Delhi District Court
Trilok Chand Sharma vs Shri Mahender Singh on 13 May, 2022
IN THE COURT OF SH SACHIN JAIN ADDL. DISTRICT
JUDGE - 02, SOUTH WEST DISTRICT, DWARKA COURTS,
NEW DELHI
CS DJ ADJ No.15756/2016
CNR No. DLSW010011112015
IN THE MATTER OF:
1. Trilok Chand Sharma
S/o Shri Hardwari Lal Sharma,
R/o C-165, Hari Nagar Clock Tower,
New Delhi-110064
... Plaintiff
Versus
1. Shri Mahender Singh
2. Sh Ishwar Singh
3. Sh Raghubir Singh
4. Sh Phool Singh
All sons of Sh Rattan Lal
R/o H No. 44, Village Badu Sarai
PS Chhawla
New Delhi ... Defendants
Date of institution of suit: 12.03.2008
Date of judgment reserved: 29.04.2022
Date of pronouncement of judgment: 13.05.2022
Page No. 1/60
JUDGMENT
1. The present suit is filed by the plaintiff for the relief of possession, damages and permanent injunction against the defendants.
2. Briefly, stated it is the case of the plaintiff that he purchased 7 bighas of land bearing khasra No. 19/13/1 min.(4-03) and 19/14(3-0) situated in the revenue state of Village Badusarai, Tehsil Najafgarh, Delhi vide registered sale deed , registered at Srl. 10381 in Addl. Book No1. Vol. No. 4725, page nos. 131 to 133 dated 02.12.1985 from Sh. Ran Singh and Narain Singh and after the purchase of the said land the same was mutated in his name in the revenue records.
3. That the defendant in collusion with some property dealers attempted to grab the land of the plaintiff and therefore, plaintiff filed a suit for permanent injunction and restrained orders were passed against the defendants from interfering in any manner of the property of the plaintiff. Despite restraint orders, the defendants illegally and unlawfully trespassed into the land of the plaintiff ad-measuring about 50 sq. yards and for the same contempt proceedings are pending against the defendants in the court of Sh. N. K. Laka, Civil Judge, Delhi and is now fixed for 16.04.2008.
4. It is further the case of the plaintiff that the consolidated proceedings were started in the village Badusarai in the year 1996 and the entire holdings came under the consolidation officer and in the Page No. 2/60 year 2005 the officer carved out plots in the land of plaintiff bearing khasra No. 19/13/1 (3-5), 14(3-0) vide plots No. 88 to 99 as per pass book consolidation hadbast No. 154. The defendants by use of muscle power use the land of the plaintiff surrounding the earlier land trespassed 50 sq yards of land and accordingly, now the land measuring 1550 sq yards bearing plot No. 97 Village Badusarai has been illegally and unlawfully trespass by the defendants without any right title, or interest by using fraudulent means and muscle power since 2005 i.e. the defendants got their names mentioned in the kayami register without disclosing their right, title and interest and subsequently trespass into surrounding land.
5. It is further the case of the plaintiff that at no point of time he sold or transfer the above said land or any part thereof to the defendants or any of the defendant and the plaintiff came to know about the kayami entries on 25.02.2006 when the encroachers produced them in kalandra case before the court of Ms Veera Rani, S.E.M South West, Delhi. The plaintiff thereafter while Revision Petition dated 09.05.2006 challenged the consolidation proceedings as well as the kayami register before the court of FCR, Delhi which is fixed for 28.03.2008. It is further stated that plaintiff also filed a criminal case No. 1900/1/2006 against the defendants and others which is pending adjudication for Sh Sanjeev Kumar, MM, Patiala House New Delhi which is now fixed for 23.04.2008.
6. It is further the case of the plaintiff that in the Civil Court the Page No. 3/60 defendants claims to have purchased the land measuring 1500 sq yds from Sh. Ram Niwas in Khasra No. 19/18, village Badusarai, New Delhi and the plaintiff has no concern with the land of Sh Ram Niwas. The defendants are in fact trespasser and cannot be allowed to possess the suit land in the grab of alleged land transaction with Sh. Ram Niwas.
7. It is further stated that the suit plot falls in Khasra No. 19/13/1, 19/14 is clear from the information dated 01.08.2007 received vide Section 6 of RTI Act which is as under:-
The plaintiff applied under Section 6 of the RTI Act 2005 for seeking information in respect of Khasra No. 19/13/1 (4-0) and 19/13 (3-0) situated within the revenue state of Village Badusarai New Delhi and its recorded owners vide dated 24.05.2007. The information furnished by SDM Najafgarh New Delhi clearly indicate that the plaintiff is the recorded owner of Khasra No.19/13/1 (4-0) and 19/13 (3-0) and one Shakuntla Kumari is owner of Khasra No. 19/13/1 min.(0-15) situated within the revenue state of Village Badusarai New Delhi.
8. It is the case of the plaintiff that the revenue authorities are not carrying out the demarcation due to pendency of litigation and for want of court orders.
9. It is further stated that plot No. 97 Village Badusarai Delhi forms part of Khasra No. 19/13/1 and not of Khasra No. 19/18 as is clear from the pass book issued in the name of the plaintiff and therefore the defendants are liable to vacate the suit plot and to pay Page No. 4/60 damages @ 10,000/- per month for unlawful and illegal use of premises. The defendants have illegally and unlawfully open doors towards the plot No. 98 of the plaintiff and have dumped the cow dung etc in a portion of plot 98 of the plaintiff after service of legal notice dated 09.02.2008 and even raise boundary walls and some temporary tin shed in the year 2005 without the consent or permission of the plaintiff.
10. It is further stated that on 12.02.2008 when plaintiff objected and stop the defendants from opening the door towards plot NO. 98 and dumping dung etc in plot Nos. 96 and demanded back the possession the defendant manhandled him and saved by the respectable of the village as the police refused to lodged any complaint against the defendants.
11. It is further stated by plaintiff that he had earlier filed a suit for permanent injunction against the defendant and has withdraw the same from the court of Sh. N. K. Laka Civil Judge on 08.01.2008 with the liberty to file a proper suit.
12. It is further submitted by the plaintiff that he got installed a sign board on the plot No. 88 of Village Badusarai for the information of the general public on 24.02.2008 regarding pendency of the litigation and that if anybody purchased the plot No. 88 he shall be bound by the decision of the court but the defendants colluded with Suresh and others created a scene as a result the matter was reported to the police on the same dated i.e. 24.02.2008.
Page No. 5/6013. As there is no other efficacious or alternative remedy, Hence, the present suit, wherein the plaintiff prayed for the relief of possession, directing the defendant to handover the vacant possession of plot No. 97 measuring 1550 sq yds of village Badusarai specifically shown in red colour in the site plan annexed with the suit and user and occupation of suit property since July 2005 alongwith interest @ 18% per annum and mesne profits @ Rs 10,000/- per month during the pendency of the suit until realization of the same with further relief of mandatory and permanent injunction
14. Summons for settlement were issued to the defendants.
15. The defendants in joint written statement contended that the present suit is filed by the plaintiff based upon the false and frivolous grounds as the allegations leveled in the plaint are contrary to the allegations made by the plaintiff in the previous litigation filed before the different court of law and the same are also contrary to the position of the plaintiff before the said court and also contended that the plaintiff has not come before this court with clean hands and is in guilty of suppressing the true material and correct facts.
16. It is the version of the defendant that the plaintiff alongwith his father in law, namely, Ram Niwas had purchased the land ad- measuring 10 bighas 5 biswa comprising in the Khasra No. 19/13,19/14 and 19/18 situated in the village Badusarai New Delhi and they had sold the entire land to different persons including the answering defendants and all of them had built up their residential Page No. 6/60 houses over the said land and are in possession of their respective plots.
17. It is further stated that there was no demarcation between the land of Khasra No. 19/13, 19/14 and 19/18 of village Badusarai and the plaintiff alongwith his father in law carved out an unauthorized colony and upto the year 1990 they had sold the most of the land/ plots to different persons. In the unauthorized colony the plaintiff left an area of approximately 800 sq yds for roads and the said area is fully electrified. The said land had been divided in different land which were sold to different peoples whose name are recorded in the karwai register of the consolidation officer and the above plots were included in the extended lal dora of abadi village Badu Sarai. It is further stated that the plots were given different numbers which are from 88 to 102 and the numbers 96 and 98 are for the rasta.
18. It is further contended that adjacent to the land of the plaintiff bearing Khasra No. 19/13, 19/14 and 19/18 the land having Khasra. No. 11/9, 10,11,12,19,20,24, 19/15,19/22, 23/2,3,3,7,9,10, 24/1, 2,3,6, 7,9 and 44 are situated and unauthorized colony developed thereon which is also having the community centre, primary school, DESU Transformer, Water pump, Harijan Chopal and a Barat Ghar. In the said unauthorized colony also plots had been sold to agreement to sell, GPA etc., and therefore, their names have not been entered into the revenue record and in the revenue records are still in the name of the original bhumidars who have sold the plots in the unauthorized Page No. 7/60 colony. In the said unauthorized colony more than 100 families are residing.
19. It is further stated that in the consolidation proceedings as the houses of the persons residing in the authorized colony came within the phirney of the village Badusarai and the persons built up their residential houses, they are treated as the scheme kabiz in the consolidation proceedings and as the roads are already in existence there is no need to cut out the muzrai.
