Delhi District Court
Chandan Singh vs Sumarti Devi on 21 February, 2024
RCA Civil DJ ADJ 50/23 Page 1 of 41
IN THE COURT OF SH. DIVYANG THAKUR, LD. ADJ-03,
DWARKA COURTS, DELHI
RCA CIVIL DJ ADJ : 50/2023
CNR No. DLSW01-004532-2023
In the matter of :
Sh. Chandan Singh
S/o Sh. Ganeshi Lal
R/o A-1/66, Gali no.2,
Raja Puri, Uttam Nagar,
New Delhi - 110059 ........Appellant
Versus
1. Smt. Sumarti Devi
W/o Late Sh. Rati Ram Singh
2. Sh. Rajesh Kumar
3. Sh. Raj Kumar
4. Late Sh. Naresh Kumar
Sons of Late Sh. Rati Ram Singh
Through his legal heir Ms. Bhawna
All R/o A-1/66, Gali no.2, Raja Puri,
Uttam Nagar, New Delhi - 110059 ......Respondents
Date of institution of the appeal : 09.05.2023
Final Arguments Heard on : 23.12.2023
Date of Order : 21.02.2024
FINAL DECISION : Dismissed
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 2 of 41
APPEAL UNDER SECTION 96 CPC AGAINST IMPUGNED
JUDGMENT DATED 14.10.2022 PASSED BY LD. CIVIL JUDGE
DWARKA COURTS, DELHI IN SUIT NO.425937/2016
JUDGMENT / ORDER :-
1. Vide this judgment, I shall decide the regular civil appeal which
has been filed against the judgment / decree dated 14.10.2022, passed
by the then Ld. Civil Judge, Dwarka Courts, Delhi in case bearing
Case No. 425937/16 (hereinafter referred to as 'impugned order') vide
which the ld. Trial court dismissed the suit of the plaintiff/appellant
herein. The Plaintiff had filed a suit for mandatory injunction against
the Defendants praying for directions that they may vacate the suit
properties. For the sake of convenience, the parties shall be referred
to by their original positions before the ld. trial court.
2. The case of the plaintiff as averred in the plaint is as follows :
(i) The plaintiff is the exclusive owner and in possession of built up
property bearing no.A-1/66, Gali no.2, Rajapuri, Uttam Nagar, New
Delhi - 110059 (hereinafter referred to as 'suit property'). The
plaintiff permitted the defendants to live on the ground floor (area
measuring approx.40 sq. yds.) having one room with kitchen,
bathroom and store without roof / terrace rights on the said premises
bearing no.A-1/66, Gali no.2, Rajapuri, Uttam Nagar, New Delhi -
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 3 of 41
110059 (shown in red colour in the site plan) as a licensee being his
'bhabhi' W/o Late Sh. Rati Ram.
(ii) The plaintiff gave one room with kitchen, bathroom and store to
the defendants for a short period without any license fee. After that,
when the children of the defendants matured and started earning their
livelihood, the plaintiff requested the defendants to vacate the
premises but the defendants postponed the matter on one pretext or the
other.
(iii) Since there is no written deed or agreement between the
defendants and the plaintiff in respect of the above said
premises/property, under the law it is deemed as a licensee from
month to month terminable on the part of the plaintiff or the
defendants by one month notice.
(iv) The plaintiff in order to comply with the legal requirements of
affecting the termination of the license duly sent to the defendant no.1
an eviction notice through his counsel. The said notice dated
23.02.2015 was addressed to the defendants in accordance with law,
the plaintiff exercising his right to terminate the abovesaid license
w.e.f. 25.03.2015 and accordingly the defendants were called upon to
hand over vacant physical possession of the abovesaid property under
her occupation. It was also mentioned in the notice that w.e.f.
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 4 of 41
26.03.2015, the defendants shall be akin to that of a trespasser and
shall be liable to pay Rs.500/- per day as damages till the possession is
handed over to the plaintiff. But the defendants did not comply with
the terms of the said legal notice. Hence, the present suit was filed for
prayer of mandatory injunction against the Defendants directing them
to remove themselves and their effects from the suit property and also
for a decree of mesne profits and permanent injunction.
3. The suit was instituted on 27.08.2015 and summons of the suit
alongwith notice of the application u/o XXXIX R 1 and 2 CPC were
issued to the defendants on 16.10.2015 which were duly served. On
18.11.2015, the defendant entered appearance through her counsel and
copy of plaint and annexures were supplied to them. They were
directed to file Written Statement alongwith reply to the application
u/o XXXIX R 1 and 2 CPC within 30 days which were filed on
18.11.2015. On 16.12.2015, Written Statement alongwith application
u/o VII R 11 CPC and reply to application u/o XXXIX R 1 and 2 CPC
was filed on behalf of the defendants. An application seeking
condonation of delay in filing Written Statement was filed which was
allowed vide order dated 18.01.2016.
4. In the Written Statement filed by the defendants, it is averred
that the present suit is not maintainable and is liable to be dismissed
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 5 of 41
since the plaintiff has not approached the court with clean hands and
suppressed material facts. It is further averred that no cause of action
arose in favour of plaintiff and against the defendant. It is further
averred that the defendants are in continuous uninterrupted possession
of the suit property from the last more than 33 years as the complete
owners, therefore the defendant is the owner of the suit property on
account of adverse possession as defendants have continuously
residing in the suit property since 1982 i.e. since the time of purchase
of suit property by the husband of defendant no.1 and father of
defendants no.2 to 4. It is further averred that the suit of the plaintiff is
not maintainable as this court has no jurisdiction to entertain the
present suit as value of the suit property is more than 30 lacs. It is also
averred that the suit is liable to be dismissed under Order VII R 11
CPC as the suit of the plaintiff is filed without any cause of action.
