Delhi District Court
Ram Kishore vs Radhey Shyam Page No. 1/28 on 16 January, 2023
IN THE COURT OF SH SACHIN JAIN, ADDL. DISTRICT
JUDGE - 02, SOUTH WEST DISTRICT, DWARKA
COURTS, DELHI
CS DJ ADJ No.17325/2016
CNR No.DLSW010047592016
IN THE MATTER OF:
1. Ram Kishore
S/o Late Sh Chandgi Ram
2. Smt Kela Devi
W/o sh Ram Kishore
3. Raj Kumar
S/o sh Ram Kishore
All R/o:
Village and PO Kangan Heri
New Delhi ... Plaintiffs
v.
Sh Radhey Shyam
S/o Late Ram Chander
R/o Village & PO Kangan Heri
New Delhi ... Defendant
Date of institution of suit 22.02.2012
Date of order reserved: 16.12.2022
Date of pronouncement: 16.01.2023
JUDGMENT
1. The plaintiff filed the present suit for recovery of possession and damages on the ground that the late father of the defendant, namely, Shri Ram Chand S/o Shri Roop Chand CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 1/28 (hereinafter referred as 'Original Owner') was the recorded owner of land measuring 4 bigha 17 biswas comprised in Khasra no. 207/1 (4-12) and Khasra No. 207/2 (0-5) situated within the revenue estate of Village Kangan Heri, New Delhi. It is further stated that the original owner firstly sold the land measuring 0-10 biswa comprised in Khasra no, 207/1 i.e. 500 sq. yards through documents of conveyance i.e. GPA, Agreement to sell etc. on 10.10.1983 to one Srichand, Mangal Singh and Amar Singh all sons of Sh. Pat ram and subsequently, the original owner sold an area measuring 4 bighas 5 biswas i.e. 4250 sq. yards, out of the above said land bearing Khasra Nos. 207/1 and 207/2 through 8 registered Sale Deeds and General Power of Attorney to plaintiff no.1 alongwith his immediate family members and close relations detailed as follows:
(a) Sale Deed dated 16.08.1994 executed by Shri Ram Chand in favour of the Plaintiff No. 1 in respect of 500 square yards bearing Khasra No. 207/1 being document No. 7540, Book No. 1, Volume No. 7724 at Pages 92-96.
(b) Sale Deed dated 08.12.1995 in respect of Khasra No. 207/1 measuring 500 square yards being Document No. 18799 Book No. 1, Volume No. 8223 at Pages 26-30 executed by Shri Ram Chand in favour of the Plaintiff No. 1.
(c) Sale Deed dated 18.08.1994 executed by Shri Ram Chand in favour of the Plaintiff No. 2 in respect of 500 square yards bearing Khasra No. 207/1 being document No. 7630, Book No. 1, Volume No. 7720 at Pages 92-96;
(d) Sale Deed dated 08.12.1995 in respect of the land measuring 500 square yards bearing Khasra No. 207/1 being Document No. 18798 Book No. 1, Volume No. 8223 registered at Pages 21 to
25. CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 2/28
(e) Sale Deed dated 08.12.1995 executed in favour of Plaintiff No.3 bearing Document No. 18796 Book No. 1 Volume No. 8223 at Pages 11-15 in respect of land comprised in Khasra No. 207/1 measuring 500 square yards.
(f) Sale Deed dated 08.12.1995 in respect of the land comprised in Khasra No. 207/1 measuring 500 square yards in favour of Shri Mahender Singh (real nephew of the Plaintiff No. 1), being Document No. 18797 Book No. 1 Volume No. 8223 at Pages 18 to 20.
(g) Sale Deed dated 08.12.1995 in respect of 500 square yards comprised in Khasra No. 207/1 wife of the real nephew of the Plaintiff No.1 being Document No. 18795 Book No. 1 Volume No. 8223 at Pages 6 to 10.
(h) Sale Deed dated 08.12.1995 in favour of Shri Ramesh Kumar, another nephew of the Plaintiff No. 1 in respect of 500 square yards being Document No. 18794 Book No. 1 Volume No. 8223 registered at Pages 1 to 5.
AND had also transferred his land comprised in Khasra No. 207/2 (0-
05) biswa vide a G.P.A. dated 10.12.1995 executed by him in favour of the Plaintiff No. 2 Smt. Kela Devi.
2. Thus, by way of eight sale deeds and one GPA, he had sold, alienated and transferred all his land to the Plaintiffs and others except a portion measuring (0-02) biswas i.e. 100 sq. yards comprising in khasra no. 207/1, over which a residential house was constructed by him during his lifetime and which is presently in occupation of one of the sons, namely Shri Jai Bhagwan and therefore, Original owner or his successors in interest were not left with any right or title in respect of the land in suit.
CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 3/283. It is further stated that Smt. Uma Devi wife of Shri Gajraj sold, alienated and parted with possession of her 500 square yards purchased by her from Shri Ram Chander through a registered Sale Deed which was executed by her in favour of Smt. Suman Yadav on 23.02.1998 and similarly Shri Ramesh Yadav also sold, alienated and transferred his portion measuring 500 square yards out of Khasra No. 207/1 to Shri Manohar Lal through another Sale Deed dated 23.02.1996 and thus, the Plaintiffs on the basis of the sale deeds and the GPA executed by Late. Sh. Ram Chander are the owners in respect of an area measuring 3000 square yards out of Khasra No. 207/1, and another 250 square yards out of Khasra No. 207/2. However they are in occupation and possession of an area measuring 2750 square yards only.