20. It is further stated that on 18.09.1986 the defendants purchased the land measuring 1500 sq. yds situated in village Badusarai from sh. Ram Niwas ( father in law of the plaintiff), who alongwith the plaintiff carved out the above said unauthorized colony in the land bearing No. 19/13, 19/14 and 19/18 and Ram Niwas after receiving the entire sale consideration from the defendants had executed the agreement to sell, GPA, receipt and affidavit etc. all dated 18.09.1986 and on the same day he delivered the actual physical possession of the plot measuring 1500 sq yds to the defendants.
21. It is further their case that the plaintiff had also executed a general power of attorney in favour of Ram Niwas and authorized him to execute the documents of the plot carved out in the land bearing Khasra No.19/13,19/14 and 19/18 in village Badusarai and the plaintiff also received the consideration amount for the sale of the suit property.
22. It is further stated that after execution of the above documents Page No. 8/60 date 18.09.1986, the defendants came into possession of their plots and raised boundary wall and other huge construction i.e. 8-9 rooms, tin sheds, sheds for cartel etc. and also taken the electricity, water connection sometime in the year 1988-1989 and also installed four submersible (pump), the above stated constructions were within the knowledge of the plaintiff who had been frequently visiting the area.
23. It is further stated that in the year 1991, the plaintiff also filed a civil suit for injunction against the defendants bearing Civil Suit No. 460/95 titled as Trilok Chand Sharma v. Mahender Singh & Ors and in the said suit the plaintiff on 25.05.2004 filed an affidavit and the plaintiff specifically admitted that he had already sold the land of Khasra No. 19/13 and 19/14 and since than he is not in possession of the said land. In the said suit the plaintiff specifically admitted on 13.10.2005 that "the land which is in possession of the defendant on the spot is having Khasra No. 19/18 of Village Badusarai, the land which is in possession of the defendants is not having Khasra No. 19/13 of Village Badusarai." The said admission on the part of the plaintiff is a judicial admission and the plaintiff cannot rescind from the same.
24. It is further stated that the plaintiff had/ has no right, title and interest over the above said plot which is in possession of the plaintiff since 18.09.1986 and the defendants are the legal and true owners of the said plot.
25. It is further stated that if it is presumed "not admitted", that the Page No. 9/60 suit plot is not part of Khasra No. 19/18 of village Badusarai, even then the defendants also became the owner of the same by way of adverse possession as they are enjoying the possession of the same since 18.09.1986 and the plaintiff has wrongly stated that the defendants have trespassed over the suit land in the year 2005.
26. It is further stated that the plot bearing new khasra Nos. 88 to 97 and 99 which are carved out in the land bearing Khasra No. 19/13, 19/14 and 19/18 were already in existence prior to the commencement of the consolidation proceedings and most of the plots were sold by the plaintiff and his father in law through GPA, agreement to sell etc and some plots were sold by them through sale deed and therefore, the plots sold through GPA etc were not mutated in the name of respective purchasers in the revenue records and the said land is remained in the name of the plaintiff and his father in law. Now the intention of the plaintiff has become malafide and he wants to take the undue advantage of the revenue account which shows his name in the revenue record.
27. It is further the contention of the defendant that in the suit bearing No. 460/95, a site plan which had been filed in the year 1991 by the plaintiff in his examination in chief as Exhibit. PW1/E and in the said site plan the defendants are shown to be in possession of plot admeasuring 1500 sq. yards and apart from the defendants, Sh Rattan Singh admeasuring 2500 sq. yards +500 sq. yards, plot admeasuring 300 sq. yards is in possession of Sh. Phool Singh s/o Dhani Ram, plot Page No. 10/60 measuring 500 sq. yards in possession of Sh. Balwan Singh, plot measuring 1000 sq. yards in possession of Smt. Ram Kumar, plot admeasuring 900 sq. yards is in possession of Sh. Kundal Lal, plot admeasuring 500 sq. yards is in possession of Sh Randhir Singh, plot admeasuring 500 sq. yards is in possession of Sh Ranbir Singh, plot admeasuring 200 sq. yards is in possession of Sh. Ran Singh are also shown to be in possession of plots and therefore, in the present plaint the plaintiff has wrongly stated that the defendant has trespass over the suit land in the year 2004.
28. It is further contended by the defendant that the plaintiff has wrongly stated that defendants had trespassed over the suit land in the year 2005, whereas on the basis of judicial admission of the plaintiff and from the pleadings and the documents filed in the suit bearing no. 460/95 filed in the year 1991, it has been clearly proved that the defendants are in actual physical possession of the plot in question since the year 1986 as the owner of the same.
29. It is further contended that the plaintiff in suit No. 460/95 had filed an affidavit dated 25.05.2004 and in para 4 of his examination in chief, the plaintiff has admitted that he had already sold the land which is fallen in khasra no. 19/13 of village Badusarai and in his cross examination in the said suit the plaintiff specifically admitted that :-
(a) The plaintiff has lastly visited the land in question in the year 1990;Page No. 11/60
(b) Now the entire land i.e. Khasra No. 19/13/1, 19/14 and 19/18 of village Badusarai is fully built up colony and more than 10 -12 families are residing there;
(c) Over the land which the plaintiff had sold out of Khasra No. 19/14 and 19/18 presently a colony is residence and the plaintiff is not in a possession of any part of Khasra No. 19/13/1, 19/14 and 19/18;
(d) The plaintiff also admitted that on the spot the land bearing Khasra. No. 19/13, 19/14 and 19/18 are adjacent to each other and there is no demarcation of the said khasra numbers of the land.
(e) The land which is possession of the defendants on spot is having khasra no. 19/18 and not khasra no. 19/13 of village Badusarai.
30. It is the contention of the defendant that as most of the plots were sold by the defendant and his father-in-law through GPA, Agreement to sell etc therefore, the names of the respective purchasers were not mutated in the revenue records and said land remained in the name of the plaintiff and his father-in-law in the revenue record. Now the contention of the plaintiff has become mala-fide and he wants to take the undue benefits of the revenue record which shows his name on the record. It is a settled law of land, that mere entry in the revenue record does not create any right, title or interest of a person.
31. It is further the contention of the defendant that the suit of the plaintiff is barred by order 2 rule 2 CPC read with order 23 rule 1 CPC as relief claimed by the plaintiff was already available to the plaintiff in the year 1991 when the suit no. 460/95 titled as Trilok Chand Page No. 12/60 Sharma Vs. Mahinder & Ors., filed but in the above suit the plaintiff had relinquished the said relief (sic) i.e relief for possession and hence, the present suit is not maintainable and is liable to be dismissed.
32. In reply on merits the defendant denied all the averments made by the plaintiff in his plaint except to the extent that the plaintiff had purchased the suit property in year 1985 and his name was mutated in the revenue records vide khatoni No. 9/17min 1987-1988 and reiterated the submissions made by him in the preliminary objections as reproduced above.
33. In view of the above facts the defendant prayed for the dismissal of the suit with the exemplary costs.
34. In replication the plaintiff denied the averments of the defendant and reaffirmed the stand taken by him in the plaint and in a nutshell, it was submitted by the plaintiff that plot No. 88 to 99 were allotted during the consolidation proceedings by the Assistant Consolidation Officer and was formerly part of Khasra No. 19/13/1. It is further submitted by the plaintiff that the application under Order I, Rule 10 CPC filed by the defendant in suit No. 460/95 was dismissed by the concerned court and he never admitted the execution of alleged documents in respect of suit land (plot) in favour of the defendant.
35. On the basis of the pleadings of parties and the submissions advanced, the following issues were framed vide order dated 12.03.2014:
Page No. 13/601. Whether the suit has been properly valued for the purposes of Court fee and jurisdiction and appropriate court fee has been affixed on the plaint?
...OPP
2. Whether this court has pecuniary jurisdiction to entertain and try this suit? ... OPP
3. Whether the defendants are in possession of the suit property since or about 18.09.1986 on execution of GPA, Agreement etc. in their favour by Sh. Ram Niwas, for himself and as attorney of the plaintiff?
... OPD
4. Whether the defendants have become owners of the suit property by way of adverse possession?
..OPD
5. Whether the jurisdiction of Civil Court is barred U/s 44 The East Punjab Holdings (Prevention & Consolidation of Fragmentation), Act 1948 in respect of the subject matter of suit? ...OPD
6. Whether the suit is barred by the provisions of Order 2 Rule 2 CPC? ... OPD
7. Whether the defendants have acquired any right in the suit property on being treated as scheme kabiz of the suit property, during Consolidation Proceedings? ...OPD
8. Whether the plaintiff is entitled to decree of possession of the suit property against the defendants? ... OPP
9. Whether the plaintiff is entitled to decree of mandatory injunction as has been claimed in the suit? ... OPP Page No. 14/60
10. Whether the plaintiff is entitled to decree of permanent injunction against the defendant as claimed? ... OPP
11. Whether the plaintiff is entitled to recover the damages for use and occupation of the suit property from the defendants? If so, at what rate and for which period? ... OPP
12. Whether the plaintiff is entitled to recover interest on the amount, if any awarded under issue No. 11, if so at what rate and for which period?
