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Delhi District Court

Sheo Raj Singh vs (1) Radhey (Deceased) Through His Lrs on 15 January, 2019

                 IN THE COURT OF DR. HARDEEP KAUR ADJ­
                     02(SHAHDARA)KKD COURTS/DELHI
                          (Old RCA No. 91/12)
                           RCA no. 103/2016

In the matter of:
Sheo Raj Singh
S/o Shri Nathu
R/o Village Kondli
Delhi.                                          ...... Appellant

                              Versus
(1) Radhey (Deceased) Through his LRs.
     i) Birwati­Widow
     ii)Rafal s/o Late Shri Radhey
     iii)Virender s/o Late Shri Radhey
     iv)Jitender s/o late Shri Radhey
     v) Dharmender s/o Late Shri Radhey
     vi) Smt. Sunita d/o Late Shri Radhey
     vii)Smt. Manju d/o Late Shri Radhey
     viii)Kavita d/o Late Sh. Radhey
     All r/o Village Kondli Delhi
(2) Shri Sham
(3) Shri Ghansham
(4) Shri Ram Pal
 s/o Lielu
(5) Shri Gian Inder
 s/o Indev
(6) Shri Teka
 s/o Sh Chinta
(7) Smt Sona Devi
 w/o Sh. Sheo Raj Singh
 R/o Village Kondli, Delhi
8. (a) Smt. Rajwati Widow of Shri Ram Bhaj
   (b) M/s Gulshan d/o Shri Ram Bhaj
   (c) Sh. Dharminder s/o Shri Ram Bhaj
RCA 103/2016
Sheo Raj Singh vs Radhey (through LRs) & Ors.
page 1
    (d) Ms. Dharmindari d/o Shri Ram Bhaj
   (e) Shri Sunil Kumar s/o Shri Ram Bhaj
9. Shri Mahipal (deceased) Through
     (a) Smt. Shyam Wati­Widow
     (b) Shri Bijender s/o late Sh. Mahipal
     (c) Shri Raju s/o Late Sh. Mahipal
     (d) Vicky s/o Late Shri Mahipal
     (e) Ms. Lata d/o late Shri Mahipal
     All r/o Village Kondli Delhi           ......Respondents


Date of Institution :­ 02.07.2012
Date of Judgment :­ 15.01.2019
Decision:­ Dismissed.


JUDGMENT

1. This appeal has been filed against the impugned judgment and decree dated 19.05.2012 passed by Ld. JSCC/ASCJ/G, District North East, Karkardooma Courts, Delhi in Civil Suit No. 54/2007 titled as " Shri Sheo Raj Singh & Ors vs. Radhey and Ors" whereby Ld. Trial Court dismissed the suit of the plaintiffs. For the sake of convenience nomenclature of the parties are same as in the suit.

2. Brief facts necessary for disposal of the present appeal as per plaint are that the plaintiffs and defendant no. 7 are the owners of the plot of land comprised in Khasra no. 206, measuring 1 bigha 14 biswas and the RCA 103/2016 Sheo Raj Singh vs Radhey (through LRs) & Ors. page 2 structure raised thereon situated within the revenue estate of village Kondli, Distt. Delhi. The ancestors of the plaintiffs and D­7 were in possession of the said plot of land. Originally the area of the said khasra number was 1 bigha 16 biswas but out of the said land, 2 biswas of the land was acquired by the government and the government had taken possession of the same.

Defendant no. 1 to 5 are owners of the land comprised in khasra no. 207, situated in village Kondli and the said land is adjoining the land of the plaintiffs. Plaintiffs have constructed various rooms in their plot and the defendants have also raised certain structure in their land. The plaintiffs have alleged that the defendants have the malafide intention to open door/passage towards and on the land of the plaintiffs. There exists a temple of Shivji and some other small temples of Mataji and Hanuman Ji etc. in an area of 7 biswas of the said land belonging to the plaintiffs for the last 15­17 years for the purpose of worship etc. it has been further stated that one KOTHA shown mark A in the plan exists for the last about 13­14 years and defendant no. 6 has been residing therein. The articles of the plaintiffs are lying therein.

Defendant no. 6 has transferred all his rights, interests and claims in his share of the land and the structure as well to the defendant no. 7 who is now in RCA 103/2016 Sheo Raj Singh vs Radhey (through LRs) & Ors. page 3 possession of the said land / structure. Defendant no. 6 and 7 have been arrayed as parties as the said land has not been divided so far between the owners thereof. Defendant no. 1 to 5 and their ancestors have been picking up the quarrels with the plaintiffs over the said plot of land. However, the matter was got settled through police, other residents and concerned authorities.

It has been further stated that father of the plaintiffs even obtained Nishan Dehi of their land from concerned authorities in 1970­71. It has been further stated that the building activities have come up rapidly in an around khasra no. 206 and khasra no. 207 and the prices of the land have considerably increased.

Defendant no. 1 is the Pradhan of the Gaon Sabha of the village Kondli and he has been selling and grabbing land of the other persons taking advantage of his position. Defendant no. 1 to 5 tried and attempted in Feb. 1988, to encroach upon the land of khasra no. 206, however, the matter was averted.