4. It is further stated that the subject matter of the suit is the portion of the aforesaid land purchased by the Plaintiffs through 8 registered Sale Deeds and the G.P.A. forming part of khasra no.207/1 and which is more clearly shown in red colour in the site plan annexed herewith. The same shall hereinafter be referred to as the "suit property" and is bounded as under:
East- Portion Khasra No. 207/1 & 207/2 West- House of Manohar and Suman South-Main Road North- House Ved Ram and Ram Mahar
5. It is further stated that the suit property is the residential house of the Plaintiffs comprising of 3 rooms, a verandah, a kitchen and two tin sheds rooms as depicted in the site plan which was constructed by the Plaintiff No.1 and his nephew, namely Shri Mahender Singh after purchasing the same in the aforesaid manner, The plaintiff no.1 besides constructing this CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 4/28 residential house also raised other constructions over the entire remaining portion of the purchased land which is in their exclusive possession since then. Similarly, the transferee of Smt. Uma Devi and Shri Ramesh have also raised construction of a house over the portion measuring 500 square yards purchased by them and are residing therein alongwith their family members and which property is situated on the Western side of suit property.
6.It is further the case of the plaintiffs that the defendant is one of the son's of the original owner. He was not in occupation of any residential house on account of the fact that, his father late Sh. Ram Chander had sold the entire land except a portion measuring 100 sq. yards retained by him over which a residential house was constructed by him. The defendant in the year 1996 approached the plaintiff no.1, being Karta of the Joint family to permit him to use and occupy the suit property as a licensee for some time on the ground that he was not having any suitable accommodation in the Village and the plaintiff no. 1 considering the request and seeing the fact that the house owned by the two sons of Sh. Ram Chander was insufficient for both of them and also considering the fact that the defendant belonged to the same village was not having any other suitable or sufficient accommodation with him, permitted the defendant to use the suit property as a licensee and the defendant is using and occupying the suit property since 1996 with the express consent and of the Plaintiffs.
7. It is further stated that in the month of December, 2009 that due to the expanding needs of the Plaintiffs and their family members, the defendant was requested by the Plaintiffs to vacate and hand over the suit property to the Plaintiffs. The defendant upon request of the Plaintiffs promised to vacate the premises CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 5/28 and hand over the actual vacant possession of the suit property to the Plaintiffs on or before 31.01.2010 and Plaintiff no.1 keeping in mind his request thus permitted him to retain the suit premises upto 31.01.2010.
8. It is further stated that plaintiff no.1 again approached the defendant on 01.02.2010 and demanded vacant peaceful possession of the suit property, however, the defendant instead of vacating and handing over the possession of the premises abusing him and flatly refused to vacate the suit property. He further started claiming that the same belongs to him and that he shall not vacate the suit premises under any circumstances whatsoever.
9. The plaintiffs seeing his conduct immediately revoked the license of the defendant and demanded the actual vacant possession of the suit property immediately. However, the defendant having flatly refused to hand over the actual possession of the suit property is not willing to vacate the same.
Since the license of the defendant to use and occupy the premises stands revoked by the Plaintiffs and as such, the defendant has become an unauthorized occupant in respect thereof and is therefore not entitled in law to retain possession of the suit property.
10. Lastly, it is stated that the defendant is not only liable to hand over the actual vacant possession of the suit property to the plaintiffs, but is also liable to pay damages in the shape of use and occupation charges to the plaintiffs at the rate of Rs. 4000/- p.m. only w.e.f. 01.02.2010 till the time he hands over the actual physical possession of the suit property to the plaintiffs, even though the suit plot can fetch a rent of Rs. 10,000/- per month easily.
11. It is further stated that the Plaintiffs had initially filed a suit CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 6/28 for recovery of possession before the District Court, Dwarka, New Delhi upon legal advise. However, the said suit being suit No. 212/2010 was withdrawn by the plaintiff's on 03.12.2011 with liberty to file a fresh suit on the same cause of action, hence the present suit.
12.On the basis of the above pleadings, the following reliefs have been claimed:
(a) Pass a Decree of Possession in favour of the plaintiffs and against the defendant in respect of the suit property as depicted in red colour in the site plan and built over the land of Khasra No. 207/1 in the extended abadi deh of Village Kaganheri, New Delhi.
(b) Pass a Decree for Damages / Mesne profits @ Rs. 4,000/-
p.m. in favour of the Plaintiffs and against the Defendant w.e.f. 01.02.2010 and future and future and pendent-lite damages/ mesne profits at the same rate may also be granted alongwith interest @ 12% p.a. from the date of filing of the suit till realization.
(c) Award cost of the suit in favour of the plaintiffs and against the defendants or such further order which this Hon'ble Court may deem fit and proper under the facts and of the case may also be passed in favour of the plaintiffs and against the Defendants.
13. Pursuant to the issuance of summons, defendant filed his written statement and he denied the case of the plaintiffs in toto, he took the preliminary objections regarding the maintainability of the suit on the ground that the plaint fails to disclose a cause of action, the suit is barred by limitation and the suit is without cause of action as the plaintiffs are not the owners of the suit property and have no right, title or interest therein. The sale deeds filed with the plaint do not establish that the plaintiffs are CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 7/28 owner of the suit property. The fard khatoni filed by the plaintiff himself shows that the defendant is owner of a part of Khasra no. 207/1 of Village Kangan Heri.
14. It is further contended by the defendant that Late Ram Chander, father of the answering defendant was the recorded bhumidhar of agriculture land situated in village Kanganheri, Delhi. During the consolidation proceedings, Late Ram Chander was allotted Khasra No 207/1(4-12) in lieu of land surrendered by him to Gaon Sabha and Khasra No 207/2(0-5) was declared as Kayami during the consolidation proceedings as part of said khasra number was built up house.