... OPP
13. Relief.
(Issue nos. 1 and 2 are treated as preliminary issues and vide order 27.10.2016 both the issues are treated as infructuous)
36. In order to prove his case, plaintiff during his evidence, examined five (5) witnesses in all.
37. The plaintiff entered in witness box as PW-1 and tendered his evidence by way of affidavit Ex PW1/A and reproduced the facts already stated by him in his plaint and relied upon the below mentioned documents, it is apposite to mention that vide daily order dated 09.03.2021, the predecessor of this Court, while allowing the application under Section 153 CPC filed on behalf of plaintiff, the corrections were made with regard to marking the exhibit numbers and after correction, the corrected exhibits numbers are mentioned Page No. 15/60 below. PW-1 was cross examined at length by the counsel defendant and was discharged:-
Sl. No. Description of document(s) ExExhibit/Mark No.
1. Sale Deed dated 02.12.1985 Ex.PW1/1(OSR)
2. Revenue report vide khatoni No.9/17min. Ex.PW1/2 year 1987-88
3. Certified copy of the order dated Ex.PW1/3 08.01.2008 passed in suit No. 1109/06
4. Pass book by the consolidation officer Ex PW1/4
5. Copy of order passed by Finance Ex PW1/5 Commissioner
6. Certified copy of case file of the Ex PW1/6 (Colly) complaint case bearing CC No. 428590/2016 titled as Trilok Chand Vs. Kundan Lal pending before the court of Sh Siddharth Malik, Ld. MM, South West Dwarka Courts, New Delhi
7. Information received under RTI Act Mark 'B' 8. Site plan Ex PW1/8 9. Legal notice Ex PW1/9 10. Postal receipts Ex PW1/10
11. Kayami Register is already exhibited Ex PW2/1 on 28.11.2018
12. Copy of FSL report 29.10.2013 and Mark A and Mark 23.05.2014 B
13. Copy of summoning order dated Mark C 11.02.2015
14. Copy of certified copy of order passed by Mark D the Financial Commissioner, Delhi in case No. 103/2006 dated 26.09.2013 Page No. 16/60 Following documents are put to the PW-1 during his cross examination
1. Certified copy of evidence by way of Ex.PW1/DX1 affidavit tendered, examination in chief (Colly.) dated 25.05.2004 and cross examination recorded on 26.02.2005, 01.09.2005 and 13.10.2005 in Suit No.1190/16 (460/95)
2. Site plan bearing endorsement of Ex.PW1/DX2 Ex.PW1/E dated 26.02.2005
3. Application under Order I, rule 10, CPC Ex.PW1/DX3
4. Khasra girdawaries for the year 1995-96, Ex.PW1/DX2 1996-97, 1997-98, 2000-2001 (Khasra (Colly) No.19/13) and 19/14), 1989-1990 (Khasra No.19/13/1, 19/14 and 19/18) and 2001-02 (Khasra No.19/18)
38. PW-2 Rajesh Sharma, Halqua Patwari, Village Badusarai, Tehsil Kapashera, District South West Delhi appeared and proved the Khatoni Pemaish register pertaining to the year 2015-2016 as Ex PW2/A.
39. PW-3 Sh Pamod Kumar Singh, Assistant Ahalmad from the court of Sh. Siddharth Malik, Ld. MM, Dwarka Courts, New Delhi has appeared and proved the following documents:
Sl. No. Description of document(s) Exhibit/Mark No.
1. Summoning order dated Ex.PW3/1(OSR) 11.02.20215 passed in CC No.428590/16, PS Najafgarh Page No. 17/60
2. Investigation report filed by SI Ex.PW3/2(OSR) Veer Singh PS Najafgarh
3. FSL report which consists part of Ex.PW3/3(OSR) Ex.PW3/2
4. Complaint lodged by plaintiff Ex.PW3/4 Trilok Chand under Section 200 Cr.PC bearing CC No.428590/16
40. PW4 Sh. Manish Kanungo, Record room from SDM office Najafgarh, New Delhi appeared and proved the following documents:
Sl. No. Description of document(s) Exhibit/Mark No.
1. Extract of khatoni chakbandi Ex.PW4/A(OSR) pertaining to khata No.14/9min.
2. Extract of register karwahi Ex.PW4/B(OSR) pertaining to kh.No.88 to 99
3. Extract of masavi of village Badu Ex.PW4/C(OSR) Sarai
41. PW-5 SI Veer Singh appeared before this court and proved the documents i.e. certified copy of cross-examination of PW5 dated 09.01.2017 in CC No.428590/16 and same is Ex.PW5/DX1.
42. Thereafter, plaintiff closed his evidence and matter was fixed for defendant evidence. In order to prove its case defendant examined five witnesses.
43. Sh. Rakesh Kumar, Kanungo from the office of Sub Division, Najafgarh has appeared and examined as DW-1 and proved the following documents: -
Page No. 18/60Sl. No. Description of document(s) Exhibit/Mark No.
1. Register Karwai, Chakbandi Ex DW1/1 (OSR) bearing Khasra No. 19/13/1 and 14 of village Badu Sarai
2. Khasra girdawari pertaining to Ex DW1/2 (OSR) year 1989-1990 of Village Badu Sarai bearing Khasra No. 19/13/1 and 14
3. Khasra girdawari pertaining to Ex DW1/ 3 (OSR) year 1995-1996 of Village Badu Sarai bearing Khasra No. 19/13/1 and 14
4. Khasra girdawari pertaining to Ex DW1/4 (OSR) year 1996-1997 of Village Badu Sarai bearing Khasra No. 19/13/1 and 14
5. Khasra girdawari pertaining to Ex DW1/5 (OSR) year 1997-1998 of Village Badu Sarai bearing Khasra No. 19/13/1 and 14
6. Khasra girdawari pertaining to Ex DW1/6 (OSR) year 1998-1999 of Village Badu Sarai bearing Khasra No. 19/13/1 and 14
7. Khasra girdawari pertaining to Ex DW1/7 (OSR) year 1999-2000 of Village Badu Sarai bearing Khasra No. 19/13/1 and 14
8. Khasra girdawari pertaining to Ex DW1/8 (OSR) year 2000-2001 of Village Badu Sarai bearing Khasra No. 19/13/1 and 14 Page No. 19/60
44. DW-2 Unique Kaushik, Jr. Asst of Financial Commissioner, Commissioner Civil Lines, Delhi appeared in witness box and proved the Patwari report dated 29.02.2007 filed in case No.205/07 before Financial Commissioner Delhi along with copy of register karwahi chakbandi dated 17.02.2007 and copy of khatauni pertaining to the year 1990-1991 and same is Ex.DW2/A (running into 5 pages) (Colly) (OSR).
45. The defendant No.3 namely Raghubir Singh s/o Rattan Lal entered in witness box as DW-3 and tendered his evidence by way of affidavit Ex DW1/A and reproduced the facts already stated by him in his written statement and relied upon the below mentioned documents, he was cross examined at length by the counsel for the plaintiff and was discharged: -
Sl. No. Description of document(s) Exhibit/Mark No.
1. Document already Ex PW1/DX-1 (Colly)
2. Site plan bearing endorsement of Ex Already exhibited as PW1/E (already exhibited) dated Ex PW1/DX-2 26.02.2005
3. Application under Order I Rule 10 Already exhibited as CPC Ex PW1/DX-3
4. Electricity bills of electricity meter Ex DW3/1 (Colly) installed in the suit property (OSR)
5. Register karaiwahi chakbandi Already exhibited as pertaining to the plots Nos. 88 to 99 Ex DW3/2 (OSR)
6. Khasra girdawaries for the year Already exhibited as Page No. 20/60 1995-96, 1996-97, 1997-98, 2001-01 Ex. PW1/DX-4 (Colly) (khasra No. 19/13 and 19/14), 1989-
90(khasra No. 19/13/1, 19/14 and 19/18) and 2000-01 (khasra No. 19/18)
7. Halka Patwari report, register Already exibited as Ex karaiwahi chakbandi and the khatauni PW1/DX-5 of the year 1990-91
8. Photocopies of documents dated Mark 'A' (Colly) 18.09.1986 Following documents are put to the DW-3 during his cross examination
1. Certified copy (copy to copy) of the Ex DW3/PX-1 GPA dated 18.09.1986
2. Affidavit dated 18.09.1986 Ex DW3/PX-2
46. Mr Baljit Singh entered in witness box as DW-4 and tendered his evidence by way of affidavit Ex DW4/A and proved his Aadhaar card as Ex DW5/1 (OSR) (sic).
47. Mr Jeet Singh entered in witness box as DW-5 and tendered his evidence by way of affidavit Ex DW5/A and proved his Aadhaar card as Ex DW5/1 (OSR).
48. I have heard the Ld. Counsel for both the parties at length and they are argued in tandem with the pleadings and evidence led on behalf of the respective parties and gone through the case file.
Page No. 21/60FINDING
49. Before adverting to the issue wise finding it is the settled law laid down in catena of judgments especially in judgment titled as Anil Rishi v. Gurbakh Singh 2006 (5) SCC 558, wherein it was held that ordinarily the burdened of proof would be on the party who asserts the affirmative of the issue and not the party who denies it. Further in Sebastio Luois Fernendes v. K.V.P. Shastri , 2014 AIR (SC) 977 it was held that burden of proof lies upon a person who has to prove the fact and which never shifts.
