Delhi District Court
Bijender Singh vs Bharat Singh on 27 February, 2025
IN THE COURT OF MS. MANU VEDWAN,
DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 402/2016
CNR No. DLNE01-002757-2016
Late Bijender Singh (since deceased)
Through legal representatives:-
1. Beena
W/o Late Bijender Singh
R/o H. No. 313, Rana Gali,
Village Karkar Modal,
Sahibabad, Ghaziabad, Uttar Pradesh.
2. Nisha
D/o Late Bijender Singh
W/o Sh. Bikram Singh
R/o 593, Village Bhondsi,
Gurugram, Haryana.
3. Surender
S/o Late Bijender Singh
R/o H. No. 53, Rana Gali,
Village Karkar Modal,
Sahibabad, Ghaziabad, Uttar Pradesh.
4. Jitender
S/o Late Bijender Singh
R/o H. No. 313, Rana Gali,
Village Karkar Modal,
Sahibabad, Ghaziabad, Uttar Pradesh. .....Plaintiffs
Versus
1. Bharat Singh
S/o Late Budh Singh
R/o E-1, Gali no. 6, Sadatpur Extension,
Delhi.
2. Karnail Singh
CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 1 of 23
S/o Late Budh Singh
3. Laxmi
W/o Sh. Karnail Singh
Both residents of near Mangal Bazar,
Village Chauhan Patti, Sabhapur,
Delhi. .....Defendants
Date of Institution : 19.07.2016
Date of Reserving Judgment : 25.02.2025
Date of Judgment : 27.02.2025
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendants seeking the decree of possession alongwith decree of permanent injunction.
2. Plaint 2(a). Brief facts as stated in the plaint, are that Sh. Dhanvir @ Dharamvir was the father of plaintiff and Sh. Man Singh, Bhan Singh, Sh. Duli Chand and Ranvir were the uncles (Chacha) of the plaintiff. It is stated that the father and uncles (Chacha) of plaintiff had purchased an agriculture land bearing Khasra number 156, measuring area 6 bigha 9 biswa, situated at Sabhapur, Chauhan Patti, Shahdara, Delhi, on 11.04.1972, from Sh. Mahavir Prasad by virtue of sale deed, dated 11.04.1972, which was duly registered before the concerned Sub Registrar, Delhi. It is further stated that after purchasing the said property, one of the uncles of plaintiff, namely Sh. Man Singh, who was unmarried died intestate thus, the share of Late Man Singh was equally divided amongst the plaintiff's father and his other uncles (Chacha). It is further stated that the father of plaintiff, CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 2 of 23 Late Dhanvir Singh therefore became the owner of one fourth (1/4 th) portion of the aforesaid property. It is further stated that the father of plaintiff was having two sons that is plaintiff and Late Vijay Singh and the father of plaintiff had also expired intestate, on 10.07.1999. It is further stated that after the death of father of plaintiff, plaintiff became the owner of his share in aforesaid the property (hereinafter, referred to as suit property). It is further stated that the plaintiff was also having the other piece of agriculture land in the same locality and for looking after the suit property as well as his other agriculture land, plaintiff had constructed the portion measuring 180 square yards of the suit property before ten/twelve years ago, where, plaintiff also used to reside, but, for few days. It is further stated that due to personal problems, plaintiff had to shift to Ghaziabad, Uttar Pradesh with his family members and he started residing there.
2(b). It is further stated that later on, it came to knowledge of plaintiff from the reliable sources somewhere in January 2016, that the defendants in collusion with each other prepared the forged and fabricated documents of the suit property and they also forcefully entered in the suit property on the basis of those documents. It is further stated that the defendants had filed a false and frivolous suit before the Court of the then Learned Additional District Judge, Karkardooma Courts qua the suit property. It is further stated that when plaintiff went to the suit property and confronted the defendants for the unauthorized occupation of the same, they started misbehaving with the plaintiff and abused him in filthy language. It is further stated that the plaintiff is in apprehension that the defendants can do any wrong with the plaintiff and that they want to grab the suit property from the plaintiff. It is further stated that with respect to remaining agriculture land, plaintiff and his cousin brother had filed a suit/complaint before the Revenue Court/Sub Divisional Magistrate, Karawal Nagar, CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 3 of 23 Delhi. It is further stated that the plaintiff had immediately made a call to the police at 100 number and told them about the illegal act of defendants, but, the police officials did not take any action. It is further stated that the cousin brother of plaintiff, namely, Sh. Gopal Singh had also filed a written complaint to the concerned Deputy Commissioner of Police and Station House Office, Police Station Sonia Vihar, on 17.05.2016, but, the police officials did not take any action against the defendants, till date. It is further stated that the plaintiff has right to get vacated the suit property that is premises bearing Khasra number 156, measuring area 180 square yards, Sabhapur, Chauhan Patti, Shahdara, Delhi from the defendants. Hence, the present suit has been filed by the plaintiff against the defendants thereby seeking the decree of possession alongwith the decree of permanent injunction.