15. It is further contended that Late Ram Chander in the year 1994 had sold some land to some persons but the sale deeds filed with the plaint do not appear to be genuine or bearing the thumb impressions or signatures of father of defendant i.e Late Sh. Ram Chander.
16. That during his lifetime Late Sh. Ram Chander was in possession of 850 sq. yds of land i.e land measuring 600 sq. yards comprising in Khasra no. 207/1 (0-12) and land measuring 250 sq. yards comprising in khasra no. 207/2(0-5) duly recorded in the revenue records i.e. in Khatoni of the extended lal dora abadi of Village Kangan Heri, which was inherited by the defendant and his brother Jai bhagwan and they divided the land amongst themselves equally. Thus defendant is in possession of 425 sq. yds. of land on which he has built up the house and cattle shed etc.
17. That the site plan filed by the plaintiffs is not correct and correct Site plan showing the possession of the defendant and his brother in green colour is filed with the written statement.
18. That the defendant and his brother and prior to them their CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 8/28 father have remained in open, continuous, peaceful possession of this entire 850 sq. yds. of land as owners to the knowledge of all and sundry. Particularly the plaintiffs were well aware of the claim of the defendant and his predecessor as the plaintiff no. 1 had tried to raise a dispute sometime in 1996 with the father of the defendant when he had refused to part with possession of the house and thereafter on 20.3.1996 it was finally settled that the plaintiff no. 1 shall never visit the house of Sh. Ram Chander (father of defendant) and shall not purchase the house and that he has no dispute with Ram Chander. Thus, the plaintiff no. 1 was well aware that even if he had a sale deed of the suit property then also the defendant and his predecessors were not willing to vacate the same and if the plaintiff intended to claim the suit property then he could have claimed it within 12 years from the date of sale deed. Now the present suit is hopelessly barred by limitation and the plaintiff has no right to recover possession from the defendant or his brother as the defendant is entitled to maintain his possession by virtue of adverse possession.
19. That the suit suffers from misjoinder and non-joinder of necessary parties. The alleged purchasers of Khasra no. 207/1 are not parties to the suit and the plaintiffs cannot be representatives of the others for recovering possession.
20. In parawise reply, the defendant reiterated the stand taken by him in the preliminary objections and it is further the case of the defendant that his father never executed any GPA/Agreement/Will/Receipt etc. qua Khasra no. 207/2 on 10.12.1995 or any other date and even otherwise such a sale is illegal and not recognized by law.
21. It is however admitted by the defendant that Sh. Manohar Lal and Smt. Suman Yadav are in possession of 1000 square CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 9/28 yards of land out of Khasra No. 207/1 adjacent to the house of defendant.
22. It is also submitted that the location of the house of defendant as stated in para 6 of the plaint is correct. It is denied that the plaintiff no. 1 and his nephew Sh. Mahender Singh constructed the house on suit property. The suit property is not in the ownership of plaintiffs or Sh. Mahender Singh. However, it is admitted by the defendant that Sh. Manohar Lal and Smt. Suman are residing in the property located to the west of house of defendant but it is contended that the plaintiffs never purchased any property to the east of the properties purchased by Smt. Uma Singh and Sh. Ramesh Kumar. The marked portion of the land cannot be identified as suit property and the sides mentioned in the para no. 6 of the plant do not tally with sale documents filed with the suit. Plaintiffs have no concern whatsoever with the property described in this para and are not the owners thereof.
23. It is further contended that the answering defendant never made any request to the plaintiff for permissive user as the defendant always believed himself to be the owner in possession of the property which was lawfully mutated in revenue records in his name. The defendant has exercised all instances of ownership by availing electricity and water connections which has been evident to the plaintiffs. Plaintiffs never objected either to mutation of land in favour of the defendant and his brother in the year 1996, or to the availing of electricity and water connections or to the construction of the house.
24. In replication plaintiff denied the contentions raised by the answering defendant and reiterated the stands taken by him in the plaint. Plaintiff specifically denied the settlement with the late father of the defendant.
CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 10/2825. On the basis of the pleadings of the parties, the following issues were framed:
(1)Whether the parties entered into an oral settlement? If so,its effect? ...OPD (2)Whether the suit is liable to be rejected for want of cause of action? ...OPD (3)Whether the suit is barred by limitation?
...OPD (4)Whether the suit is bad for misjoinder and non joinder of necessary parties? ...OPD (5)Whether the plaintiff is entitled to a decree of possession of suit property? ...OPP (6)Whether the plaintiff is entitled to recover damages for use and occupation from the defendant? If so at what rate? ...OPP (7)Relief
26. In order to prove his case, plaintiffs examined plaintiff no.1, namely, Ram Kishore as PW1 who tendered his evidence by way of affidavit Ex.PW1/A and also relied upon the following documents:
(1) The sale deed dated 16.08.1994 as Ex.PW1/1; (2) The sale deed dated 08.12.1995 as Ex.PW1/2; (3) The sale deed dated 18.08.1994 as Ex.PW1/3; (4) Sale deed dated 08.12.1995 as Ex.PW1/4; (5) Sale deed dated 08.12.1995 executed by Ram Chander in favour of plaintiff no.3 - Ex.PW1/5;
(6) Sale deed dated 08.12.1995 executed by Ram Chander in favour of Mahender Singh as Ex.PW1/6;
(7) Sale deed dated 08.12.1995 executed by Ram Chander in favour of Smt Uma Devi as Ex.PW1/7;
(8) Sale deed executed by Ram Chnder in favour of Ramesh Kumar as Ex.PW1/8;
(9) General power of attorney executed by Ram Chander in CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 11/28 favour of the wife of the plaintiff no.1 as Ex.PW1/9; (10) Agreement to sell and purchase executed by Ram Chander as Ex.PW1/10;
(11) Affidavit executed along with above said document as Ex.PW1/11;
(12) Receipt consideration executed by Ram Chander as Ex.PW1/12;
(13) WILL executed by Ram Chander along with above documents as Ex.PW1/13 and (14) Certified copy of order dated 03.12.2011 as Ex.PW1/14 NOTE: The documents Ex.PW1/7 and Ex.PW1/8 were initially de-exhibited and marked as Mark-A and B as these were the photocopies but later on the sale deed Mark-B was admitted by PW-3 and the same was again exhibited as Ex. PW3/DX-1.