On 15.05.1988, the said defendant no. 1 to 5 with their illegal and nefarious designs trying to encroach upon the land of the plaintiffs but due to the intervention of the nearby residents, they left the spot with the threats to forcibly and illegally occupy the land and structure of the plaintiffs. Defendants with their malafide intention, had RCA 103/2016 Sheo Raj Singh vs Radhey (through LRs) & Ors. page 4 illegally and unauthorizedly raised the boundary wall on the Eastern and Northern side of the plot forming part of khasra no. 206 and had also raised a small KHOR.

Defendants also raised a room on the plot of the land adjoining the earlier room of the plaintiffs and have encroached upon the area of 4' x10' as shown in the report of the Local Commissioner. The said construction and encroachment by the defendants is wrong, illegal and unauthorized and as such, the same is liable to the demolished because the said acts have been done by the defendants during the pendency of the present suit.

It has been further alleged that the plaintiffs have come to know of the encroachment on 02.06.1988. It has been further stated that the wall which was constructed by defendant no. 1 to 5 after the filing of the suit, has been marked as B C D E G in the plan annexed with the plaint. It has been further stated that defendant no. 1 to 5 have also encroached upon the land of khasra no. 206 by raising a portion of their room at point A in the plan annexed with the plaint and have also encroach the room of the plaintiff at the line AB. It has been further stated that the defendant no. 1 to 5 are thus liable to remove their aforesaid walls and rooms and also liable to remove the encroachment from the portion ABCDEF as per section 6 of the Specific Relief Act and hence the present suit.

Sheo Raj Singh vs Radhey (through LRs) & Ors. page 5 On the basis of the above­said allegations as contained in the plaint, the plaintiffs have prayed that defendant no. 1 to 5 and their agents etc. be restrained by decree of permanent injunction restraining them permanently from encroaching upon or occupying any part of the land or the structure of the plaintiff in khasra no. 206 measuring one bigha and 14 biswas situated in village Kondli, Delhi.

Plaintiffs have further prayed for decree of mandatory injunction directing the defendants to demolish the boundary wall marked BCDEG in the site plan annexed with the plaint and the portion of the KOTHA by which they have encroached upon the land of the plaintiffs in khasra no. 206 village Kondli marked ABCDEF in the site plan annexed. It has been further prayed that the defendants be directed to restore the said land to the plaintiffs. The plaintiffs have also prayed for the costs of the suit as well.

3. On the basis of pleadings, following issues were framed by the ld. Trial Court:­

1. Whether the plaintiffs have got no locus standi to file the prvesent suit? OPD

2. Whether the suit is barred under the Delhi Land Reforms Act? OPD

3. Whether there exist any cause of action in favour of the plaintiffs against the defendants? OPD

4. Whether the plaintiff is entitled for the relief of RCA 103/2016 Sheo Raj Singh vs Radhey (through LRs) & Ors. page 6 permanent injunction as claimed? OPD

5. Whether the plaintiff is entitled for the relief of mandatory injunction?OPP

6. Relief.

4. After considering the evidence which came on record, ld. Trial Court had dismissed the suit of the plaintiffs. Consequently, being aggrieved of the order of learned Trial Court, plaintiff no. 1/appellant has filed the present appeal on the following grounds:­ A. That Ld. trial court at the time of passing the impugned judgment and decree has miserably failed to exercise the jurisdiction vested in it thereby ignoring its own record and further misdirected itself by not considering the documents filed by the Appellants/ Plaintiffs. B. That Ld. trial court has miserably failed to consider the testimony of PW­1 as a whole. C. That Ld. trial court has swept away by erroneous assumptions and presumptions thereby ignoring the nature of controversy involved and the relief as prayed for by the appellants.

D. That Ld. trial court has not given any reasons for dismissing the suit, hence, violates the principle of natural justice.

E. That Ld. trial court has further ignored the basic principles of law of evidence and completely lost sight on the basic principles as laid down under the Indian RCA 103/2016 Sheo Raj Singh vs Radhey (through LRs) & Ors. page 7 Evidence Act with respect to proving of facts. Hence, impugned judgment and decree suffers from manifest irregularities and illegalities.

F. That Ld. Trial Court at the time of passing the impugned judgment and decree has miserably failed to exercise the jurisdiction vested in it, while on the contrary, passed the same in a cryptic and mechanical way thereby adopting an arbitrary approach by holding that the appellant has failed to prove their case.

5. Submissions heard on behalf of the respondents. Written submissions filed on behalf of both the parties and the same are considered. Record carefully perused.