3. Written statement 3(a). On the other hand, in the separate written statement, filed by defendant number 1, apart from denying the contentions of plaint, it is stated that the plaintiff had filed a wrong and incorrect site plan as the plaintiff had not shown the exact area/ location of property against whom the relief was sought. Neither any specific dimension nor area was mentioned in the site plan. It is further stated that the suit of plaintiff is also liable to be dismissed as the defendants and his predecessors were in the occupation and physical possession of the property in question, since the year 1947, that is much prior to the alleged possession of the plaintiff's predecessor. It is further stated that the defendant number 1 has been in possession of the land and the said land came in the share of late father of defendant number 1 from his father, the same was accordingly divided in three equal shares and all were in their respective possession. It is further stated that the defendant number 2 in order to grab the share of defendant CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 4 of 23 number 1 started creating hindrance and later on, he encroached the property. It is further stated that even the plaintiff had filed the present suit at the instigation of defendant number 2 and 3 in order to pressurize the defendant number 1. It is further stated that one person, namely, Sh. Gopal, plaintiff therein, had filed a Civil Suit, qua the area of 1200 square yards, in which he had made the defendant number 1, as party. It is further stated that the defendant number 1 was in occupation and possession of land measuring 60 square yards which was received to him by virtue of legal heirs of Late Arjun Singh. It is further stated that the grandfather of defendant number 1, Late Arjun Singh, had received a land measuring 1.25 bigha approximately from the actual bhumidar Sh. Ram Rikar as Gift-cum- Will in March 1947, situated in Khasra number 156, Village Chauhan Patti, Delhi.
3(b). It is further stated that since then he was in physical and continuous possession of the land. It is further stated that the relevant documents were executed by Late Ram Rikar in favour of Late Arjun Singh. Late Arjun Singh had divided the said land amongst his six sons and defendant number 1 being son of elder son of Late Arjun Singh, namely, Sh. Budh Singh had received his 1/8th share that is area measuring 60 square yards. It is further stated that the plaintiff was never in possession of the land measuring 180 square yards which came in the share of Late Budh Singh being son of Late Arjun Singh. It is further stated that the legal representatives of Late Budh Singh had divided 180 square yards in three equal shares and the defendant number 1 had received 60 square yards as 1/3rd share of Late Budh Singh. It is stated that other two sons namely, Karnail Singh and Balraj had mutually transferred their share with each other, while, Karnail Singh had taken the share of Sh. Balraj measuring 60 square yards by leaving his share in the property situated in Khasra number 157. It is further stated that Sh. Karnail Singh and his wife Smt. CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 5 of 23 Laxmi had constructed their house approximately in the year 2012 on the area of 120 square yards. However, Smt. Laxmi and Sh. Karnail Singh created hindrance in the share of defendant number 1 and compelled him to file the suit against them. During the pendency of the suit, they had also encroached the plot of defendant number 1 measuring 60 square yards for which the defendant number 1 had filed a suit seeking the relief of possession. It is therefore requested that the suit of plaintiff be dismissed. 3(c). Common written statement was also filed on behalf of defendant number 2 and 3 in which once again, apart from negating the contentions, raised by plaintiff in his plaint, it is stated that the present suit is not maintainable since the property ad-measuring 180 square yards situated at Khasra number 156, Village Chauhan Patti, Sabhapur, Delhi was purchased by defendant number 3 from Sh. Tara Singh in March 2000 for consideration amount of rupees 54,000/-. It is further stated that Sh. Tara Singh had purchased the said property from Sh. Khem Chand and Man Singh earlier to that. It is further stated that the defendant number 2 and 3 are now living alongwith their family members in the suit property since the date of it's purchase. Earlier, Sh. Tara Singh was in possession of the said property. It is further stated that Sh. Man Singh had sold out 180 square yards plot out of Khasra number 156, Village Sabhapur, Shahdara, Delhi to Sh. Tara Singh during his lifetime which was sold to defendant number 3.