27. Shri Nand Kishore, Sh Jagdish and Mr Ramesh Chand appeared in the witness box as PW2,PW3 and PW-3 and tendered their evidence by way of affidavit Ex.PW2/A, Ex PW3/A and Ex PW3/A.
28. Shri Surender Kumar appeared in the witness box as PW4 and tendered his evidence by way of affidavit Ex.PW4/A and relied upon document already Ex.PW1/9 to Ex.PW1/13.
29. Ms. Getanjali Malik, JJA, Record Clerk, Record Room Sessions South West District, Dwarka Courts, New Delhi has appeared in the witness box as PW-5 and she has brought the summoned i.e. suit titled Ram Kishore v. Radhey Shyam - Goshwara No.151/D pertaining to CS No.121/2011 and proved the certified copy of plaint and order dated 03.12.2011 as Ex.PW5/A(OSR) and Ex.PW5/B(OSR).
30. Shri Rajesh Sharma, Patwari, Tehsil Kapashera appeared in the witness box as PW6, he has produced the record i.e. khatoni CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 12/28 pertaining to the year 1989-1990 of village Kanganheri and proved a certified copy thereof as Ex.PW6/A(OSR)
31. Shri Rajesh Sharma, Patwari, Tehsil Kapashera again appeared as witness box as PW7 and proved the summoned record i.e. Khatoni register of the year 2002-2003 of village Kanganheri containing the certified copy of extracts of khatoni of khta no.194/114 min in the name of Karamvir, Deepender Yadav, both sons of late Shri Manohar Lal, as Ex.PW7/A, certified copy of extract of khatoni of khata No.198/114 min in the name of Smt Kela Devi W/o Ram Kishorre along with khatoni of khata NO.199/114 min in the name of Ram Kishore S/o Chandgi Ram Ex.PW7/B; certified copy of extract of khatoni of khata no.196/114 min in the name of Raj Kumar S/o Ram Kishore along with khatoni of khata no.197/114 min in the name of Mahender Singh Yadav S/o Shri Jug Lal as Ex.PW7/C.
32. Shri Dharmender Kumar appeared in the witness box as PW8 and proved the map/site plan marked as ExPW8/1. During the cross examination PW-8 admitted the site plan handed over by the plaintiff to the defendant alongwith the summons and the copy of the site plan is Ex PW8/DX-1.
33. On the other hand, the defendant examined himself as DW1 by tendering evidence by way of affidavit Ex.DW1/A and he has also relied upon the documents i.e.
(i) certified copy of Fard Khatoni issued on 11.11.2013 as Ex.DW1/1,
(ii) original site plan as Ex.DW1/2, electricity bills dated 22.03.2011 and 29.02.2012 as Ex.DW1/3 and Ex.DW1/4 respectively,
(iii) original bill issued by DESU on 31.05.1994 as Ex.DW1/5,
(iv) complaint lodged on 11.04.1994 with police as Ex.DW1/6, CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 13/28
(v) complaint lodged on 13.091.1996 as Ex.DW1/7,
(vi) complaint lodged on 12.02.1996 as Ex.DW1/8,
(vii) postal receipt as Ex.DW1/9,
(viii) complaint dated 12.02.1996 to Prime Minister as Ex.DW1/10 and postal receipt Ex.DW1/11,
(ix) complaint lodged vide DD No.15B dated 23.06.2009 as Ex.DW1/12 and copies of complaints made to ACP and DCP as Ex.DW1/13 and Ex.DW1/14.
34. During the cross examination DW-1 has admitted the following documents i.e. sale deed bearing vasika No. 54 dated 19.05.1997 alongwith intkal- mutation No. 357 approved on 25.10.2004 which are marked as Ex DW1/PX-1 (10 pages in total) an dvasika No. 5463 dated 15.02.1996 alongwith intkal - mutation No. 356 approved on 25.10.2004 which are marked as Ex DW1/PX-22 (22 pages in total)
35. Defendant also examined Shri Bahadur Singh as DW2 who has tendered his evidence by way of affidavit as Ex.DW2/A.
36. I have heard the arguments addressed by the learned counsel for the parties and have minutely gone through the pleadings; evidence oral as well as documentary led by the parties and has given my thoughtful consideration. Findings:
37. This Court deems appropriate to decide the issue no. 5 and 6 first as the onus to prove both the issues is on the plaintiffs.