6. The main contention of appellant/plaintiff no. 1 is that ld. Trial court has failed to appreciate the evidence on record specially testimony of PW­1. Record shows that plaintiffs have examined only one witness i.e. plaintiff no. 1/Sheoraj Singh and he stated in his examination in chief that land in dispute was owned by his father and brother and after their death, plaintiffs are in occupation of land measuring 1 bigha 14 biswa out of khasra no. 206 and their father had raised structure therein. He further stated that the name of the plaintiffs and their father are also appeared in revenue record as owners. Earlier the area in their possession was 1 bigha 16 biswa and out of the same 2 biswa has been acquired by NDMC. After that they have RCA 103/2016 Sheo Raj Singh vs Radhey (through LRs) & Ors. page 8 raised structure in the said property and defendant no. 1 to 5 raised the structure on adjoining land and his father also constructed temple of Shivji and other small temples of mataji, Hanumanji on the area of 7 biswas. The ancestors of defendant no. 1 to 5 never picked up quarrel with them.

Since the time defendant no. 1 elected Pradhan of Gaon Sabha, the defendant no. 1 to 5 have been harassing them and threatening them to forcefully occupying their land. Sh. Gyanender D­5 had also opened the door in our property towards out side. Till the filing of the present suit the plaintiffs were in the possession of the suit property.

It is further stated that day before the visit of Local Commissioner, defendant no. 1 to 5 have broken the lock of the room and also encroached upon the portion and raised a wall and some temporary structure in the portion of the plot. The boundary wall is absolutely new when Local Commissioner visited the site.

PW­1 deposed during cross examination that khasra no. 206 of Village Kondali in respect of land measuring 1 bigha 16 biswa and out of the same 2 biswa has been acquired by NDMC and the present suit has been filed seeking a decree of permanent and mandatory injunction. He further deposed that as on today he is in possession of the land measuring 1 bigha 14 biswa.

Sheo Raj Singh vs Radhey (through LRs) & Ors. page 9 He admitted the suggestion put by counsel for defendants/respondents that EX PW 1/X2 shows the ownership of Gram Sabha of khasra no. 206.

He further deposed that he does not recall the exact date and month or year on which defendant has tried to take forceful possession of the suit property. It is about 2­3 years back. On the other hand during his cross examination dated 12.03.2004, he deposed that defendant no. 1 to 5 have not occupied the suit property till date and he is in peaceful physical possession of the suit property and he has not filed a suit for possession.

Hence, it is rightly observed by ld. trial court that the plaintiffs have come to the court on the basis of their possession and on the basis of their ownership. In the cross examination the PW­1 who is the sole witness examined by the plaintiffs has stated that the defendant took over the possession of the land in question on 02.06.1988. Further in cross examination dated 30.07.2003, PW­1 has admitted the suggestion put by counsel for defendants/respondents that EX PW 1/X2 shows the ownership of Gram Sabha on khasra no. 206. PW­1 has voluntarily stated that the defendant no. 1 to 5 have not occupied the suit property till date and he is in peaceful and physical possession of the suit property (as is reflected from the cross examination of PW­1 done on 12.03.2004) whereas in the examination in RCA 103/2016 Sheo Raj Singh vs Radhey (through LRs) & Ors. page 10 chief recorded on 27.07.1992, the plaintiff no. 1 i.e. PW­1 has categorically stated that till the filing of the suit, the plaintiffs were in possession of the property in question but when the Local Commissioner visited the site, defendant no. 1 to 5 broke open the locks of one room and also encroached upon the portion, raised a wall and some temporary structure in the portion of the plot. From the perusal of the above said testimony of PW­1, it is apparently clear that the testimony of PW­1 is contradictory. Further, record shows that the plaintiffs have filed on record the khasra girdawri of the year 1985­86, the khasra girdawri for the year 1987­88, whereas the defendants have filed on record the khatauni of the year 1988­89 which is EX PW 1/X2 on record. PW­1 during his cross examination has categorically admitted that Gram Sabha has been shown as the owner of the khasra no. 206 in the said Khatauni. The report of the Local Commissioner also shows that the defendants are in possession of the property in question. Shri Shyam Lal, Halqa Patwari from the office of SDM has been examined by the defendants as DW 1 and he has proved on record the khatauni for the year 1988­89 as EX DW 1/1. He further deposed that he can not tell about the ownership with regard to the khasra no. 206 prior to the year 1988. Except PW­1 no other witness has been summoned or examined by the plaintiffs RCA 103/2016 Sheo Raj Singh vs Radhey (through LRs) & Ors. page 11 to show that 2 biswas of the land has been acquired by the government as well as to prove that they are the owners of the land falling in khasra no. 206.

It is further rightly held by the ld. Trial court that plaintiffs have failed to prove that they are owners of the land falling in khasra no. 206.

7. This being the background, this court finds no illegality in the impugned order / judgment of Ld. Trial Court dated 19.05.2012. The appeal is hereby dismissed. Trial Court record be sent back along with copy of this order.

8. Decree sheet be prepared accordingly. File be consigned to Record Room.

(Dr. Hardeep Kaur) (Typed to the dictation directly, ADJ­02(SHD)/KKD/Delhi corrected and pronounced 15.01.2019 in the open court on 15.01.2019) (This judgment contains 12 pages) RCA 103/2016 Sheo Raj Singh vs Radhey (through LRs) & Ors. page 12