She has averred that the suit property was purchased by late Sh. Rati
Ram Singh, Sh. Karambir Singh and plaintiff as they are real brother
and since the date of its purchase, all brothers are residing in the said
premises peacefully. It is also averred that the defendants are residing
in the said premises since 1982 and the original documents of the said
property are with the plaintiff since life time of the husband of
defendant no.1 and defendant many times has requested to give the
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 6 of 41
original papers but plaintiff postponed the matter with one or other
pretext. It is also averred that on 28.12.2010, the plaintiff alongwith
their associates came at the spot and started demolishing the wall of
the defendants and when the defendant requested not to demolish the
same, the plaintiff gave threats that he was going to sell the entire
property because he was having all the original documents on which
the defendant no.1 called as 100 number and the matter was reported
to SHO P.S. Dabri on 29.01.2010. It is further averred that on
30.12.2010 at about 05.00 PM, the plaintiff came at the spot with
some goondas and tried to forcibly dispossess the defendant from the
suit premises and after some intervention, they left the spot and
threatened the defendant to come again and dispossess the defendants.
Thereafter, defendant made a complaint to SHO concerned.
Thereafter, the defendant filed a civil suit no.05/2011 against the
plaintiff.
5. On 18.02.2016, reply to the application of defendant u/o VII R
11 CPC, replication and rejoinder to the reply to the application u/o
XXXIX R 1 and 2 CPC were filed by the plaintiff. On 27.04.2016, the
application u/o XXXIX R 1 and 2 CPC was dismissed. On
04.10.2016, arguments on the application u/o VII R 11 CPC were
heard and vide order dated 05.11.2016, the said application was
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 7 of 41
allowed and the plaint of the plaintiff was rejected. Thereafter, the
order of rejection of plaint was set aside by the court of Sh. Sanjay
Khanagwal, Ld. ADJ, Dwarka Courts, Delhi and directions were given
to proceed with the suit as per law.
6. On 04.07.2017, on the basis of pleadings, the following issues
were framed :
(i) Whether the defendants have become owners of the suit
property on account of adverse possession? OPD.
(ii) Whether the suit property was purchased by the husband of
defendant no.1 and father of defendants no.2 to 4 i.e. Late Sh. Rati
Ram Singh? OPD.
(iii) Whether the suit of plaintiff is not valued properly for the
purpose of court fees? OPD.
(iv) Whether the plaintiff is entitled to the relief of mandatory
injunction as per prayer 'a' of the plaint? OPP.
(v) Whether the plaintiff is entitled to the relief of damages as per
prayer 'b' of the plaint? OPP.
(vi) Whether the plaintiff is entitled to the relief of permanent
injunction as per prayer 'c' of the plaint? OPP.
(vii) Relief.
Thereafter, the matter was fixed for PE.
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 8 of 41
7. On 23.08.2017, an application u/o XIV R 5 CPC was moved on
behalf of the defendant which was dismissed as not pressed. Affidavit
of evidence of plaintiff was filed.
8. On 10.10.2017, PW Sh Chandan Singh was examined as PW-1.
He tendered his evidence by way of affidavit Ex.PW-1/A and relied
upon the following documents:
(i) GPA, Affidavit, Agreement to Sell and Receipt dated
09.08.1982 are Ex.PW-1/1 to Ex.PW-1/4 respectively.
(ii) Site plan is Ex.PW-1/5
(iii) Legal notice dated 23.02.2015 is Ex.PW-1/6
(iv) Reply dated 18.12.2013 to the legal notice is Ex.PW-1/7
(v) Postal receipts and courier receipt are Ex.PW-1/8 to Ex.PW-
1/10.
(vi) Copy of ordersheets of another civil case titled as 'Karamveer
Singh and Ors. vs Chandan Singh and Ors.' are marked as A, B and C
respectively.
9. On 22.11.2017, he was cross examined. In his cross
examination, he has deposed that he allowed the defendant to stay at
the suit premises after the death of Mr. Rati Ram and before the death
of Sh. Rati Ram, all the defendants except Smt. Sumarti Devi had
been living in Nangal Rai, Delhi. He further deposed that Smt.
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 9 of 41
Sumarti Devi had been living in Village Achheja Khurd, District
Buland Shehar, UP, at that time and Raj Kumar and his elder brother
were staying in Nangal Rai, Delhi. On 17.01.2018, the matter was sent
to Mediation Centre for settlement as both the parties stated that the
matter is likely to be settled but the same was not settled. On
21.05.2018, he denied that there was any water connection in the
name of Sumarti Devi installed in the suit property. He further
admitted that there was electricity connection in the name of Smt.
Sumarti Devi installed in the suit property and he himself had installed
the same in the name of Smt. Sumarti Devi. He further deposed that
one room, one store and one toilet and bathroom were constructed in
the suit property when the suit property was given to Smt. Sumarti
Devi for the purpose of residing. He further admitted that he had
complained to the police station regarding unauthorized construction
in the suit property. He further denied having any knowledge about the
value of the suit property. He further admitted that he had never
demanded any rent and damages from the defendants or that he had
never sold out any portion of the suit property. He further denied that
the entire property measuring 125 sq. yds. was divided in three
portions of 42 sq. yds. and other two portions having cumulative area
of approx. 83 sq. yds. He also denied that the portion of 83 sq. yds.