3(d). It is further stated that the father of plaintiff might have been the owner of 1/4th portion of Khasra number 156 after deletion of 180 square yards out of the said area of Khasra number which Late Man Singh had sold out to Sh. Tara Singh during his lifetime. It is specifically denied that the plaintiff became the owner of Khasra number 156 including the suit property. It is further stated that the plaintiff and his brothers might have become the owners of portion of property described as left over (divided) CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 6 of 23 by 4 of his uncles and father and (divided again) by 2 (among two brothers of plaintiff). It is further stated that the alleged 180 square yards of the aforesaid land was admittedly never in possession of plaintiff because 180 square yards was already sold by Late Man Singh during his lifetime. It is further stated that the defendant number 3 got misplaced the documents somewhere in April 2012 and published these news in papers. It is further stated that the plaintiff used to regularly visit his agriculture property lying nearby since many years. It is further stated that the plaintiff never had any objection of her possession of the suit property, but, plaintiff developed the intention of grabbing the suit property only after knowing that the defendants had misplaced the documents.
4. Rejoinder Separate rejoinders to the written statements of defendant number 1 as well as defendant number 2 and 3 were filed by the plaintiff which is, essentially, a reiteration of the averments in the plaint and denial of contentions in the written statements.
5. Issues On the basis of pleadings, the following issues were framed:-
(i) Whether the plaintiff is entitled for decree of possession as prayed in the suit? OPP
(ii) Whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit? OPP
(iii) Relief.
6. Plaintiff's evidence 6(a). Plaintiff has led his piece of evidence. Plaintiff Sh. Bijender Singh has got examined himself as PW1. He reiterated the facts as are CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 7 of 23 mentioned by him in his plaint. Thereafter, he tendered his evidence by way of affidavit which is Ex.PW1/1 and relied upon the documents that is site plan as Ex.PW1/A, copy of sale deed running into four pages as Mark A and Khatoni of the property in question running into two pages as Mark B. PW1 was cross examined at length by Learned Counsel for defendant number 1. During the course of his cross examination, PW1 submitted that he cannot tell whether Sh. Ganwa Pandit had also handed over the possession of the property measuring 15 bigha in khasra number 156 to Sh. Arjun Singh in the year 1947. PW1 had also denied the suggestion put to him by Learned Counsel for defendant number 1 that Budh Singh had inherited the suit property being the son of Arjun Singh. 6(b). Sh. Rajender Singh, Record Attendant, Government of National Capital Territory of Delhi, Department of Delhi Archives was examined as PW2. PW2 produced the summoned record of sale deed, dated 11.04.1972 bearing registration number 4738, volume number 562, page 176-177, registered on 17.04.1972, executed between Mahavir Prasad (seller) and purchasers Man Singh, Bhaan Singh, Duli Chand, Dharamvir Singh and Ranbir Singh, all sons of Zile Singh, for land measuring 19 bigha 8 biswa, falls in Khasra number 123 (4-0) 65 (2-14) 84 (1-8) 218 (0-13) 241 (2-17) 247 (0-9) 270 (2-15) 361 (2-2) (10-0), 156 (6-9), 231 (2-19), situated at village Sabey Pur, Illaqa Shahdara, Delhi. Photocopy of sale deed is Ex.PW2/A (OSR). PW2 was cross examined by Learned counsel for defendant number 2 and 3 as well as Learned counsel for defendant number 1.