50. In view of the ratio of the above cited judgments, in the present case the initial burden lies upon the plaintiff to prove that in the year 2005 after the conclusion of the consolidation proceedings, he was in possession of suit plot and thereafter, the defendants trespassed and forcibly taken possession of suit property measuring 1550 sq. yards. Therefore, this court deems appropriate to take up the Issue Nos. 8 first i.e. Issue no.8- Whether the plaintiff is entitled to decree of possession of the suit property against the defendants? ...OPP
51. On plain reading of the pleadings of the plaintiff, it is relevant to observe that the pleadings of the plaintiff are vague, incomplete and self-contradictory.
Page No. 22/6052. In para no. 3 and first part of para no. 5 of the plaint, it is mentioned that the defendants illegally and unlawfully trespassed in land measuring about 50 sq. yards surrounding the earlier land and suddenly in latter part he mentioned that "accordingly, now the land measuring 1550 sq. yards bearing plot No. 97 Village Badusarai has been illegally and unlawfully trespassed by the defendants without any right title, or interest by using fraudulent means and muscle power since 2005 i.e. the defendants got their names mentioned in the kayami register without disclosing their right, title and interest and subsequently trespass into surrounding land".
53. It is nowhere mentioned in the entire plaint, how and when the defendants while trespassing into 50 sq. yard land of the plaintiff came into possession of additional land of 1500 sq. yards and thus trespassed into total 1550 sq. yards of plot No.97 of the plaintiff? Whereas, the plaintiff is seeking relief of possession of 1550 sq. yards in the present suit. Therefore, the suit of the plaintiff is liable to dismissed on this ground alone, as it is settled law that without necessary pleadings which gave rise to the cause of action in favour of a party, the relief prayed for cannot be granted.
54. It is observed that the plaintiff has intentionally done so and suppressed material facts from the Court, in order to save the limitation period as the suit of the plaintiff is barred by limitation as far as the relief of possession of land measuring 1500 square yards is concerned and the reasons for the same are as follows:
Page No. 23/60A. In his plaint as well as during cross examination, the plaintiff admitted that he has earlier filed a civil suit against the present defendants bearing no. CS-460/95 on 02.01.1991 (date mentioned in verification) in the Court of Senior Sub Judge, Delhi (hereinafter mentioned as "Previous Suit") and this Court has gone through the certified copy of plaint, written statement, interim order passed on interim injunction application dated 21.03.1994 and copy of application under order 39 rule 2A filed by the plaintiff. It is also relevant to observe that the above copies are on the judicial file but none of the parties tendered them in evidence during their respective evidence, but as the filing of the Civil suit as well as contempt application is himself mentioned in the plaint of the plaintiff and even during cross examination the plaintiff was confronted with his examination and cross examination in the previous civil suit alongwith Site plan filed in the previous suit and he admitted them as Ex. PW- 1/DX-1 (colly) and PW-1/DX-2 and accordingly, as per Section 79 of the Indian Evidence Act, rebuttable presumption of law exists in favour of certified copies to be genuine copies of public record, therefore, this Court proceeds further to rely upon the pleadings, order under 39 rule 1&2 and chief as well as cross examination of the plaintiff and also the contempt application filed by the plaintiff in the previous suit and the contents of the plaint and written statement of previous suit, in Page No. 24/60 brief reproduced herein, the plaintiff filed the Civil Suit on the following grounds:
B. That the plaintiff had actually purchased piece of land measuring 7 Bighas comprising an Khasra No. 19/13/1 ( 4-0) and 19/14 ( 3-0) situated in village Badusarai, Delhi from Sh. Ran Singh and Sh. Narain Singh against consideration of Rs. 30,000/- through a registered sale deed dated 29.11.1985. C. That the plaintiff had already transferred the major portion of the said property and is present the plaintiff is actual owner and in possession of piece of land measuring 3000 square as shown in red colour in the site plan attached.
D. That all the defendants are quite stranger as to the suit property and none of the defendants has any sort of right and interest or claim in the suit property in any manner but the defendants are a gang of land grabbers and they have made up a plan to take illegal adverse forcible possession of the suit property with ulterior motive to transfer the same to some other person through illegal sale transaction by using fake and forged documents.
E. That the plaintiff was present on the suit property in the morning of 01.01.1991 and seen the defendants coming towards the suit property and showing the same to the proposed buyers when the plaintiff objected the defendants threatened the Page No. 25/60 plaintiff that they will take the possession of the suit property and raise structures thereon.
F. On the basis of above pleadings, the plaintiff filed the suit for permanent injunction for restraining the defendants from taking legal forcible possession of the suit property measuring 1500 sq. yards out of 3000 yards situated in Khasra No. 19/13/1 situated in village Badusarai as shown in red other in the site plan attached.
G. The defendants filed their written statement on 11.01.1991 and had taken up the defence that the defendants are the real owners and in possession of land are measuring 1500 sq. yards forming part of Khasra No.19/13/1. They have purchased the piece of land measuring 1500 sq. yards from one Sh. Ram Niwas on 18.09.1986 and after purchasing the same they have constructed tin shed on that land and using the land for putting their dung cakes and also built their bitoda (storage for dung cakes) and are using the same site for the purpose of storing dry fodder for the animals and also using the same plot of land to teeth their cattle.
They have further raised the boundary walls up to 4 feet height towards the south and east side and a boundary wall of about 2 feet on western side and 1 feet height on northern side and since then the same is under the exclusive possession of the defendant No. 1 to 5 moreover there is a road about 30 feet in width on the Page No. 26/60 south side and 15 feet of it on the eastern side adjoining the defendant land.
H. On perusal of certified copy of an order dated 21.03.1994 passed by Sh. Virender Kr. Goyal, Ld. Civil Sub Judge, Delhi, it is observed that the interim application under order 39 rules 1 and 2 CPC filed by the plaintiff was disposed off. The operating portion of the said order is reproduced herein for better understanding:
I have heard the counsel for the parties and have perused the case file carefully. The plaintiff has filed the sale deed and Khatauni etc. in respect of the Khasra No.19/13/1 & 19/14. On the other hand the defendants have filed the GPA etc. in respect of Khasra No.19/18 which itself is not supporting the contentions of the defendants as set out in the written statement however as the plaintiff had admitted in the replication and contempt petition that the defendants have raised superstructure i.e. one tin shed and 1 room etc. on portion of the suit premises/property. As the defendants are not primary owner of the suit property having no legal right to retain the same but there is no relief for restoration of the suit property and for possession of the suit property filed by the plaintiff, hence there is no prima facie case in respect of the portion i.e. 1500 sq. yards in occupation of the Page No. 27/60 defendants. The plaintiff has submitted that he is owner of 3000 sq. yards hence there is a prima facie case for remaining land and balance of convenience also lies in his favour. The plaintiff shall suffer irreparable loss which cannot be compensated if the leave is not granted to him in view of the above discussion the defendants are hereby restrained from taking forcible possession of the remaining land as alleged and are also directed to maintain status quo in respect of the land in their occupation as shown in the site plan attached and filed by the defendants in respect of the Khasra No.19/13/1 situated in village Badusarai, Delhi till the disposal of the case."
I. The above order passed by the Ld. Sub Judge, Delhi on 21.03.1994 clearly shows that the defendants were already in possession of the land measuring 1500 sq. yards and therefore, it was in the knowledge of the plaintiff that the defendants are already in possession of 1500 sq. yards land of the plaintiff and have also raised construction over the said portion of land and the defendants were restrained from taking illegal possession of the remaining 1500 sq. Yards of land of the plaintiff and the defendants were further directed to maintain status-quo qua the 1500 sq. Yards of land already in their possession.Page No. 28/60
J. It is neither the pleaded nor it is proved during examination by the plaintiff that the above order was ever challenged by the plaintiff, thus raising a presumption that the above order dated 21.03.1994 attained finality.
K. Interestingly, the plaintiff never amended the civil suit filed before the Ld. Sub. Judge, Delhi to seek the relief of restoration of possession despite specific finding to this effect given by the Ld. Sub Judge while disposing of the interim injunction application of the plaintiff.
L. Even the plaintiff had himself shown the defendants in possession of land measuring 1500 sq. yards in the site plan annexed and relied upon by him in the previous suit filed in the year 1991. This fact stands established from the site plan tendered into evidence as Ex PW1/E before the Ld. Civil Judge, Delhi in suit No. 460/1995. During the cross examination in the present suit, the plaintiff categorically admitted that the site plan was prepared and filed on his instructions. It further shows that the suit for permanent injunction filed by the plaintiff on the ground that the defendants are trying to forcibly take over the possession of the land measuring1500 sq. yards of his land is in contradiction with the site plan as in the site plan, as one hand he himself is showing the defendants in possession of his land measuring 1500 sq. yards and on the other hand interestingly he is seeking restraint orders by way of permanent injunction to Page No. 29/60 stop the defendants from taking forcible possession of his property.