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 10 of 41
was sold to Sh. Prem Chand Garg @ Kalu. He further deposed that the
suit property was purchased by him in the year 1982 and the
documents were executed in the same year. On 10.07.2018, he denied
that the stamp paper for purchase of the suit property was purchased in
the name of Meer Singh in the year 1982. On 11.01.2019, He deposed
that his son had installed the electricity and water connection in the
property and he had given his son paper deeds of 80 sq. yds. while
taking up the connection. He further deposed that he did not remember
where the original papers of 80 sq. yds. of property were lying. He
further denied that Smt. Sumarti Devi and her children were living in
the suit property from the year 1982. He further denied that he had
sold the property measuring 84 sq. yds to Sh. Prem Chand Garg. On
25.09.2019, he denied having got into any argument / fight with the
defendant relating to her eviction from the suit property prior to
23.02.2015. He further deposed that the defendant lived in her native
village. He further deposed that when he asked the children of the
defendant to evict the suit property, they filed a case against him and
also started raising construction on the suit property. He further
deposed that he did not remember the date of demise of his younger
brother Sh. Karamvir Singh though he admitted that Karamvir Singh
had filed a case against him seeking a share in the suit property. He
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 11 of 41
further denied having any document related to the suit property in his
possession. He further deposed that he had filed the same in the court.
He further admitted that the children of the defendant were occupying
40 sq. yds. of the suit property and there were separate electricity
connections in the suit premises which were in his name and there
were no water connections in the suit property.
10. On 16.07.2019, PW Sh. Netra Pal Singh was examined as PW-
2. He tendered his evidence by way of affidavit Ex.PW-2/1. In his
cross examination, he deposed that Sh. Rati Ram, brother of Sh.
Chandan Singh expired in the year 2001. He further deposed that the
documents of sale and purchase of the suit property were prepared at
Kashmere Gate. He further deposed that he had accompanied the
plaintiff for attestation and notorization of the documents pertaining to
the suit property.
11. On 16.07.2019, PW Sh. Dharmendra Pal Singh was examined
as PW-3. He tendered his evidence by way of affidavit Ex.PW-3/A
and relied upon the following documents :
(i) The documents of the suit property already Ex.PW-1/1 to
Ex.PW-1/4.
(ii) Legal notice and reply already Ex.PW-1/6 and Ex.PW-1/7.
(iii) Receipt of speed post, Regd. AD and courier already Ex.PW-
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 12 of 41
1/8 to Ex.PW-1/10.
(iv) Certified copies of ordersheets dtd. 14.10.2014, 17.11.2014 and
02.01.2015 already Ex.PW-1/11 to Ex.PW-1/13.
In his cross examination, he admitted that the suit property was
not purchased in his presence. He further deposed that Sh. Rati Ram
expired somewhere between 2000-21. He further deposed that even
before the defendant had come in possession of the suit property, three
rooms had been constructed on the suit property. He further deposed
that the permission to the defendant to reside in the suit property was
not given in his presence.
12. Thereafter, vide his separate statement, PE was closed and the
matter was fixed for defendants' evidence.
13. On 21.08.2019, list of witnesses alongwith affidavits of
evidence of defendant were filed.
14. On 21.08.2019, DW Smt. Sumarti Devi was examined as DW-1.
She tendered her evidence affidavit as Ex.DW-1/A and relied upon the
following documents:
(i) Copy of Aadhar Card is Ex.DW-1/1 (OSR)
(ii) Photocopy of two GPAs, Agreement to Sell, Affidavit are
marked as Mark A (colly)
In his cross examination, she deposed that her husband expired
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 13 of 41
in Ghaziabad and she used to stay in Ghaziabad with her elder son
Sohan Lal. She further deposed that the suit property was purchased
by her husband and she contributed towards the sale consideration of
the suit property. She further deposed that by way of family
settlement, it was decided that the plaintiff as well as her family and
her brother in law Karamvir who has since expired, shall live in the
suit property together in their respective portion. She further deposed
that the said settlement was oral. She further deposed that the suit
property was purchased jointly by her husband, her later brother in
law Karamvir and plaintiff. She further deposed that the documents of
the suit property were handed over to the plaintiff and that she
alongwith her family had been living in the suit property since the
very beginning. She further deposed that she alongwith her brother in
law Karamvir had filed a suit against the plaintiff in the year 2010-
2011 which was dismissed in January 2015. She further deposed that
the plaintiff started asking her and her family to vacate the suit
property after the plaintiff sold the share of her brother in law
Karamvir. On 17.03.2021, in her cross examination, she deposed that
she did not remember as to where the documents relating to the
property were drafted. She further admitted that she got the upper
floor constructed in the house while the suit was pending. She also
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 14 of 41
deposed that the construction was done in 2018-19. She further
deposed that when she came to stay in the suit premises, she had only
one room, kitchen, washroom and store.
15. On 30.09.2019, an application u/o VII R 14 CPC was filed on
behalf of the plaintiff. On 22.11.2019, reply to the said application was
filed by the defendant and arguments were heard. On 30.11.2019, the
said application was partly allowed. On 17.02.2020, an application u/o
VII R 14 CPC was filed on behalf of the defendant. On 19.10.2020,
the defendant withdrew the said application and filed fresh application
u/o VIII R 1A CPC. On 11.01.2021, reply to the said application was
filed by the plaintiff. On 12.01.2021, the said application was allowed.
