as Ex.PW1/6. Ld counsel for defendant has vehe mently contended that no registered document has been placed by Plaintiff and therefore the same cannot be relied. It is pertinent to note that the said title documents as relied by Plaintiff were exe cuted on 17th March 1993 by one Anil Pal in favour of plaintiff. The Hon'ble Supreme Court in Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC) held that GPA, Agreement to Sell, Will and receipt would not confer ownership rights in respect of immovable property. However, in the present case, Plaintiff had purchased the suit property in the year 1993 much prior to the judgment of Hon'ble Supreme Court in Suraj Lamp's case. Accordingly, her transaction on the basis of GPA/Agreement to Sell etc. is not hit by judgment of Hon'ble Apex Court in Suraj Lamp's case. More over, it is nowhere the case of defendant that he has any right/title whatsoever on suit property, i.e., survey no 362. Defendant has consistently taken the stand that defendant no 1 is owner of adja cent land, i.e., survey no 361 and he has nothing to do with suit property.
Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 21 of 2828. In order to prove the possession over the suit property, plaintiff has proved the ownership documents executed in her favour. Plaintiff has deposed that plaintiff is permanent resident of Madhya Pradesh and occasionally used to come to Delhi and stayed in the house of sister. It is further deposed by Plaintiff that in the first week of December 2011, when the plaintiff visited the suit property, she was shocked to see that not only the boundary wall from the North side of the suit property has been demolished but also the same has been merged by the defendants in their property which is just adjacent to the suit property. Plaintiff has further deposed that defendants have also tried to grab the property of the plaintiff by constructing a private gali by demolishing of the North side of the suit property. It is further deposed by plaintiff that due to the intervention of locals and strong protest by the plaintiff, the defendant removed the aforesaid private Gali from the suit premises. It is further deposed by plaintiff that she thereafter tried to restored the boundary wall which was demolished by the defendants, but the defendant not only obstructed the labourers engaged by the plaintiff, but also threatened them of the dire consequences. During cross examination plaintiff has stated that she was not in possession of the suit property. However, she voluntarily stated that when she visited the property in dispute in December, 2011 to see her property, she came to know that the defendants had illegally Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 22 of 28 encroached some of the portion of the said property. She also denied the suggestion that she never remained in the possession of suit property after becoming aware of the above said encroachment in the part of the suit property. Ld counsel for plaintiff submitted that plaintiff intended to state that she was not in possession of the suit property at the time when cross examination was being conducted. However, Ld counsel for defendants vehemently argued that plaintiff was never in possession of the property as the same may be inferred from her crossexamination as she was unable to state even width of road in front of suit property and direction about the side of the road to suit property. However, the said minor discrepancies/omission to state details are not fatal to the case of the plaintiff as the same does not affect the main substance of the case. Plaintiff has, however, stated the measurement of suit property. Merely that the plaintiff was not able to state width of the road in front of suit property and direction about the side of the road to suit property do not lead to draw adverse inference with resepct to possession if, plaintiff is able to prove her possession over the suit property by cogent evidences.
29. On the other hand, DW1 and DW2 deposed by way of affidavit in evidence exhibited as DW 1/A and DW 1/B that plaintiff is not in possession of the suit property and therefore, the suit for Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 23 of 28 mandatory and permanent injunction will not lie. It is further deposed that DW1 has purchased the property having Khasra No 361, while the grievance of the plaintiff is regarding Khasra No 362 and therefore, it is a pure dispute of demarcation nature. The documents as relied by DW1 are merely the photocopies on record and not proved at all as per the Indian Evidence Act. Therefore, the same was deexhibited. During crossexamination, DW1 expressed his ignorance about the statement which he earlier gave that he had no concern with the land in survey number
362. DW1 also stated that he did not have any document in respect of Khasra No 362 and he is owner of Khasra No 361. Therefore, the crossexamination of the defendant no 1 leads to the conclusion that the defendant no 1 has no right whatsoever with respect to survey number 362. Further, DW2 in para 7 of his evidence by way of affidavit stated that he is actual owner of the property in question as he purchased from one Smt Triveni Devi. However, during crossexamination, DW2 changed her version that he had wrongly mentioned in his affidavit that he had purchased the property falling in Khasra No 361 from Smt Triveni Devi. There is nothing in the evidence of DW2 which supports the case of defendants. Next, DW3 who is neighbour of DW1 in his crossexamination supported the case of plaintiff. DW3 stated in crossexamination that defendant no 1 does not have any land in Khasra No 362 and he is having land only in Khasra No 361.
Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 24 of 28Therefore, evidence of DW3 also proves the fact that the DW1, i.e., defenenat no 1 has no right whatsoever on land falling under Khasra No 362, i.e., suit property. There is nothing in the evidence of DW3 which indicates that plaintiff was not in possession of the suit property ever and therefore, she is not entitled for permanent injunction as prayed for.
30. Reference may also be drawn of the Hon'ble Apex Court in the case of Anathula Sudhakar v P Buchi Reddy (Dead) By LRs and Others (2008) 4 SCC 594, wherein the Hon'ble Court held that where the property is vacant site, which is not physically possessed, used or enjoyed, the principle that possession follows title would apply and if two persons claim to be in possession of a vacant site, one, who is able to establish a title thereto, will be considered to be in possession as against the person, who is not able to establish title. Coming to the present case, defendant has assailed the case of plaintiff on the ground that the plaintiff was not in actual possession of the suit property. However, it is admitted fact that the suit property is vacant plot of 100 sq yds and plaintiff has proved her ownership over the suit property. Therefore, applying the principle laid down in the case of Anatulah Sudhakar (Supra), it may safely be concluded that plaintiff is in possession of this suit property.
Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 25 of 2831. Plaintiff has further proved complaint letter addressed to SDM, Narela and SHO, Swaroop Nagar PS exhibited as EX PW 1/7 and Ex PW1/8 respectively to support her case that defendants intended to encroach on the suit property belonging to plaintiff.
32. It is well settled law that a civil suit is decided on the preponderance of probabilities and the balance of probabilities supports the case of the plaintiff in the present suit. The plaintiff has established her title and possession in the suit property. On the other hand, the defendant's case that he has right/title over the adjacent land situated adjacent to suit property and the present controversy is essentially a dispute of demarcation does not disentitle the plaintiff from relief of permanent injunction qua suit property in view of the fact that plaintiff has successfully proved her ownership and lawful possession over the suit property.
33. Therefore, the plaintiff has successfully proved that she was in ac tual and lawful possession of the suit property on the date of filing of the suit and therefore, plaintiff is entitled for decree of perma nent injunction as prayed. Accordingly. Issue no (2) is decided in favour of the plaintiff and against defendants.
Issue 2: Whether plaintiff is entitled to the relief of mandatoryinjunction, as prayed for? OPP Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 26 of 28
34. Plaintiff has sought mandatory injunction to restore the demol ished boundary wall to its original position. Section 39 of the Spe cific Relief Act deals with the relief of Mandatory Injunction and is granted where it is necessary to prevent the breach of an obliga tion of the erring party, and the party may be compelled to per form certain acts. Plaintiff has deposed that in the first week of December 2011, when the plaintiff visited the suit property, she was shocked to see that not only the boundary wall from the North side of the suit property has been demolished but also the same has been merged by the defendants in their property which is just adjacent to the suit property. It is also deposed by plaintiff that she tried to restore the boundary wall which was demolished by the defendants, but the defendant not only obstructed the labourers engaged by the plaintiff, but also threatened them of the dire consequences.
35. Plaintiff has also relied on photographs exhibited as Ex PW 1/9.
However, the same cannot be taken into consideration in absence of proper proof. Plaintiff has failed to prove the exact nature of wall situated if any to enable the court to pass any direction. Plain tiff has also sought relief of damages for alleged wall. However, no evidence has been led by plaintiff in support of damages as sought. Therefore, issue no (3) is decided against plaintiff and in favour of defendant.
Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 27 of 28RELIEF:
36. In view of the aforesaid facts and circumstances, the suit of the plaintiff is partly decreed in favour of the plaintiff and against the defendant. A decree of permanent injunction is passed restraining the defendants and their representatives from entering into the suit property and taking illegal possession of the suit property, i.e., plot admeasuring 100 sq. yards, situated at Khasra No. 362, Gali No. 4, Khoda Colony, Swaroop Nagar, Delhi110042 as shown in the site plan.
37. No order as to costs is made.
38. Decree sheet be prepared accordingly.
39. File be consigned to the record room after necessary compliance.
ANNOUNCED IN THE OPEN COURT ON 10.02.2022 (KUMAR RAHUL) CIVIL JUDGE (NORTH) ROHINI/DELHI/10.02.2022 Suit No.37479/2016 Smt. Madhu Kumari Vs. Smt. Madhu Kumari Page 28 of 28