6(c). Sh. Giri Raj Singh, Patwari from the office of Sub Divisional Magistrate, Karawal Nagar, Delhi was examined as PW3. PW3 produced the summoned record of khatoni of the year 1985-86 of Khasra number 156, village Sabhapur, Chauhan Patti, Delhi. PW3 stated that as per their record, Bhan Singh, Duli Chand, Dharamvir and Ranvir, all sons of Sh. CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 8 of 23 Jile Singh were recorded as the Khatedar. PW3 also stated that Dharamvir and his son Vijender Singh and Vijay Singh were co-owners of the Khasra number 156. Photocopy of same is Ex.PW3/A (OSR). PW3 was cross examined by Learned Counsel for defendant number 1. During the course of his cross examination, PW3 submitted that the names of Vijender Singh and Vijay Singh, both sons of Late Dharamvir Singh were incorporated in their record on 20.08.1999. PW3 also submitted that he did not know about the name of the Khatedar in the year 1947 or in the year 1952.
Defendants' evidence 6(d). After closing of plaintiffs' evidence, defendants have led their piece of evidence. Defendant number 1 Sh. Bharat Singh in order to prove his case stepped into the witness box as DW1. DW1 has reiterated the same facts as are mentioned by him in his written statement. Thereafter, he tendered his evidence by way of affidavit which is Ex.DW1/1 and relied upon the document that is certified copy of document as Ex.DW1/A. Examination in chief of DW1 had left to be completed.
6(e). Sh. Gaje Singh was examined as D1W2. D1W2 in his examination in chief deposed that he is one of the legal heirs of Late Arjun Singh, who was grandfather of defendant number 1 and 2. D1W2 further deposed that he is younger son of Late Arjun Singh, who acquired the land measuring 1.25 bigha situated in Khasra number 156, Village Chauhan Patti, Delhi from one Ram Rikar son of Sh. Ganwa Pandit approximately in March, 1947. D1W2 further deposed that Late Arjun Singh had six sons, namely, Budh Singh, Dhum Singh, Omparkash Singh, Shyam Ji, Sube Singh and D1W2. D1W2 further stated that Late Arjun Singh had distributed his land equally amongst his six sons after deducting the passage and each son had got 180 square yards land in their respective shares in Khasra number 156, village Chauhan Patti, Delhi. D1W2 further stated that Late Arjun Singh had also executed General Power of Attorney in favour of his sons qua CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 9 of 23 their respective shares. It is further stated by D1W2 that Sh. Budh Singh was elder brother of D1W2, who received 180 square yards in his share from his father in Khasra number 156, village Chauhan Patti, Delhi. Late Budh Singh who had four sons, namely, Karnail Singh, Jarnail Singh, Balraj and Bharat Singh, out of whom Jarnail Singh had expired in the lifetime of Sh. Budh Singh. It is deposed that share of Late Budh Singh was accordingly, divided into three equal shares and all the three sons who were alive had got 60 square yards each in Khasra number 156, Village Chauhan Patti, Delhi.
D1W2 further stated that Sh. Karnail Singh and Sh. Balraj, sons of Late Budh Singh (elder brothers of D1W2) had mutually agreed to exchange their shares, wherein, Karnail Singh had taken the share of Sh. Balraj measuring 60 square yards situated in Khasra number 156 and relinquished his share measuring 50 square yards falling in Khasra number 167, village Chuahan Patti, Delhi, wherein previously Sh. Balraj Singh and Karnail Singh were residing. It is further deposed that Sh. Balraj had got constructed his residence in the area of 120 square yards situated in Khasra number 156, village Chauhan Patti, Delhi and the portion measuring 60 square yards was lying vacant after boundary of 4 feet which was later on encroached by Sh. Karnail Singh and the defendant number 1 and 2 entered in multiplicity of litigation. The partition between the legal heirs of Late Budh Singh was also witnessed by D1W2. D1W2 further stated that the plaintiff and his companions had filed litigation even against the D1W2. It is further stated by D1W2 that the plaintiffs have no right, title and interest in the suit land measuring 180 square yards falling in Khasra number 156, village Chauhan Patti, Delhi. It is further stated by D1W2 that the defendant number 1 and 2 are the owner of 180 square yards. Thereafter, D1W2 tendered his evidence by way of affidavit which is Ex.D1W2/A and relied upon the following documents that is original copy CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 10 of 23 of Gift-cum-deed, dated 12.03.1947 as Ex.D1W2/1, partition done by Late Arjun Singh as Ex.D1W2/2, original General Power of Attorney executed by Late Arjun Singh in favour of his sons as Ex.D1W2/3, certified copy of order passed by Learned ACMM, North East, dated 18.03.2019 as Ex.D1W2/4, certified copy of order on revision passed by the Hon'ble Sessions Court as Ex.D1W2/5, original electricity bills (2 bills) as Ex.D1W2/6 (colly), original rent agreement, dated 12.05.2015 as Ex.D1W2/7 and certified copy of order passed by the then Senior Civil Judge, North East, dated 02.06.2016 as Ex.D1W2/8. D1W2 was cross examined by Learned Counsel for plaintiff.