16. On 28.10.2021, DW Sh. Rajesh Kumar was examined as DW-
2. He tendered his evidence affidavit as Ex.DW-2/A and relied upon
the following documents :
(i) Copy of Driving License of Rajesh Kumar Ex.DW-2/1 (OSR)
(ii) Copy of ESI card of Rajesh Kumar is Ex.DW-2/2 (OSR)
(iii) Copy of complaint dated 28.12.2010 is Ex.DW-2/3.
17. On 16.04.2022, he was cross examined. In his cross
examination, he deposed that he was born on 07.05.1984. He further
deposed that he is not aware about any oral settlement between his
father and brothers as he was too young. He further deposed that his
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 15 of 41
father expired in 2001. He further denied having ever stayed at
Nangal Rai. He further deposed that he had studied upto 10th class and
had completed his education staying at the suit property. He further
deposed that he had cleared his 10th class from Aligarh district, UP in
2013-14 in regular school and completed his 8 th class schooling in
Khurja Distt., UP in regular school. He further denied having
knowledge of dimensions of the suit property. He further deposed that
there is no connection from Delhi Jal Board in his house.
18. On 28.10.2021, DW Sh. Raj Kumar Singh was examined as
DW-3. He tendered his evidence affidavit as Ex.DW-3/A and relied
upon the following documents :
(i) Copy of Ration Card is Ex.DW-3/1 (OSR)
(ii) Copy of ID Card is Ex.DW-3/2 (OSR)
(iii) Copy of election I Card is Ex.DW-3/3 (OSR)
(iv) Copy of Gas connection is Ex.DW-3/5 (OSR)
(v) Copy of LIC policy is Ex.DW-3/6 (OSR).
Thereafter, his examination in chief was deferred.
On 22.12.2021, he was recalled for examination. He further
relied upon the following documents :
(vi) Copy of conductor license of defendant no.3 for the period 2009
to 2012 Mark B/D3.
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 16 of 41
(vii) Copy of school ID card of son of defendant no.3 for the year
2015-16 is Mark A/D3.
Thereafter, his examination was again deferred. On 16.04.2022,
he was again recalled for examination. He further relied upon the
following documents :
(viii) Copy of GPA is Mark C/D3.
(ix) Copy of indemnity bond is Mark D/D3.
(x) Copy of application form of Delhi Vidyut Board and affidavit
and deposit slip is Mark E/D3 (colly)
(xi) Copy of FIR dated 06.04.2018 is Mark F/D3.
In his cross examination, he has deposed that the oral agreement
was done in the year 1995-96 with respect of the whole property of
125 sq. yds. and the property where he is currently staying is of 42.5
sq. yds. He further deposed that he does not have any Delhi Jal Board
connection as he is not in possession of the papers of the suit property.
He further deposed that the electricity connection installed in the suit
property was installed in the year 2008 in the name of his mother Smt.
Sumarti Devi. He further deposed that the suit property is in joint
name of Sh. Rati Ram, Chandan Singh and Sh. Karamvir Singh. He
further deposed that Karamvir Singh expired around 2011 and Sh. Rati
Ram expired on 21.05.2001. He further deposed that the intention of
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 17 of 41
Sh. Chandan Singh became dishonest and he wanted to dispossess
them on any ground. He further deposed that he is staying in the suit
property since 1995. He also deposed that Sh. Karamvir Singh used to
live at Nangal Rai, Lajwanti Garden, Delhi Cantt. and before 1995, he
used to stay opposite his uncle Sh. Karanvir Singh on rented premises.
He further deposed that Sh. Karanvir never stayed at the suit property
though the property was also in his name.
19. On 28.10.2021, Sh. Naresh Kumar was examined as DW-4. He
tendered his evidence affidavit Ex.DW-32/A and relied upon the
following documents :
(i) Copy of marksheet is Ex.DW-3/1 (OSR)
(ii) Copy of election card is Ex.DW-3/2 (OSR).
His cross examination was deferred. On 14.02.2022, ld.
counsels for the parties informed that DW Sh. Naresh Kumar
(defendant no.3) has expired in the last week of February 2022. On
15.03.2022, an application u/o XXII R 3 CPC was filed by the
plaintiff for impleadment of LRs of defendant Sh. Naresh Kumar and
Smt. Bhawna W/o Late Sh. Naresh Kumar was impleaded as LR. On
16.04.2022, amended memo of parties was filed.
20. On 31.05.2022, DW Smt. Bhawna was examined as DW-4. She
tendered her evidence affidavit as Ex.DW-4/A and relied upon the
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 18 of 41
following documents :
(i) Copy of PAN Card Ex.DW-4/1 (OSR)
(ii) Copy of election I-Card Ex.DW-4/2 (OSR).
In her cross examination, she deposed that she was married to
Sh. Naresh on 07.02.2018 and she knew his family about seven
months before the marriage. She further deposed that she did not have
any personal knowledge of the facts mentioned in her affidavit.
21. On 03.08.2022, DW Sh. Narender Kumar, Asstt. Section
Officer, Zonal Revenue Office, Dwarka, Delhi was examined as DW-
5. He proved the record of water connection bearing SW135427 New
K.No. 9038801000 from the date of installation i.e. 15.06.2010
alongwith documents i.e. copies of GPA, Copy of Agreement to Sell,
Copy of Passport and Copy of electricity bill Ex.DW-5/1 (colly). His
cross examination was not allowed in view of Section 139 Evidence
Act.