M. Further, the plaintiff in para No. 3 in the present plaint specifically mentioned about the contempt petition filed by him before the court of Sub Judge, Delhi. It is the contention of the plaintiff that he filed the same on the ground that the defendants illegally and unlawfully trespassed in a portion of land measuring about 50 sq yards of the plaintiff., whereas on perusal of the contempt petition it is observed that the plaintiff filed the same on the ground that despite the orders to maintain status quo in respect of the land measuring 1500 sq yards already in possession of defendants, the defendants raised further super structure over the said land.
N. Even during cross examination on 20.03.2019 in the present suit, the plaintiff in answer to the question reproduced as below:-
Question: I put it to you that your father in law Ram Niwas sold the land by sale deed under Khasra No. 19/18 as a plot admeasuring 2920 sq yds out of 3 bigha-5 biswa to the father of Ishwar Pehlwan namely, Rattan Singh (deceased) on 05.10.1989, is it correct?
Ans: Five brothers bought land 1500 sq. yards under Khasra No. 19/18 and there was a tubewell on the said land and these five brothers informed my father in law after buying the said Page No. 30/60 land that there is dispute amongst themselves, who told my father in law that they will buy land 2920 sq yds in the name of their father in khasra No. 19/18 and they would return him the power of attorney. They did not return the power of attorney to my father in law but they did purchase 2920 sq yards in the name of their father by sale deed.
O. The above testimony of the plaintiff shows that even before the execution of sale deed on 05.10.1989 in favour of Rattan Singh the father of the defendants herein, execution of GPA on 18.09.1986 in favour of the defendants was in the specific knowledge of the plaintiff.
P. It is further deposed by the plaintiff during cross examination that "it is correct that as on today Sh. Ishwar Pehlwan (one of the defendants in present suit) are in occupancy and possession of land admeasuring 1500 sq yards in khasra No. 19/13/1. vol. Mahender Singh, Ishwar Singh, Phool Singh, Sunder and Rajbir are showing the papers of land under Khasra No. 19/18 signed by Ram Niwas as of land under Khasra No. 19/13/1 and all these persons are forceful occupation of land. Q. The above deposition shows that the defendants are in continuous possession of the land measuring 1500 sq. yards since the date of execution of GPA dated 18.09.1986. R. The Ld. Counsel for the defendants during cross examination on 29.03.2019 by showing him the site plan Ex PW1/E (site Page No. 31/60 plan admitted by the defendant during cross examination in the present suit and marked as Ex. PW-1/DX-2) asked the following question to the plaintiff i.e. you have earmarked a plot of land in blue colour ink admeasuring 1500 sq yards and in that plot of land you have shown the names of Ishwar Singh, Mahender Singh, Surender Singh, Raghubir Singh, Phool Singh, what you have to say? and the plaintiff answered as follows:-
"It is correct that the names of Ishwar Singh, Mahender Singh, Surender Singh, Raghubir Singh, Phool Singh all sons of Rattan Singh are reflected in the site plan and they were in possession at the time of preparation of site plan, And it is further admitted by the plaintiff in his cross examination that site plan was prepared in the year 1991 on the instructions of the plaintiff and same was filed alongwith the suit no.460/1995 S. Further, during cross examination on 04.04.2019 by confronting the plaintiff with the General Power of Attorney dated 18.09.1986, the following question was put to the plaintiff:-
Question: I put to you, whether the said GPA dated 18.09.1986 which you had earlier stated to not have been returned by the five brothers to your father in law Ram Niwas.
What do you have to say?
Ans It is the same GPA about which I have mentioned earlier.
Page No. 32/60Question: I put to you, whether the said GPA dated 18.09.1986 alongwith affidavit dated 18.09.1986 was executed by your father in law?
Ans. Yes. It is signed and executed by my father in law.
55. In view of the pleadings of previous suit reproduced above and the order passed by the Ld. Sub Judge while disposing off interim application under order 39 rule 1&2 CPC, 1908, the contempt petition filed by the plaintiff and his deposition during cross examination in the present suit, it stands established that
(a) Execution of GPA dated 18.09.1986 by Ram Niwas in favour of the defendants was in the knowledge of the plaintiff and as per site plan Ex PW1/E admitted by the plaintiff in the present suit as Ex PW1/DX-2, the defendants were in possession of the land measuring 1500 sq. yards on the basis of GPA dated 18.09.1986.
(b) Once, the defendants in Civil Suit no. 460/1995 had taken the stand that they are in possession of the land on the basis of GPA, Agreement to Sell etc all dated 18.09.1986 comprising under Khasra no. 19/18 and even the prima facie view given by the ld. Sub judge that the defendants are already in possession of 1500 sq. yards of land while disposing off the interim application under order 39 rule 1&2 on 21.03.1994, the plaintiff never amended the suit to seek the relief of possession.
Page No. 33/60(c) The plea of the plaintiff that he filed contempt petition on the ground that despite stay order granted by the Ld. Sub Judge on 21.03.1994, the defendants trespassed into his land is not sustainable, firstly, in the body of the plaint in the present suit, he stated that the contempt petition was filed as defendants trespassed in 50 sq. yards of land and while under cross examination he deposed that the same was filed as despite stay granted to restrain the defendants they were trying to trespass into 1500 sq. yards of land, whereas on perusal of the contempt application it is observed that the same was filed on the ground that the defendants despite status quo order, raised the super structure over land measuring 1500 sq. yards which is already under their possession.
(e) Admittedly, as per Ex. PW1/3, the plaintiff had withdrawn the Civil Suit No. 460/1995 only on 08.01. 2008 on the ground that as the defendants have taken possession of the suit property the suit has become infructuous and the same may be allowed to be withdrawn with the liberty to file afresh and the Ld. Civil Judge, Sh. N. K. Laka vide its order dated 08.01.2008 dismissed the suit as withdrawn with the liberty to the plaintiff to avail legal remedy available with him.
56. However, this Court is of the view, the previous suit for permanent injunction was infructuous even on the date of its filing, and by all means the previous suit had clearly became infructuous on 21.03.1994, the date of passing of order on interim injunction, when the Ld. Sub Judge gave its finding on interim application that the Page No. 34/60 defendants as admitted by the plaintiff in his replication and contempt petition are already in possession of land measuring 1500 sq. yards and as there is no relief for restoration of the suit property and for possession of the suit property filed by the plaintiff and therefore, balance of convenience do not lie in favour of the plaintiff.
57. As per article 65 of the Limitation Act, 1963, a suit for possession based on title can be filed within 12 years from the date when the possession of the defendant becomes adverse to the plaintiff and in view of the discussion made above the possession of the defendants become adverse to the plaintiff in the present suit, firstly, on 18.09.1986 on the date of execution of GPA in their favour by the father in law of the plaintiff, secondly, it can be said that the same become adverse when the plaintiff filed suit no. 460/1995 on 02.01.1991 wherein he himself shown the defendants in possession of plot measuring 1500 sq. yards and lastly, by all means it became adverse on 21.03.1994 when the Ld. Sub Judge refused to grant stay in respect of 1500 sq. yards of land already in possession of the defendants. Thus, if 12 years are being calculated from the last date of knowledge of the plaintiff to the effect that the defendants are in possession of his land under Khasra no. 19/13/1 on the basis of GPA dated 18.09.1986 executed by his father in law of Khasra no. 19/18, at least from 02.01.1991 the date of filing of the civil suit no. 460/1995 then the limitation period has expired on 02.01.2003 and if it is calculated from 21.03.1994, the limitation period has expired on Page No. 35/60 21.03.2005 and admittedly the present suit is filed on 08.03.2008, therefore the suit of the plaintiff qua the possession of 1500 sq. yards of land is barred by law in terms of Article 65 read with Section 27 of the Limitation Act, 1963, which provides that the on expiry of limitation period, not only the remedy but the right also stands extinguished.
58. Thus, firstly the suit of the plaintiff is liable to be dismissed on the ground of absence of pleadings qua the relief of recovery of possession of 1500 sq. yards and Secondly, on the ground that the suit of the plaintiff is time barred in respect of land measuring 1500 sq.yds and the same is in the exclusive knowledge of the plaintiff even before the filing of the civil suit no. 460/1995 in the year 1991 and only due to this the reason the plaintiff intentionally not mentioned so in the present plaint about the date of trespass by the defendants in the land measuring 1500 sq. yards in addition to land measuring 50 sq yards as mentioned in the present plaint by the plaintiff and thirdly, on the ground that non mentioning of date of trespass of defendants in 1500 sq. yards of land intentionally amounts to suppression of material facts from the Court and it amounts to playing fraud with the Court as the plaintiff tried to act smart by intentionally omitting the necessary pleadings qua the relief of possession of 1500 sq. yards of land.
1. It is relevant that the Apex Court in Dalip Singh v. State of U.P. (2010) 2 SCC 114 condemned the practice of misrepresentation of facts and suppression of material facts & observed as under:
Page No. 36/60"For many centuries, Indian society cherished two basic values of life i.e., Satya (truth) and `Ahimsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In last 40 years, a new creed of litigants has cropped up.
Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final".
59. Moving further even as far as the relief of remaining 50 sq. yards is concerned, the plaintiff never led in evidence to prove that on which date the defendants trespassed into additional land of 50 sq. yards, he only averred in the plaint that the defendants trespassed into Page No. 37/60 additional land in the year 2005 by getting their name entered in the register karwai Chakkbandi without disclosing their right, title and interest.