38.It is the case of the plaintiffs that the late father of the defendant has sold 4500 sq.yds of out of total land of 4600 sq. yards comprising in khasra no.207/1 by way of eight sale deeds i.e.(1) by way of sale deed in favour of plaintiff no.1 Ram Kishore, dated 16.08.1994 of land measuring 500 sq.yds. out of khasra no.207/1 exhibited as Ex.PW1/1, (2) by way of sale deed CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 14/28 in favour of plaintiff no.1 Ram Kishore, dated 08.12.1995 of land measuring 500sq.yds. out of khasra no.207/1 exhibited as Ex.PW1/2, (3) by way of sale deed in favour of plaintiff no.2 Smt. Kela Devi W/o Ram Kishore, dated 18.08.1994 of land measuring 500sq.yds. out of khasra no.207/1 exhibited as Ex.PW1/3, (4) by way of sale deed in favour of Smt. Kela Devi W/o Ram Kishore, dated 08.12.1995 of land measuring 500sq.yds. out of khasra no.207/1 exhibited as Ex.PW1/4, (5) by way of sale deed in favour of plaintiff no.3 Shri Raj Kumar, dated 08.12.1995 of land measuring 500sq.yds. out of khasra no.207/1 exhibited as Ex.PW1/5, (6) by way of sale deed in favour of Mahender Singh, nephew of plaintiff no.1 Ram Kishore, dated 08.12.1995 of land measuring 500sq.yds. out of khasra no.207/1 exhibited as Ex.PW1/6, (7) by way of sale deed in favour of wife, namely, Smt Uma Devi of the nephew of plaintiff no.1 Ram Kishore, dated 08.12.1995 of land measuring 500sq.yds. out of khasra no.207/1 exhibited as Ex.PW1/7, (8) by way of sale deed in favour of another nephew, namely, Ramesh Kumar of plaintiff no.1 Ram Kishore, dated 08.12.1995 of land measuring 500sq.yds. out of khasra no.207/1 exhibited as Ex.PW1/8 and even sold the 5 biswa land comprising in khasra no. 207/2 of village kanganheri by way of set of documents Ex. PW-1/9 to Ex. PW-1/13.
39. It is also the case of the plaintiffs that out of the 8 plots purchased by the plaintiff no.1 and his family members, two plots of 500 sq. yards were further sold by Smt. Uma and Sh. Ramesh to Smt. Suman and her husband Sh. Manohar and now they are the owners of 5 plots of 500 sq. yards each and the suit property measuring 500 sq. yards is one of the 5 plots purchased by the plaintiff no.1 and his family members. The factum of CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 15/28 selling of plots by Smt. Uma Devi and Sh. Ramesh to Smt. Suman and Sh. Manohar stands admitted by the defendant in his written statement. It is also admitted by the defendant that the plot of 1000 sq. yards of Sh. Manohar and Smt. Suman is on the west of the plot of the defendant.
40. It is further the case of the plaintiffs that the suit property was given on oral license by plaintiff no.1 to the defendant on his request for residential purpose on the ground that the house of 100 sq. yards left by the father of the defendant is not sufficient for both the brothers.
41. Whereas it is the case of the defendant that as per khatoni/farad, his late father was owner of the land measuring 850 sq. yards i.e. 600 sq. yards comprising in khasra no. 207/1 and 250 sq. yards comprising in khasra no. 207/2 and the late father was in possession of the same since 1996 and dispute arose between the plaintiff no.1 and his late father as back as in 1996 itself and his late father had made various complaints against the plaintiff no.1 and the matter was settled as per settlement Ex. PW1/DA and thereafter, the defendant and his brother divided the land in equal shares and after construction of the house he is residing in plot measuring 425 sq. yards as shown in site plan filed alongwith the written statement. He denied the factum of oral license as claimed by the plaintiff no.1.
42. Therefore, the initial burden is on the plaintiffs to prove the creation of oral license between the plaintiff no.1 and the defendant and also that the suit plot belongs to either of the plaintiffs in affirmative.
On creation of oral license
43. Plaintiffs in order to prove the oral license, firstly examined two witnesses i.e. PW-2 and PW-3, who deposed in the CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 16/28 their respective evidence by way of affidavit that it is in their knowledge that the defendant requested the plaintiff no.1 to give the suit property for residence purpose and the plaintiff no.1 had given the same to the defendant. However, in cross examination PW-2 admitted that he was not present when the discussion between the plaintiff no.1 and the defendant took place. He is not aware with regard to the dispute between the plaintiffs and the defendant and even he is not aware about the contents of his evidence by way of affidavit Ex. PW-2/A. Similarly, PW-3 deposed during cross examination that he do not understand the meaning of words 'Licensee' as mentioned in para no. 9 of his affidavit in evidence. He further admitted that no talks between plaintiff no. 1 and defendant ever took place in his presence.
44.Plaintiffs also examined PW-4 Sh. Surinder Kumar, property dealer and nephew of the plaintiff no.1 to prove the oral license; however, he also in his cross examination admitted that no transaction between the plaintiff no.1 and the defendant for taking the suit property on rent took place in his presence.
45. Thus, the plaintiff no.1 has miserably failed to prove the creation of oral license in respect of the suit property with the defendant in affirmative.
46.On the other hand the plea of the defendant that the area measuring 600 sq. yards in khasra no. 207/1 still stands in the name of the their father, which after the death of the father stands mutated in the name of the defendant and his brother stands proved from the testimony of PW-7 Patwari Sh. Rajesh Sharma of Tehsil Kapashera, who was called as witness by the plaintiffs. In cross-examination, he specifically deposed that in Khasra no. 207/1 min village Kanganheri, 12 biswa land i.e. 600 sq. yards is in the name of defendant and his brother Jai Bhagwan both sons CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 17/28 of Ram Chander. Thus, the plea of the plaintiffs that after sale of entire land in khasra no. 207/1 to Srichand and the plaintiff no.1 and his family members, the father of the defendant left with only 100 sq. yards of land in khasra no. 207/1 stands negated.