22. On 03.08.2022, Sh. Rajiv Ranjan, Asstt. Manager, BSES was
examined as DW-6. Hr proved the record of CA No.103341288 in the
name of Sh. Chandan Singh alongwith copy of GPA dated 21.09.2000,
indemnity bond dated 21.09.2000 in the name of Chandan Singh
(OSR), one receipt dated 26.09.2000 and one receipt bearing no.20787
dated 26.09.2022 (OSR), application form dated 21.09.2000 (OSR),
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 19 of 41
affidavit dated 21.09.2000 (OSR) as Ex.DW-6/1 (colly). His cross
examination was not allowed in view of Section 139 Evidence Act.
23. On 03.08.2022, DW Sh. Amit Kumar Jha, TGT, SBV Uttam
Nagar, New Delhi was examined as DW-7. He proved the copy of
letter dated 02.08.2022, application for admission of Sh. Naresh
Kumar dated 18.04.2000, school leaving certificate dated 31.03.2000,
application for re-admission dated 03.09.2003, application for
admission withdrawal, copy of CBSE results as Ex.DW-7/1 (colly).
His cross examination was not allowed in view of Section 139
Evidence Act.
24. On 03.08.2022, DW Sh. Kunal Ninaneya, FSI, Food and Supply
Department was examined as DW-8. He brought weeding out circular
dated 19.06.2013 as the summoned record was already weeded out
under the rules of the department. Same was Ex.DW-8/1. His cross
examination was not allowed in view of Section 139 Evidence Act.
25. On 03.08.2022, Sh. Yogeshwar Gaur, Junior Asstt., Employment
Exchange, PUSA Road, Karol Bagh, Delhi was examined as DW-9.
He proved letter dated 29.07.2022 i.e. authority by the department to
produce the document alongwith copy of registration details of Sh. Raj
Kumar dated 11.08.2009 registration no.2009139631 Ex.DW-9/1. His
cross examination was not allowed in view of Section 139 Evidence
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 20 of 41
Act.
26. Thereafter, vide separate statement of ld. counsel for defendant,
DE was closed and the matter was fixed for final arguments. On
25.08.2022, final arguments were heard and the matter was reserved
for judgment. On 14.10.2022, vide separate judgment of even date, the
suit of the plaintiff was dismissed.
27. Aggrieved by the said judgment, the defendant / appellant filed
the present appeal on 09.05.2023 on the following grounds :
(a) The ld. trial court failed to appreciate that the respondents in
their Written Statement have taken the contradictory stand, where on
one foot, they are claiming their ownership by way of purchase of the
property through late Sh. Rati Ram and on the other foot, they are
claiming themselves to be the owner by way of adverse possession of
the suit property from the last more than 33 years.
(b) The ld. trial court failed to appreciate that even though the
respondents have failed to prove their ownership in the suit property
by way of either adverse possession or ownership through documents,
the ld. trial court failed to assess as to in what capacity they are
residing / in possession of the suit property.
(c) The ld. trial court failed to appreciate that the respondent never
challenged or disputed the original title deeds of 1982 of the whole
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 21 of 41
property admeasuring 125 sq. yds. in the name of the appellant.
(d) The ld. trial court failed to appreciate that the respondents relied
on a family settlement, however none of the respondents could prove
the said settlement.
(e) The ld trial court failed to appreciate that the statements of DW-
4 to DW-9 are inadmissible being either hearsay evidence or not
permitted in purview of Section 139 of Indian Evidence Act.
(f) The ld. trial court failed to appreciate that in fact, respondents
completely admitted the case of the appellant herein as correct.
(g) The ld. trial court failed to appreciate the fact that the
respondents cold not file a single document to show that they are the
owners of the suit property.
(h) The ld. trial court failed to appreciate the fact that DW-3 Sh. Raj
Kumar stated in his cross examination - "I used to stay at the above
said address opposite my uncle Sh. Karamvir Singh on rented
premises". However, DW-3 in his evidence by way of affidavit has
stated that "It is submitted that in 1982, Late Sh. Rati Ram, Sh.
Karamvir Singh and Sh. Chandan Singh had entered into an oral
settlement and as per the said oral settlement, they all are residing in
the above mentioned property, in their respective portions". The ld.
trial court failed to appreciate that the respondents are taking
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 22 of 41
contradictory stands in their evidence and during their cross
examination, which clearly shows the malafide of the respondents.
(i) The ld. trial court failed to appreciate the fact that Sh. Raj
Kumar DW-3 in his evidence by way of affidavit has stated that the
oral settlement took place in 1982, however on the other hand, during
the cross examination, he had stated that the oral settlement took place
in 1995-96.
(j) The ld. trial court failed to appreciate the fact that the
respondents themselves have admitted the fact that the appellant
within reasonable time had taken steps to evict the respondents from
the suit property.
(k) The ld. trial court failed to appreciate that Section 90 of Indian
Evidence Act lays down that when a document purporting or proved to
be 30 years old is produced in a Court from a custody of the very
person whose signatures are on it, it shall be presumed that it was duly
executed and attested by the person by whom it purports to be
executed and attested. Under this section, a presumption may be
drawn in favour of document of thirty years old or what is known as
Ancient Documents.
(l) The ld. trial court failed to appreciate the fact that the appellant
had purchased the suit property directly from Zamindar and hence,
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 23 of 41
there is no chain of documents of the suit property.
(m) The ld. trial court failed to appreciate the fact that the appellant
had given the permission to respondents to reside in the suit property
on an oral request being family member, which in law be considered
as license on a month-to-month basis at will and terminable at the
instance of the owner.
(n) The ld. trial court failed to appreciate that the appellant had
disclosed all the relevant information with supporting documents in
order to prove his case.