60. It seems that the plaintiff withdrawn the suit in the year 2008 on the basis of issuance of consolidation pass book Ex PW1/3 by the consolidation officer in the year 2005 wherein the name of the plaintiff is shown in khasra No. 88 to 99 and wherein khasra No. 97 is shown to be measuring 1 bigha -11 biswa i.e. 1550 sq yds and that is why the plaintiff has now claimed the relief of possession of 1550 sq. yards and not 1500 sq. yards as claimed by him in previous suit no 460/1995.
61. The basis of the claim of additional 50 sq. yards given by the plaintiff in his plaint is that the defendants in collusion with the revenue officials got their names mentioned in the kayami register and after going through the kayami register Ex.PW2/1(in fact the same is Ex. PW-2/A and may be inadvertently mentioned as Ex. PW-2/1), it is observed that name of the defendants is not found mentioned therein. In fact, the names of the defendants are found mentioned against Khasra no.97 in the register karwai chakkbandi Ex. DW-1/2, which was also produced by DW-3 and tendered it into evidence as DW-3/A (colly).
62. In his pleadings as well as during cross examination it is admitted by the plaintiff that he challenged the entries in the Karwai Page No. 38/60 register before the Financial Commissioner by way of revision petition and deposed as follows:
It is correct that I had approached the Financial Commissioner with regard to challenging the entries of name in karwai register during the consolidation proceedings. Vol. I had filed a revision petition under the impression that my name was deleted. During the course of proceedings I learnt that my name is very well intact in the karwai register and thus I withdrew my revision petition.
63. It is clearly mentioned in the karwai register that the entries are made on the basis of previous possession of the persons on the basis of their houses/plots built over the Khasra no. 19/13/1 and 19/14 and the defendants are shown in possession of Plot no. 97 measuring 1 bigha- 11 biswa i.e. 1550 sq. yards.
64. The defendants produced the witness namely Unique Kaushik, Jr. Assistant, from the Court of Financial Commissioner Delhi as DW- 3, who brought the patwari report dated 29.02.2007 filed in case no. 205/07 before financial commissioner Delhi alongwith copy of register karwai chakbandi dated 17.02.2007 and copy of Khatauni pertaining to the year 1990-91 and tendered them in evidence as Ex. DW3/A(OSR)(Colly, running into 5 pages).
65. The report of the patwari dated 29.02.2007 is reproduced herein (the report is in hindi and the same is translated into English for better understanding) Page No. 39/60 "In reference to case bearing no.100/06-CA and case bearing no.102,103,101/06-CA, the inspection was conducted at the spot of Khasra no. 19/13/1(4-0) and 19/14 ( 3-0). It is submitted that the aforesaid Khasra numbers are prior to the consolidation proceedings and their ownership is in the name of Trilok Chand s/o Sh. Hardwari lal Sharma r/o 165-Wz, harinagar, Delhi. The ownership of 0-15 biswas out of Khasra no.19/13/1 is in the name of Smt. Shakuntla Kumari w/o Sh. S.S. Dhayia r/o Khanda, District Sonepat, Haryana. On inquiry it came to the knowledge that the above person about 10 years ago after cutting the plots out of the aforesaid Khasra numbers as a colony sold the same to different buyers, whose names after consolidation are recorded in the Register Karwai. Sir, after consolidation the Khasra numbers came within the jurisdiction of extended lal dora of village Badusarai. The name of the persons who were residing in those plots after construction of their houses, were recorded as kayami as per their possession in the plots/houses and after conclusion of consolidation proceedings their names were entered in the register karwai Chakbandi and all the plots/houses were given different numbers i.e. number 88 to 102 out of which Khasra no. 96 and 98 is passage. Sir, before consolidation the Khasra numbers were of agricultural land and developing them as a colony was Page No. 40/60 not lawful and after consolidation as per section 21 of the DRC Act, the land has to vest in Gram Sabha, however, as the Khasra numbers were in the ownership of Trilok Chand Sharma therefore after consolidation the ownership was recorded in his name and the persons who were in possession at the spot, they were recorded as possessors. The fard before and after the consolidation is attached herewith".
66. The above report filed by the patwari clearly shows that the entries in the karwai register were made on the basis of the previous possession of the purchasers of the property, plaintiff never produced any witness to rebut the said report and therefore, the claim of the plaintiff that the defendants in connivance with the revenue officials got their names mentioned register karwai chakkbandi and got their name entered by use of muscle power is not sustainbale.
67. Further, the plaintiff in his plaint mentioned about the RTI reply obtained by him which is bearing Mark 'B'. On perusal of the RTI reply obtained by the plaintiff, the same instead of supporting the case of the plaintiff rather supports the case of the defendants and it is specifically mentioned in the RTI reply bearing RTI no. F.17(17)/RTI-05/2011/5339 dated 23.08.2011 and I.D.No. 147 dated 19.08.2011 that as per record, the answer to the questions asked is as follows:
a. As per record there is no separate resolution. Only the name of those persons who have their houses built upon the Khasra Page No. 41/60 numbers is mentioned. The copy of the resolution by which name of the entitled persons is entered is annexed herein. b. As per record, the persons are recorded as possessors only on the basis of their previous possession and not under any resolution to declare the possession holders as Kayami. c. No kayami is done on the basis of Power of attorney, it is done only on the basis of their previous possession.
68. The above report of patwari and RTI reply obtained by plaintiff shows that the defendants have not by use of their muscle power entered any land measuring 50 sq. yards after the consolidation proceedings came to an end in the year 2005 but they were already in possession of the said land, which is part and parcel of the land measuring 1500 sq. yards, which is given new number 97 and the plaintiff tried to make out the case of trespass of 50 sq. yards only on the basis of area mentioned against the said plot as 1 bigha -11 biswa i.e. 1550 sq. yards.
69. There is one other aspect which is observed by this Court after going through the testimony of the plaintiff during cross examination, that in fact he is not even in possession of an inch of land under his ownership and possession under Khasra no. 19/13/1 and 19/18 at the time of effective commencement of Consolidation proceedings in the year 2004 and reasons for the such observation are discussed herein below.
A. On the basis of the cross examination of the plaintiff in the Page No. 42/60 present suit as well as his examination in chief and cross examination Ex PW1/DX-1 (colly) in suit no. 460/1995, the nutshell of the testimony of plaintiff is as follows :-
(a) Plaintiff and his father in law namely Ram Niwas, simultaneously purchased land comprising in Khasra no.
19/13/1, 19/14 and 19/18 at village Badusarai, Tehsil Najafgarh New Delhi. The land under the above Khasra numbers is adjacent to each other and forms contiguity and further no demarcation of the land took place at any point of time and therefore, the plaintiff as well as Ram Niwas become co-sharer in total land measuring 10 bigha-5 biswa i.e. 10,250 sq. yards.
(b) Plaintiff and Ram Niwas sold the land under their joint share holding by cutting plots to different persons and that too before the commencement of the consolidation proceedings
(c) The colony already came into existence before the commencement of consolidation proceedings and 10-12 families were already residing there.
(d) Plaintiff admitted that he has already sold the land under khasra no. 19/13/1 and 19/14 to different persons by GPA/SA sales before the commencement of consolidation proceedings and as per his deposition last plot was sold in the year 2002 to Angoori Devi.
(e) Plaintiff further admitted that plot no. 96 and 98 measuring 1300 sq. yards is rasta in the colony. The fact also stands Page No. 43/60 corroborated by the testimony of PW-4 namely Manish, kanungo, produced by the plaintiff himself and he deposed that as per Masavi Ex. PW4/C, plot no. 96 & 98 is rasta measuring 1300 sq. yards.
(f) Plaintiff further admitted during cross examination that the land measuring 1500 sq. yards is under alleged illegal possession of Mahinder Singh & others at least before the execution of sale deed in favour of their father namely Rattan Singh executed by his father in law Ram Niwas vide sale deed dated 05.10.1989.
(g) Plaintiff further admitted that on the same day when sale deed of land measuring 2920 sq. yds out of Khasra no. 19/18 was executed in favour of Rattan Singh by his father in law, Ram Niwas, Sale deed of land measuring 1080 sq. yards was also executed by him and his father in law in favour of Smt. Shakuntla w/o Col/ Dhayia out of Khasra no. 19/18 and 19/13/1. However, it is the stand of the plaintiff while under cross examination in civil suit no. 460/1995 that only a area of 150-200 sq. yards is sold from Khasra no. 19/13/1 and the remaining portion is sold from Khasra no 19/18 of his father in law, whereas, during cross examination in the present suit, the plaintiff deposed that land measuring 500 sq. yards is sold out of his Khasra no. 19/13/1 and the balance land is sold from Khasra no. 19/18 of Ram Niwas. The plaintiff failed to give any satisfactory answer to the question put to him that when his Page No. 44/60 father in law was owner of only 3250 sq. yards of land, how he can sell land more than under his ownership.