47. Similarly, the defendant in his evidence by way of affidavit Ex. DW-1/A, has tendered the certified copy of the Fard Khatoni issued on 11.11.2013 as Ex. DW-1/1 and admittedly, the same was not disputed by the plaintiffs during cross examination of the defendant and as per the said fard khatoni, area measuring 0-5 biswa i.e. 250 sq. yards is also reflecting in the name of the defendant and his brother Jai Bhagwan sons of Ram Chand.
48.Further, the plea of the plaintiffs that the house was built by the father of the defendant on the area measuring 100 sq. yards in khasra no. 207/1 and the same at present is in the possession of the brother of the defendant also stands contradicted by the plaintiffs themselves in the cross examination of the defendant, wherein question in the form of suggestion put to the defendant as to when the house on khasra no. 207/2 was built, he specifically deposed that the house on khasra no. 207/2 was recorded kayami in consolidation proceedings (chakbandi) and it is correct that kayami was established for land admeasuring 250 sq. yards under khasra no. 207/2. The relevant portion of the testimony is reproduced herein for better understanding :
" It is incorrect that my father had a residential house on khasra no. 207/1. My father had a residential house of 850 sq. yards on khasra no. 207/1 and khasra no. 207/2. The house built on khasra no. 207/2 is 30 to 35 years old. The house on khasra no. 207/2 is approximately 385-90 sq. yards. It is incorrect that the house on khasra no. 207/2 was built prior to chakbandi. The chakbandi happened in CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 18/28 the year 1971 and the house was built in the year 1972. It is wrong to suggest that the house was built prior to the chakbandi. But it is correct that during consolidation proceedings, the house on khasra no. 207/2 was recorded as kayami. It is correct that kayami was established for land admeasuring 250 sq. yards under khasra no. 207/2."
49. Surprisingly, the plaintiffs themselves have put the suggestion to the defendant that house on khasra no. 207/2 was built prior to the chakbandi, which further demolishes the case of the plaintiffs. Thus, it stands established that apart from the land measuring 600 sq. yards comprising in khasra no. 2071, a land measuring 250 sq. yards is still in the name of the defendant and his brother and further, there is a house of 250 sq. yards comprising in khasra no. 207/2 since 1971-72 duly recorded as kayami in chakbandi proceedings which is in possession of the brother of the defendant and not a house of 100 sq. yards comprising in khasra no. 207/1 as claimed by the plaintiffs in the plaint.
50. It is also apposite to mention that the plaintiff no.1 in his evidence admitted that the site plan (Ex. PW-1/D1) relied upon by the defendant is correct as per site and he has filed the suit only with respect to khasra no. 207/1 and not in respect of khasra no. 207/2. On perusal of the site plan filed by the defendant, towards east of the plot of Manohar measuring 1000 sq. yards, defendant has shown himself to be in possession of area measuring 425 sq. yards and shown his brother Jai bhagwan in possession of area measuring 175 sq. yards comprising in khasra no. 207/1 and area measuring 250 sq. yards comprising in khasra no. 207/2. Hence, the admission of the plaintiff that site plan is correct as per the site further demolishes the case of the CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 19/28 plaintiffs.
On identification of suit plot
51. Apart from the fact that the plaintiffs failed to prove the oral license, it is also relevant to observe that the plaintiffs even failed to establish that the suit property (suit plot) belongs to them as much as in para no.6 of the plaint, plaintiffs have simply mentioned that the suit property is one of the plots purchased by the plaintiff no.1 and his family members from the father of the defendant and it is also claimed that the after construction on the suit property by the plaintiff no.1 and his nephew Mahender Singh, the suit property on request of the defendant was given as license for residential use. However, it is not specifically mentioned by the plaintiffs that out of the five plots of 500 sq. yards, which were purchased by them from the late father of the defendant, the suit property belongs to which one of the plaintiffs as admittedly, Mahender Singh who is also owner of one of the plots of 500 sq. yards purchased by him vide sale deed Ex. PW- 1/6, has not joined the plaintiffs in the present suit.
52. On the other hand, it is the contention of the defendant in the para wise reply, that the location (boundaries) of the house in possession of the defendant as shown in para no. 6 of the plaint has been correctly mentioned by the plaintiffs but neither the plaintiffs nor the nephew of the plaintiff no.1 namely Mahender Singh is the owner of the said property as on the west side of the property of the defendant is the house of Sh. Manohar and Smt. Suman wife of Sh. Manohar, which was sold by Smt. Uma (wife of one of the nephew of the plaintiff no.1) and Sh. Ramesh (nephew of plaintiff no.1) and on the east side of the suit property is the remaining area of khasra no. 207/1 and 207/2 and the plaintiffs as per boundaries mentioned in the 8 sale deeds have CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 20/28 not purchased any plot east to the plots purchased by Smt. Uma and Sh. Ramesh as admittedly, the plots of Smt. Uma and Sh. Ramesh were the last plots purchased towards east side of the khasra no 207/1 adjoining the remaining portion of khasra no. 207/1 of Village Kanganheri.
53. Even the Ld. Counsel for the defendant argued that if copy of all 8 sale deeds relied upon by the plaintiffs are perused, none of the plots have the same boundaries as mentioned by the plaintiffs in para no.6 of the plaint.
54. The Ld. Counsel for the defendant has further drawn the attention of this Court to the testimony of plaintiff no.1 who entered the witness box as PW-1 and also to the testimony of the PW-3, Ramesh Chand, nephew of the plaintiff, erstwhile owner of one of the plot of 500 sq. yards, which was sold by him to Sh. Manohar, to buttress his argument that from the cross examination of both PW-1 &PW-3, it stands proved that in khasra no. 207/1, on the west side first plot belongs to Srichand and others and thereafter, as per the boundaries mentioned in the sale deeds and the testimony of PW-1 and PW-3, towards east side of the plot of Srichand & others, first 5 plots belongs to plaintiff nos. 1 to 3, 6th plot belongs to Mahender Singh, 7th plot belongs to Sh. Ramesh, which was sold by him to Sh. Manohar and 8th and the last plot belongs to Smt. Uma Devi, which she has sold to Smt. Suman wife of Manohar and thereafter, on east side is the remaining land of khasra no. 207/1 and also of Khasra no. 207/2.