(o) The ld. trial court failed to appreciate that in the wake of above
rival contentions of the respondent herein and the appellant herein, it
had become very important for the ld. Trial court to return a finding as
to which of the above two versions i.e. eiher of the respondent herein
or the appellant herein is correct. However, the ld. trial court
completely ignored the version of the appellant herein and there is not
a single whisper of the same in the impugned judgment.
(p) The ld. trial court failed to appreciate that the appellant herein
fully proved his case as the appellant throughout remained consistent
in his suit.
(q) The ld. trial court failed to appreciate that on an analysis of the
facts, the scale of balance tilts in favour of the appellant as the
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 24 of 41
appellant has the title documents of the suit property dated 1982 and
which the ancient documents as per the law prevailing under Section
90 of Evidence Act and that the respondents herein intentionally failed
to produce any such document.
(r) The ld. trial court failed to appreciate that the following two
quite different stories had surfaced before the ld. trial court - one by
the respondent herein that he is the owner of the suit property,
however no titled documents were filed or any proof was shown with
respect to the same, although they took contradictory statement
regarding the oral settlement as well as ownership either by adverse
possession of oral settlement; other more consistent one by the
appellant wherein he stated himself to be the absolute owner of the
suit property and with respect to that he had filed the documentary
proofs of the title deeds and other documents, and also proved that the
respondents were permitted by him to reside at the suit property.
However, the ld. trial court completely ignored the version of the
appellant herein.
(s) The ld. trial court has also failed to honour and consider the
salutary principles of justice and good conscious. Thus, the impugned
judgment and order as passed by the ld. Trial Court has led to gross
miscarriage of justice and is not an order which is ought to be in
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 25 of 41
accordance with law.
(t) The impugned judgment and order passed by ld. trial court is
bad in the eyes of law as well as the facts of the case and is liable to be
set aside.
Findings of the Ld. Trial Court
28. The findings of the Ld. Trial Court which are under dispute are
qua the findings with respect to issue no. (iv). The Trial Court found
that the Plaintiff had been unable to establish the better title over the
suit property and that the unregistered GPA could not be relied upon.
The Trial Court also found that the Plaintiff has not been able to prove
the licensor-licensee relationship and that the suit for merely
mandatory injunction simpliciter was not filed within the reasonable
time and therefore, the suit was not maintainable.
29. I have considered the submissions of both parties and perused
the record. In the oral arguments before the Court, the counsels
reiterated the submissions which have been noted in detail above.
Contentions of the parties
30. Ld. Counsel for Appellant has submitted that the trial Court has
not considered the fact that when the Defendant failed to establish any
right, title or interest, then the documents of the Plaintiff should have
been considered. It is submitted that the Respondents i.e. the
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 26 of 41
Defendants before the trial Court took up a false stand and
contradictory defences which were found to be false. It is pointed out
that the Defendants did not challenge the findings of the Trial Court
that they had failed to establish either adverse possession or
possession by way of purchase of the property by the husband of
Defendant no. 1 i.e. late Sh. Rati Ram Singh. It is submitted that title
of the property cannot be kept in a vaccum. It is further submitted that
the judgment of Suraj Lamp was incorrectly applied and that the same
would not affect transactions which were genuine and that the said
judgment would operate only prospectively. It is submitted that the
Defendants also could not prove any family settlement. It is also
submitted that the trial Court failed to consider Section 90 of the
Indian Evidence Act in respect of the title documents of the Plaintiff
and that a presumption had to be drawn as the document was more
than 30 years old.
31. Per contra, it was submitted by Ld. Counsel for Respondent
that the Trial Court had correctly appreciated the evidence before it
and that the Plaintiff could not prove his own case and therefore, could
not rely upon any deficiencies in the case of the Defendant. He
submitted that the Defendants were in possession and were entitled to
protect their possession against all but the true owner. It was submitted
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 27 of 41
that the Appellant had not approached the Courts below with clean
hands as it was proved that the Appellant had prepared forged and
fabricated documents before the statutory authorities for obtaining
water and electricity connection.
Findings
32. The point of determination that arises in the present appeal is
whether the trial Court has correctly decided the issue no. (iv) that was
framed by it. The said issue no. (iv) was framed as "whether the
Plaintiff is entitled to the relief of mandatory injunction as per prayer
(a) of the plaint? (OPP)". The findings qua issues no. (i), (ii) and (iii)
have not been challenged by any of the parties and therefore, the said
findings have become final.