(h) The testimony of the plaintiff is contradictory in both the cross examinations as it is an established and admitted fact that Ram Niwas is owner of only 3 bigha-5 biswa land i.e. 3250 sq. yards( 1 bihga=20 biswa, 3 bigha=60 biswa+5 biswa=65 biswa, 1 biswa=50 sq.yds, hence, 65 X50= 3250 sq. yards) and out of 3250 sq. yards he already sold 2920 sq.yds to Rattan Singh, therefore, only 330 sq. yards left under Khasra no. 19/18 under the ownership of Ram Niwas and therefore, the remaining land of 750 sq. yards i.e. 15 biswa is sold out of Khasra no. 19/13/1 of the plaintiff to Smt. Shakuntla w/o Col. Dhayia vide registered sale deed dated 05.10.1989 executed jointly by plaintiff and his father in law. This fact also stands corroborated from the revenue record of Khatauni of village Badusarai of year 1987-88 relied upon by the plaintiff himself as Ex.PW1/2 and also the RTI application, wherein, it is specifically mentioned that ownership of 0-15 biswa (750 sq. yards) of land under Khasra no.19/13/1 stands transferred in the name of Smt. Shakuntla on the basis of sale deed executed by plaintiff in her favour.
(i) It is further admitted by the plaintiff that the persons to whom the land is sold through GPA, agreement to sell etc., their names has not been mutated in the revenue record and still in the Page No. 45/60 revenue record the name of the plaintiff is reflected.
(j) As already observed, land under Khasra no. 19/18 measuring 3250 sq. yards of Ram Niwas stands sold on 05.10.89 by two separate registered sale deeds of even date to Rattan Singh i.e land measuring 2920 sq. yards and balance 330 sq. yards to Smt. Shakuntla w/o Col Dhayia, therefore no land left under the ownership of Ram Niwas under Khasra no. 19/18 and further it also stands proved that remaining 750 sq. yards of land to Smt. Shakuntla was sold from kh. 19/13/1 of the plaintiff. Therefore, the plaintiff left with 3 bigha-05 biswa land under Khasra no. 19/13/1 i.e. 3250 sq. yd and 3 bigha land under Khasra no. 19/14 i.e. 3000 sq. yard and total 6 bigha -05 biswa i.e. 6250 sq. yd under both Khasra nos. ( * in the consolidation pass book of the plaintiff Ex. Pw-1/3, 6 bigha-5 biswa is shown to be under the ownership of plaintiff at the commencement of the consolidation proceedings)
(k) Now, out of 6 bigha-5 biswa land i.e. 6250 sq. yards, the plaintiff as per his own testimony sold the land to following persons as described in the chart.
S.no Date and Land Khasr Name of the Plot no. given in
mode of Sold in a No. purchaser Consolidation
Transaction sq. yd Proceeding
1. 19.05.88 496 19/13 Virender -----
GPA/AS Singh &
Page No. 46/60
sale Ravinder
Kumar
2. 31.10.90 300 19/13 Rohtas s/o 94
GPA/AS /1 Phool Singh
sale
3. 04.06.1994 380 19/13 Smt. Suresh 88
GPA/AS /1
sale
4. 18.09.1986 19/14 Smt. Ram 92
GPA/AS kaur
sale
5. 16.04.1987 500 19/14 Ranbir Singh 89
AS sale s/o sher
singh
6. 16.04.1987 500 19/14 Randhir 90
AS sale Singh s/o
Saroop
7. 20.06.2002 400 19/13 Angoori
AS sale /1 Devi
8. ------ 550 19/13 Surender 93
/1 (p) Kumar,
19/14 Balwan &
(D) Mange ram
TOTAL 4026
Sq.
yards
9. Alleged 1500 19/13 Mahender 97
Illegal /1 Singh &
possession others
10. Admittedly 1300 19/13 96 & 98
Rastaa /1
Total land 6826
sq.
yards
(l) In view of the chart prepared above, interestingly the plaintiff
Page No. 47/60
has sold 4026 square yards of land to different persons and 1300 sq. yards was left as passage in the colony, which the plaintiff himself shown in the site plan filed in the present suit as Ex. PW-1/8 and admittedly1500 sq. yards is already under the alleged illegal possession of Mahender Singh & ors and thus, a total land comes out to be 6826 sq. yards, while the plaintiff was in possession of 6250 sq. yards of land only, meaning thereby the plaintiff either sold land measuring 576 sq. yards in excess or the land under alleged illegal possession of Mahinder & others or under the rastaa is less than the claimed land, however, in either case the plaintiff is not in possession of any land under Khasra no. 19/13/1 and 19/14 before the effective commencement of Consolidation Proceedings in the year 2004.
(m) Therefore, the case of the plaintiff that the defendants trespassed into 50 sq. yards of land after consolidation proceedings is not made out.
(n) And it further establishes that the consolidation passbook heavily relied upon by the plaintiff only shows his title as the land is admittedly sold through GPA/SPA/AS sales and not his possession, reason being if it is so, the name of the persons to whom the plaintiff admittedly sold the land by way of GPA/SPA/AS sale should have been mentioned against the new plot/Khasra numbers in the consolidation passbook whereas on the other hand the possession of respective buyers or possessors is rightly reflected in the register karwai chakkbandi and admittedly the register karwai chakkbandi Page No. 48/60 attained finality once the plaintiff had withdrawn the revision petition filed before the Financial Commissioner.
70. If the plea of the plaintiff is believed that the defendants after execution of sale deed in favour of their father of land measuring 2920 sq. yards by Ram Niwas, never returned the GPA executed by his father in law as promised by them and illegally claiming the ownership of 1500 square yards under Khasra no. 19/13/1 of the plaintiff, admittedly neither the father in law of the plaintiff filed any suit for cancellation of the said GPA dated 18.09.1986 nor the plaintiff filed any suit for recovery of possession immediately against the defendants.
71. It is observed that the root cause of the entire controversy in the present case is the consolidation pass book issued by the consolidation officer to the plaintiff at the conclusion of the Consolidation proceedings, wherein the plaintiff is shown to be the owner of new Khasra no. 88 to 99, exhibited as Ex. PW1/3 and the plaintiff has filed 4 different suits including the present one to recover the possession on the basis of the said consolidation passbook.
72. On perusal of pass book the land in Khasra No. 19/13/1 and 19/14 is shown to be 6 bigha 5 biswa i.e. 6250 sq. yards and after the conclusion of consolidation proceedings the Khasra no. 19/13/1 and 19/14 is converted into Khasra no. 88 to 99 showing total land as 6 bigha 17 biswa i.e. 6850 sq. yards under the ownership of the plaintiff.
73. As already observed, except Smt. Shakuntla, the plaintiff sold Page No. 49/60 the entire land by converting into plots to different persons including the defendant by GPA sale and therefore, the names of the purchasers are not reflected in the revenue record and as such at the commencement of the consolidation proceedings after deducting the 15 biswa land sold to Smt. Shakuntla by way of sale deed, it is rightly shown that the land under the ownership of plaintiff was 6 bigha-5 biswa i.e. 6250 sq. yards, however, it is hard to believe and no plausible reason came forth before the Court during the course of arguments that how land measuring 6 bigha-17 biswa i.e. 6850 sq. yards is shown under the ownership of the plaintiff. Further no witness is produced from the revenue department to explain the increase in area of the land of the plaintiff after the conclusion of the consolidation proceedings in the pass book Ex PW1/3.
74. Hence, the consolidation proceedings are not properly conducted and therefore not reliable per se.
75. Another moot question before the Court is whether the entries in the name of plaintiff of new Khasra no. 88 to 99 only shows his ownership or it also reflects the possession of the plaintiff and this Court is of the considered view that the entry in the passbook only shows the ownership status of the plaintiff and not the possession for the following reasons:
(a) It already stands established from the testimony of the plaintiff himself that all the land stands sold to the purchasers except the land left for passage in the colony and alleged illegal occupation of the Page No. 50/60 Mahender Singh & his brothers.
(b) It is also an admitted fact that as the sale was done through GPA/SPA/AS transactions the name of the purchasers not reflected in the revenue record.
(c) However, as all the purchasers are in settled possession before the commencement of consolidation proceedings, therefore, their names should have also been found mentioned as possessors in the consolidation passbook.
76. Therefore, on the basis of above observations, his Court has no hesitation to observe that the consolidation passbook Ex. PW1/3, heavily relied upon by the plaintiff does not reflect the true picture on twin grounds that is First, there is no justification regarding increase of area of land after consolidation proceedings from 6250 sq. yards to 6850 sq. yards which is neither justifiable nor plausible and Second, non-mentioning of the name of the purchasers to whom the plaintiff already sold the land before the commencement of the proceedings as possessors in the consolidation passbook.
77. The plaintiff has tried to make out a case in his favour and pleaded that after the conclusion of the consolidation proceedings out of Khasra no. 88 to 99 (plot), he sold the plots bearing no. 89,90,92,93,95 and 99 to the respective buyers, whereas, from his own deposition it stands established that plots were already sold to the respective buyers before consolidation proceedings and plot numbers were given at the completion consolidation proceedings.
Page No. 51/6078. In totality of facts and observation as reproduced above, the plaintiff has miserably failed to prove that the defendants trespassed into land measuring 50 sq. yards in the year 2005 and additionally the plaintiff suppressed the material facts from this Court and intentionally drafted the pleadings in such a manner to bring the suit qua the relief of possession of 1500 sq. yards within the limitation period.
79. Accordingly, as the plaintiff miserably failed to prove the issue in affirmative, hence, in view of the detailed discussion made above, the issue in question is decided against the plaintiff and in favour of the defendants.