55. The Ld. Counsel argued that once it is established that the plaintiffs were never the owner or on possession of any plot towards the east side of the last plot of Smt. Uma devi, how they can claim that the suit plot belongs to them towards the east side CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 21/28 of plot of Sh Manohar.
56. Per- contra, the ld. Counsel for the plaintiffs have argued that the testimony of PW-1 and PW-3 cannot be read in a piecemeal manner and the same has to be read as a whole, he drew the attention of the court to the testimony of PW-1 and PW- 3, to substantiate the fact that it is specifically deposed by PW-1 (plaintiff no.1) that initially when two plots of 500 sq. yards were purchased vide sale deed Ex. PW-1/1 & PW-1/3, physical possession of the property was not taken as the entire property was lying vacant and it is only when the remaining 6 plots were purchased together on 08.12.1995 vide sale deeds, Ex. PW-1/3 to PW-/5, PW3DX1 and Mark-A, the actual possession of the land was taken and construction was carried out in different portions and the status of the adjoining properties have changed.
57. The Ld. Counsel further submitted that even PW-3, in his testimony has deposed that after the purchase of 8 plots from the father of the defendant, they have divided the plots among themselves as per convenience and the plot sold by him to Manohar lal is not having the sides which are mentioned in the Ex.PW3/DX1 and hence, the plea of the counsel for the defendant that plaintiffs failed to prove that the suit property actually belongs to the plaintiffs is not sustainable.
58. After hearing the submissions and going through the testimony of PW-1 and PW-3, firstly, it is observed that the deposition of the witnesses that after purchasing the 8 plots they have mutually divided the plots between themselves as per their convenience and not occupied the plots as per the boundaries mentioned in the 8 sale deeds, is directly hit by the provisions of Section 91 and 92 of the Indian evidence Act,1872, which specifically provides that once the contents of a document CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 22/28 reduced into writing are duly proved, no oral evidence for the purpose of contradicting, varying, adding to or subtracting the term of the document can be allowed. Admittedly, in the present case nothing has came in the evidence of the plaintiffs that any written document was ever executed between the vendees regarding mutual exchange of plots.
59. Secondly, even if it is assumed that the plots were mutually exchanged, the entire plaint is bereft of necessary pleadings to this effect and also no evidence has been lead by the plaintiffs that who is in possession of the plot of whom? Whether the suit plot was exchanged by plaintiff no.1, 2 or 3 with Ramesh Kumar or Smt. Uma Devi or by Mahender Singh with either Ramesh Kumar or Uma devi?
60. Lastly, even if it is believed for the sake of argument that the plots were mutually exchanged, apart from the plaintiffs, Mahender Singh is also owner of one of the plots; the entire plaint is again bereft of the pleadings about the status of the plot of Mahender Singh as to whether he was in possession of his plot at the time of the filing of the present suit on 20.02.2012 or not. On the contrary, it has came in the cross examination of the plaintiff no.1 that during the pendency of the present suit, he has purchased the plot of Mahender Singh by way of GPA. The original GPA, agreement to sell, receipt, Will, possession letter, affidavit all dated 01.05.2004 were place on record but plaintiff no.1 has not tendered the above set of documents in evidence, but as he himself admitted in cross-examination about the purchase of the plot of Mahender Singh, the documents can be read against the plaintiff no.1 by virtue of Section 21 read with Section 32 and Section 58 of the Indian Evidence Act, 1872 as the statement of the plaintiff no.1 is a self serving statement.
CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 23/2861. On perusal of the set of documents dated 01.05.2004, it is observed that Mahender Singh shown himself to be the owner of the suit plot by mentioning the same boundaries as mentioned in para no. 6 of the plaint and sold the same to the plaintiff no.1 by way of above set of documents and this in the considered opinion of this Court is the final nail in the coffin put by the plaintiffs against themselves as much as if Mahender Singh was the owner of the suit plot, how plaintiff no.1 can give the same as a license to the defendant in the year 1996 as the suit plot has been shown to have been purchased by plaintiff no.1 only in 2004? Even it is not the pleadings of the plaintiff no.1 that he gave the suit plot for residential purpose to the defendant on express or implied authority of the Mahender Singh.
62. Hence, this court is of the considered view that the plaintiffs have also miserably failed to prove that they were the owner of the suit plot towards the east of the plot of 1000 sq. yards of Sh. Manohar and Smt. Suman.
63. Lastly, it was also one of the arguments of the Ld. Counsel for the plaintiff that the defendant failed to prove the settlement between his father and the plaintiff no.1 as claimed by him in the written statement and it was also argued that the defendant is claiming the ownership over the suit plot by way of adverse possession, which by way of necessary implication means that he is admitting the ownership of the plaintiffs over the suit plot and therefore, burden of the plaintiffs to prove the ownership over the suit plot stands discharged.
64. This Court is of the considered view that it is settled position of law that the plaintiff cannot take advantage of the weak defence of the defendant and he is duty bound to discharge the burden first in terms of Section 101 read with Section 102 of CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 24/28 the Indian Evidence Act,1872 and it is only thereafter, the onus shifts upon the defendant unless the defendant admits the claim of the plaintiff but raises a counter plea, which is not the case in the present matter as admittedly, the defendant from the very threshold denied the case of the plaintiffs in toto. Hence, this Court is of the considered view that the plea of the Ld. Counsel for the plaintiff is not sustainable.