33. I find that the trial Court has correctly decided the said issue for
the reasons given below:
(a) As per the trial Court record, the Plaintiff had relied upon a GPA
and agreement to sell etc. dated 09.08.1982 which were exhibited as
Ex. PW1/1 to Ex. PW1/4. During the Defendant evidence, witnesses
were summoned being examined as DW-5 and DW-6 by the
Defendants. DW-5 was the concerned officer from Delhi Jal Board
who produced the record Ex. DW5/1. From the record, it appears that
the Plaintiff had applied for a water connection at the suit property
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 28 of 41
whereupon along with the application as proof of ownership and
residence. He had filed a General Power of Attorney and Agreement to
Sell. Similar is the situation with DW-6 who is the officer from BSES
and produced the record Ex. DW6/1 wherein also, it appears that the
Plaintiff applied for an electricity connection on the basis of a certain
GPA. On comparison of the documents Ex. PW1/1 on the strength of
which the Plaintiff has based his entire case which are namely the
GPA, Agreement to Sell executed in his favour by one Mir Singh in
the year 1982 with the documents which were produced by the
Plaintiff while applying for water and electricity connection and which
have been proved as Ex. DW5/1 and Ex. DW6/1, it can be seen that
whereas on the set of documents Ex. PW1/1 to Ex. PW1/4, all dated
09.08.1982, Mir Singh has purportedly only made thumb impressions
and has nowhere signed on the said documents, on the documents
being GPA and Agreement to Sell for being part of Ex. DW5/1 and
Ex. DW6/1, the same contain the signatures of Mir Singh on the GPA
which has been purportedly executed for the same suit property but for
only a portion of 80 sq. yards by the said Mir Singh in favour of the
Plaintiff herein. It is also pertinent to note that the agreement to sell
relied upon by the Plaintiff for obtaining water connection and which
agreement to sell forms part of the Ex. DW5/1, is dated 21.09.2000. It
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 29 of 41
appears that the only conclusion that can be drawn between these two
sets of contradictory documents is that the Plaintiff has concocted at
least one of these sets. Therefore, it is apparent that the Plaintiff has
not the approached the Court with clean hands. During course of
arguments, Ld. Counsel for the Appellant tried to gloss over this fact
by stating that the same was between the concerned authority and the
Plaintiff and not relevant to be considered as a factor in the present
dispute. However, the Courts of law cannot overlook such conduct.
During the course of cross-examination, PW-1 i.e. the Plaintiff was
given an opportunity to explain the said circumstance. He deposed that
"My son had installed electricity and water connection in the property
where I am living. I have given to my son paper deeds of 80 sq. yards
while taking up this connection. I do not remember when this paper
deed of 80 sq. yards were made. It is wrong to suggest that this paper
made in the year 2000 and it is forged. I do not remember where is the
original papers of 80 sq. yards of property. (Vol.) There is nothing like
original paper of 80 sq. yards of property)." The Plaintiff has clearly
evaded from answering the questions while on the other hand, has
admitted that some papers of 80 sq. yards were prepared. No
explanation is forthcoming with regard to the existence of the said
documents from the Plaintiff. The conduct of the Plaintiff is extremely
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 30 of 41
important in a civil suit. Very little reliance can be placed on the case
of a Plaintiff who is found to have muddied his hands and to have
prepared fabricated documents in order to avail a certain service.
(b) The Ld. Trial Court has correctly found that the suit for mere
mandatory injunction would not be maintainable in the facts of the
present case. It is the admitted position that the Defendant Sumarti
Devi along with another party had filed a suit against the Plaintiff in
the year 2011 which was dismissed in the year 2015. During such
time, when the Plaintiff was well aware about the dispute, it cannot be
said that the present suit for mandatory injunction having been filed on
27.08.2015. The Ld. Trial Court has come to a finding of fact that the
present Defendant had set themselves up as co-owners in the property
and therefore, the present suit filed after many years of the filing of
the suit by the Defendants against the Plaintiff for a mere mandatory
injunction would not be within reasonable time as laid down by the
Hon'ble Supreme Court of India in Joseph Severance and Ors Vs.
Benny Mathew and Ors (2005) 7 SCC 667. Ld. Trial Court has also
come to a finding that the factum of the earlier suit was concealed by
the Plaintiff and therefore, the discretionary relief of mandatory
injunction cannot be granted to him. I agree with the said finding. The
present Plaintiff has chosen to stay silent about a number of things
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 31 of 41
including the earlier suit as well as the documents used by the Plaintiff
to obtain water and electricity connection. Therefore, the Ld. Court
correctly found that the Plaintiff is not deserving of the discretionary
relief claimed by him.
(c) The Plaintiff has also claimed that the license was granted to the
Defendants in the year 2005. Ld. Trial Court has found that there is a
contradiction in the claim of the Plaintiff and the evidence adduced by
the Defendants as well as the cross-examination of PW-1. PW-1
admitted that the Defendants started residing in the property since the
year 2002. The same is apparent from the cross-examination of PW-1
dated 11.01.2019 as well as the cross-examination dated 22.11.2017.
Not only has PW-1 admitted that Defendants were residing in the
property since the year 2002, he has also deposed that the Defendants
started residing in the property after the death of Rati Ram in the year
2002. Moreover, there are multiple documents produced by the
Defendants to show that they had been residing at the suit property
prior to the year 2005 and there is no infirmity of the Ld. Trial Court
while coming to this finding of fact.
(d) In Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594 :
2008 SCC OnLine SC 550, the Hon'ble Supreme Court, while
considering as to when questions of title can be raised in suits for
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 32 of 41
permanent injunction simpliciter, noted that :-
"Re: Question (i)
13. The general principles as to when a mere suit
for permanent injunction will lie, and when it is
necessary to file a suit for declaration and/or
possession with injunction as a consequential
relief, are well settled. We may refer to them
briefly.
13.1. Where a plaintiff is in lawful or peaceful
possession of a property and such possession is
interfered or threatened by the defendant, a suit
for an injunction simpliciter will lie. A person has
a right to protect his possession against any
person who does not prove a better title by
seeking a prohibitory injunction. But a person in
wrongful possession is not entitled to an
injunction against the rightful owner.
13.2. Where the title of the plaintiff is not
disputed, but he is not in possession, his remedy is
to file a suit for possession and seek in addition, if
necessary, an injunction. A person out of
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 33 of 41
possession, cannot seek the relief of injunction
simpliciter, without claiming the relief of
possession.