80. As the Issue no. 8 is decided against the plaintiff, the issue nos. 9,10,11 and 12 which are in the nature of consequential relief and are dependent upon the finding on issue no.8, therefore, the issue nos. 9,10,11 and 12 are also decided against the plaintiff and in favour of the defendants.
81. Coming to the remaining issues i.e. Issue no. 3,4,5,6 & 7, the onus to prove the above stated issues was on the defendants, even though, once the plaintiff failed to discharge the initial burden cast upon him in the affirmative, no necessity arises for this Court to give its finding on the above issues, however, in order to decide the entire controversy between the parties and prevent them from another round of litigation, this Court proceeds further to decide the remaining issues.
Page No. 52/6082. Issue no.3 - Whether the defendants are in possession of the suit property since or about 18.09.1986 on execution of GPA, Agreement etc. in their favour by Sh. Ram Niwas, for himself and as attorney of the plaintiff?... OPD
83. The defendants in their defence taken the specific stand that they are in possession of land measuring 1500 sq. yards on the basis of GPA, agreement to sell, receipt and affidavit etc all dated 18.09.1986 executed by Ram Niwas, the father in law of the plaintiff and since then they are in possession of the land measuring 1500 sq.yds. It is further the contention of the defendant that plaintiff also execution a GPA in favour of Ram Niwas and authorized him to execute the documents of the plots carved out in the land measuring khasra No. 19/13/1 19/14 and 19/18 at village Badusarai and the plaintiff denied the same in his replication.
84. It is apposite to mention that the GPA and affidavit dated 18.09.1986 executed by Ram Niwas in favour of the defendants was put to the plaintiff during his cross examination and the plaintiff admitted that the GPA and affidavit were executed by his father in law namely, Ram Niwas. Both the documents were also put to the defendant No. 3 namely, Ishwar Singh who entered in the witness box as DW-3and same are exhibited as Ex DW3/PX-1 and Ex DW3/PX-2.
85. Apart from that the defendants in their defence evidence has failed to bring on record the alleged agreement to sell, possession Page No. 53/60 letter, receipt and even the alleged GPA executed by the plaintiff in favour of his father in law Ram Niwas authorizing him to execute the documents of plots carved out in the land bearing khasra No. 19/13/1, 19/14 and 19/18 as claimed by the defendants. Even it is also relevant to observe that neither in the written statement nor in evidence affidavit Ex DW3/A, the defendants have disclosed the consideration amount for which they have purchased the land measuring 1500 sq. yards from the father in law of the plaintiff.
86. In his entire cross examination DW-3 failed to prove that any agreement to sell, possession letter, receipt etc has been ever executed by the father in law of the plaintiff. His only stand is that all the original documents were filed in the previous suit bearing No. 460/1995 and that is why he is not in possession of the copies of the same. The defendants should have brought the certified copy of those documents from the previous suit, to substantiate their claim and in absence of bringing on record any such document raises an adverse inference against the defendants.
87. On perusal of the GPA and affidavit dated 18.09.1986 there is no clause which specifically provides that the possession of land measuring1500 sq.yds under Khasra no. 19/18 is handed over to the defendants.The GPA only provides that the executant is owner of land measuring 1500 sq. yards under khasra No.19/18 and he authorize the defendants to deal with the property as they like including the power to sell/ alienate the land as per their wish. The affidavit dated Page No. 54/60 18.09.1986, only provides that the GPA dated 18.09.1986 is irrevocable.
88. Therefore, the plea of the defendants that the father in law of the plaintiff sold the land measuring 1500 sq. yards for himself and on behalf of the plaintiff on the basis of GPA executed by the plaintiff in favour of his father in law is not sustainable. It is also not sustainable that the defendants are in possession of suit property on the basis of GPA and affidavit dated 18.09.1986 in absence of any specific clause of possession in the GPA and affidavit.
89. Therefore, it cannot be held that the defendants are in possession of land measuring 1500 sq.yds on the basis of GPA, agreement to sell, affidavit, possession, receipt all dated 18.9.1986 rather they are in forceful possession of land measuring 1500 sq. yards comprising in Khasra no.19/13/1 under the garb of GPA and affidavit dated 18.09.1986 executed by the father in law of the plaintiff comprising Khasra no. 19/18.
90. Accordingly, the issue no. 3 is decided against the defendants and in favour of the plaintiff.
91. Issue no. 4.- Whether the defendants have become owners of the suit property by way of adverse possession? ..OPD
92. On the basis of finding of this Court on Issue no.8 and Issue no.3, there is no iota of doubt that the defendants are in forceful possession of suit property on the basis of GPA and affidavit dated Page No. 55/60 18.09.1986 executed by the father in law of the plaintiff of land measuring 1500 sq. yards under Khasra no. 19/18 and it is also established that the fact of execution of GPA. Affidavit dated 18.09.1986 was in the knowledge of the plaintiff since the date of execution of GPA, affidavit dated 18.09.1986 and it also stands established that the plaintiff filed the present suit for possession only after the expiry of limitation period as envisaged under Article 65 of the limitation Act, 1963 and thus by virtue of Section 27 of the Limitation Act, 1963, not only the remedy but also the right of the plaintiff to seek possession stands extinguished, therefore, as a necessary corollary, once it stands established that the defendants are in open, continuous and peaceful possession of the suit property since 18.09.1986 (date of execution of GPA & affidavit), or 02.01.1991 the date when the Civil suit no. 460/1995 was filed and the plaintiff himself shown the defendants in possession of 1500 sq. yards of land in the site plan and by all means since 21.03.1994 when the Ld. Sub Judge, New Delhi specifically held that the defendants are in possession of land measuring 1500 sq. yards, therefore, the defendants have crystallized their possession into ownership by way of adverse possession as all the three essentials i.e. nec-vi, nec-calm and nec- precario, stands fulfilled in the present case.
93. The legal position as regards the acquisition of title to land by adverse possession has been succinctly stated by the Judicial Committee of the Privy Council in Perry vs. Clissold (1907) AC 73:
Page No. 56/60"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title."
94. This statement of law has been accepted by the Hon'ble Supreme Court of India in the case of Nair Service Society Ltd. vs. K.C. Alexander (AIR 1968 SC 1165) and observed:
"The cases of the Judicial Committee are not binding on us. But we approve of the dictum in 1907 AC 73. No subsequent case has been brought to our notice departing from that view. No doubt, a great controversy exists over the two cases of (1849) 13 QB 945 and (1865) 1 QB 1. But it must be taken to be finally resolved by 1907 AC 73. A similar view has been consistently taken in India and the amendment of the Indian Limitation Act has given approval to the proposition accepted in 1907 AC 73 and may be taken to be declaratory of the law in India."
95. Therefore, since not only the right of the plaintiff but also the remedy to seek the relief of possession by virtue of Section 27 of the Page No. 57/60 Limitation Act, 1963 stands extinguished and it stands established that the defendants are in continuous, open and hostile possession of the suit property, which is specifically in the knowledge of the plaintiff, the issue is decided in favour of the defendants and against the plaintiff and the defendants have become the owner of the suit property by way of adverse possession.
96. Issue no.5. Whether the jurisdiction of Civil Court is barred U/s 44 The East Punjab Holdings (Prevention & Consolidation of Fragmentation), Act 1948 in respect of the subject matter of suit?...OPD
97. Onus to prove the present issue was in the defendants and as no evidence is lead by the defendants, the issue is decided against the defendants and in favour of the plaintiff.
98. Issue no 6:- Whether the suit is barred by the provisions of Order 2 Rule 2 CPC? ... OPD
99. Onus to prove the present issue was also on the defendants and neither any evidence is lead by the defendants not pressed during arguments, accordingly, the issue is decided against the defendants and in favour of the plaintiff.
100. Issue no.7:-.Whether the defendants have acquired any right in the suit property on being treated as scheme kabiz of the suit Page No. 58/60 property, during Consolidation Proceedings? ...OPD
101. The onus to prove the issue was on the defendants and as per the halqa patwari report DW-5/A(colly) and the reply to the RTI application relied upon by the plaintiff as Mark 'B', the defendants are recorded as possessors only on the basis of their previous possession and not as per any resolution to record them as scheme kabiz, accordingly, the issue is decided in against the defendants and in favour of the plaintiff.
Relief:
102. In view of the findings of this Court on Issue no.8, the present suit of the plaintiff for relief of possession is hereby dismissed alongwith the costs of the suit and on the basis of finding of this court on issue No. 4, the defendants are declared to be the owners of the suit property by way of adverse possession.
103. For suppression of material facts from this Court, the plaintiff is further saddled with Costs of Rs.20,000/- to be deposited with Delhi Child Welfare Fund, A/c No. 30269984245, State Bank of India, IP Estate, New Delhi.
104. Decree sheet be drawn accordingly.
105. File be consigned to record room after due compliance, as per rules.
SACHIN Digitally signed by
SACHIN JAIN
JAIN Date: 2022.05.13
17:00:02 +0530
Pronounced in the open Court (Sachin Jain)
on 13.05.2022 Addl. District Judge-02
South West District
Page No. 59/60
Dwarka Courts Complex, Delhi
Page No. 60/60