65. In circumspection of the facts and circumstances as discussed and observed above after taking into consideration the pleadings, evidence and the rival arguments of the Ld. Counsel for the parties, the issue no.5 is decided against the plaintiffs and in favour of the defendant and as a necessary corollary, issue no.6 also stands decided against the plaintiffs.
Issue no. (1)Whether the parties entered into an oral settlement? If so, its effect? ...OPD
66. At the outset is it observed that after going through the pleadings of the parties especially the written statement, factum of any oral settlement has not been pleaded anywhere by the defendant and in fact it is the case of the defendant that his late father was owner of 850 sq. yards of land in Khasra no. 207/1 (0-
12) i.e. 600 sq. yards and Khasra no. 207/2 (0-5) i.e. 250 sq. yards and the plaintiff no.1 tried to raise a dispute sometime in 1994-1996 with his father when the late father refused to part with the possession of the house and in this regard his late father filed various complaints against plaintiff no.1 starting from 11.04.1994 to 12.02.1996 ( Ex. DW-1/6 to Ex. DW-1/10) and the plaintiff no. l ultimately settled the matter vide written settlement dated 20.03.1996 with the late father of the defendant, wherein plaintiff no.1 had given undertaking that he will never visit the CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 25/28 house of father of the defendant nor purchase the house and there is no quarrel between us.
67. On the other hand it is the claim of the plaintiffs in replication that the settlement dated 20.03.1996 is a forged and fabricated document but in cross examination, when the photocopy of the settlement was put to the plaintiff no.1, he admitted that he has given in writing that he would not go the house of late father of the defendant and even admitted the same as Ex. PW-1/DA but at the same time he deposed that the date written on the writing as 20.03.1996 is wrongly mentioned as he has given this settlement after execution of the sale deed.
68. This Court at the time of dictation of judgment while going through the documents of the defendant even found the original settlement on record and on perusal of the same it is observed that the date 20.03.1996 is in different ink from the ink used for the purpose of writing the settlement. It is also observed that the settlement is also bears signature of 4-5 persons.
69.This Court is of the considered view that once the plaintiff no.1 denied the date of the execution of the settlement, the onus was on the defendant to prove that the settlement was signed on 20.03.1996 but admittedly, he neither called anyone of the persons who have appended their signatures on the written settlement to prove that the written settlement was executed on 20.03.1996.
70. This Court is also of the considered view that the written settlement dated 20.03.1996 relied upon by the defendant even otherwise also is not of any help of the defendant as admittedly, in the written settlement there is no description of the property which was allegedly under dispute between the Late father of the defendant and defendant.
CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 26/2871. Further, defendant never called any person from the concerned department of the police to prove the complaints Ex. PW-1/6 to 1/10, pursuant to which the written settlement has been claimed to have given by the plaintiff no.1 to the father of the defendant.
72. Hence, in absence of any concrete proof on record, this court has no hesitation to conclude that no doubt the plaintiff no.1 admitted the written settlement but the defendant has failed to prove that the settlement was executed on 20.03.1996 and the same is in relation to the suit property. Accordingly, the issue in question is decided against the defendant and in favour of the plaintiffs.
Issue no. (2)Whether the suit is liable to be rejected for want of cause of action? ...OPD
73. The necessary pleadings of the plaintiffs have already been reproduced by this Court in the opening paragraphs of the judgment and after perusal of the same it cannot be said that the plaint is bereft of any cause of action however, it cannot be confused with the preposition that the plaintiff failed to prove that cause of action in his favour for the purpose of grant of reliefs as prayed for.
Issue no. (3)Whether the suit is barred by limitation?...OPD
74. The onus to prove the issue in question was on the defendant. The plea of the defendant that the suit of the plaintiffs is barred by limitation in the present suit is a mixed question of fact and law. However, no evidence has been led by the defendant during the course of trial, thus, the issue is decided against the defendant and in favour of the plaintiffs.
CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 27/28Issue no.(4)Whether the suit is bad for misjoinder and non joinder of necessary parties? ...OPD
75. In view of the detailed discussion and findings of this Court on Issue no. 5 & 6, it is observed that it was never the case of the plaintiffs that the suit plot belongs to either Mahender Singh or Manohar or Suman rather it is their specific case in para no.6 of the plaint that suit property is the residential house of the plaintiffs comprising of 3 rooms, a verandah, a kitchen and two tin shed rooms as depicted in the site plan which was constructed by the plaintiff no.1 and his nephew Mahender Singh after purchasing the same in the aforesaid manner.
76. Thus, as plaintiffs claimed that the suit property exclusively belongs to them, no question of non-joinder or mis-joinder of necessary parties is made out and on the other hand, the defendant has not led any evidence to show that how the suit is bad for non-joinder or mis-joinder of necessary parties. Hence, the issue is decided against the defendant in favour of the plaintiffs.
77. On the basis of my issue-wise findings especially on issue no. 5& 6, the suit of the plaintiffs is hereby dismissed.
78. Decree sheet be drawn accordingly.
79. File be consigned to record room only after due completion and necessary action, as per Rules. SACHIN Digitally signed by SACHIN JAIN JAIN Date: 2023.01.17 16:11:10 +0530 Pronounced in the open Court (Sachin Jain) on 16.01.2023 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi Dkg CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 28/28 CS DJ ADJ No. 17325/16 Ram Kishore vs. Radhey Shyam Page No. 29/28