13.3. Where the plaintiff is in possession, but his
title to the property is in dispute, or under a
cloud, or where the defendant asserts title thereto
and there is also a threat of dispossession from
the defendant, the plaintiff will have to sue for
declaration of title and the consequential relief of
injunction. Where the title of the plaintiff is under
a cloud or in dispute and he is not in possession
or not able to establish possession, necessarily
the plaintiff will have to file a suit for declaration,
possession and injunction.
14. We may, however, clarify that a prayer for
declaration will be necessary only if the denial of
title by the defendant or challenge to the
plaintiff's title raises a cloud on the title of the
plaintiff to the property. A cloud is said to raise
over a person's title, when some apparent defect
in his title to a property, or when some prima
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 34 of 41
facie right of a third party over it, is made out or
shown. An action for declaration, is the remedy to
remove the cloud on the title to the property. On
the other hand, where the plaintiff has clear title
supported by documents, if a trespasser without
any claim to title or an interloper without any
apparent title, merely denies the plaintiff's title, it
does not amount to raising a cloud over the title
of the plaintiff and it will not be necessary for the
plaintiff to sue for declaration and a suit for
injunction may be sufficient. Where the plaintiff,
believing that the defendant is only a trespasser
or a wrongful claimant without title, files a mere
suit for injunction, and in such a suit, the
defendant discloses in his defence the details of
the right or title claimed by him, which raise a
serious dispute or cloud over the plaintiff's title,
then there is a need for the plaintiff, to amend the
plaint and convert the suit into one for
declaration. Alternatively, he may withdraw the
suit for bare injunction, with permission of the
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 35 of 41
court to file a comprehensive suit for declaration
and injunction. He may file the suit for
declaration with consequential relief, even after
the suit for injunction is dismissed, where the suit
raised only the issue of possession and not any
issue of title.
15. In a suit for permanent injunction to restrain
the defendant from interfering with the plaintiff's
possession, the plaintiff will have to establish that
as on the date of the suit he was in lawful
possession of the suit property and the defendant
tried to interfere or disturb such lawful
possession. Where the property is a building or
building with appurtenant land, there may not be
much difficulty in establishing possession. The
plaintiff may prove physical or lawful possession,
either of himself or by him through his family
members or agents or lessees/licensees. Even in
respect of a land without structures, as for
example an agricultural land, possession may be
established with reference to the actual use and
Chandan Singh vs Sumarti Devi
RCA Civil DJ ADJ 50/23 Page 36 of 41
cultivation. The question of title is not in issue in
such a suit, though it may arise incidentally or
collaterally.
..............................................
21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided Chandan Singh vs Sumarti Devi RCA Civil DJ ADJ 50/23 Page 37 of 41 with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v.
Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the Chandan Singh vs Sumarti Devi RCA Civil DJ ADJ 50/23 Page 38 of 41 remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the Chandan Singh vs Sumarti Devi RCA Civil DJ ADJ 50/23 Page 39 of 41 case." (emphasis supplied) In the present case, (i) when the story of the license being granted in the year 2005 has been found to be false, (ii) when it is found that the Plaintiff has relied upon a fabricated document to obtain various water and electricity connections, (iii) when admittedly, the Defendants are in possession of the suit property since the year 2001 and 2002, (iv) when the Plaintiff himself relies only on certain unregistered documents like GPA, agreement to sell to advance the contention that he has the absolute title to the property, (v) when it is found that the Plaintiff himself has prepared documents for a portion of the suit property of 80 sq. yards and not 125 sq. yards of whom he proclaims to be the owner of, then in such circumstances, a mere suit for mandatory injunction was not maintainable. The proper remedy for the Plaintiff was for filing a suit for declaration, possession and permanent injunction.
(e) The main thrust of the arguments on behalf of the Appellant was that the Defendants were not able to prove their case. The Plaintiff cannot take any advantage of the said fact as it is settled law that the case of the Plaintiff has to stand on its own legs and it is the Plaintiff who has to first discharge the onus of proof placed upon him to prove his case.
Chandan Singh vs Sumarti Devi RCA Civil DJ ADJ 50/23 Page 40 of 41
(f) The Appellant also submitted that the Ld. Trial Court failed to draw the presumption under Section 90 of the Indian Evidence Act qua the documents dated 09.08.1982. It was submitted that the same were more than 30 years old and therefore, presumption should have been drawn. I find that the contention is misplaced in as much as the drawing of presumption under Section 90 of the Indian Evidence Act is not mandatory as the words used are 'may presume.' The said phrase has been defined in Section 4 of the Indian Evidence Act which states that whenever it is provided by the said Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. Therefore, the Ld. Trial Court was correct in not drawing any such presumption, especially in the light of the GPA and agreement to sell disclosed in Ex. DW5/1 and Ex. DW6/1.
In addition to the above, I fully concur with the reasons given by the Ld. Trial Court in the impugned judgment. Considering the above, present appeal is therefore, dismissed. Relief
34. For the aforesaid reasons, the present appeal is dismissed. Parties shall bear their own cost. Decree Sheet be drawn up accordingly.
Chandan Singh vs Sumarti Devi RCA Civil DJ ADJ 50/23 Page 41 of 41
35. Copy of this order along with TCR be sent back to the concerned court. Appeal file be consigned to Record Room. Digitally signed by DIVYANG THAKUR
DIVYANG Date:
THAKUR 2024.02.21
16:45:26
+0530
Announced in the open court (DIVYANG THAKUR)
on this 21.02.2024 ADJ-03/ SOUTH-WEST
DWARKA/ NEW DELHI
Chandan Singh vs Sumarti Devi