6(f). Sh. Giri Raj Singh, Patwari from the office of Sub Divisional Magistrate, Karawal Nagar, Delhi was examined as DW2. DW2 produced the file bearing number 109/84/RA/SDM Karawal Nagar wherein Bijender Singh S/o Late Dhanvir Singh, Gayatri W/o Vijay Singh, Subey Singh S/o Late Bhan Singh, Sanjay Kumar S/o Late Bhan Singh, Gopal Singh S/o Late Bhan Singh, Smt. Neelam W/o Late Devender, Smt. Poonam W/o Late Duli Chand were the applicants. DW2 deposed that the applicants had filed a petition under section 84 of Delhi Land Reforms Act, 1954 seeking relief to direct the respondents that is Karnail Singh, Bharat Singh, Balraj, all three are sons of Late Budh Singh, Sh. Bhum Singh, Sh. Om Prakash, Sh. Gaje Singh, Sh. Sube Singh and Sh. Shyam Singh to remove illegal constructions and hand over the peaceful vacant possession of the property measuring 1200 square yards, part of agricultural land measuring 6 bighas 9 biswa bearing Khasra number 156, situated in village Sabhapur, Shahdara, near Chauhan Patti, Delhi. Copy of petition is Ex.DW2/A and copy of site plan filed with the plaint is Ex.DW2/B. DW2 was cross examined at length by Learned Counsel for plaintiff.
6(g). Defendant number 2 Sh. Karnail Singh was examined as DW3. DW3 has reiterated the same facts as are mentioned by him in his written CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 11 of 23 statement. Thereafter, he tendered his evidence by way of affidavit which is Ex.DW3/A and relied upon the documents that is certified copy of document as aadhar card of DW3 as Ex.DW3/1 (OSR), voters ID card s Ex.DW3/2 (OSR), NCR for lost of documents of suit property as Ex.DW3/3 (OSR), certified copy of judgment passed by Court of Ms. Suchi Laler, the then Learned Administrative Civil Judge, North East, Karkardooma Courts as Ex.DW3/4, certified copy of judgment passed by Sh. Ritesh Singh, Learned Additional District Judge, North East, Karkardooma Courts as Ex.DW3/5, copy of judgment of Sub Divisional Magistrate Court, Karawal Nagar as Ex.DW3/6 (OSR), copy of report filed by Lekhpal in respect of suit property as Ex.DW3/7 (OSR) (colly). DW3 was cross examined at length by Learned Counsel for plaintiff and during this cross examination he had submitted that he is the owner of the property which was purchased by him by Tara Singh in the year 2000. 6(h). Inadvertently, defendant number 3, Smt. Laxmi was also got examined as DW3. To avoid any confusion, her evidence be read by her name that is the evidence of Smt. Laxmi. DW3/Smt. Laxmi has reiterated the same facts as are mentioned by her in her written statement. Thereafter, she tendered her evidence by way of affidavit which is Ex.DW3/A and relied upon the documents that is certified copy of document as copy of Aadhar card as Ex.DW3/1 (OSR), copy of voter ID card as Ex.DW3/2 (OSR), copy of daily newspaper, namely, Rashtriya Sahara published on 05.06.2013 s Ex.DW3/3 (OSR), copy of electricity bill as Ex.DW3/4 (OSR), site plan of the suit property as Ex.DW3/5 and the photographs of the suit property as Mark A. During the course of her cross examination, Smt. Laxmi submitted that documents of the suit property were lost, the report regarding the same was published in the newspaper and now the plaintiff is taking undue advantage of the same.
CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 12 of 23
7. Arguments I have heard the arguments advanced on behalf of parties and perused the case file carefully.
7(a). Written submissions on behalf of plaintiff filed in which apart from reiterating the contents of plaint alongwith the testimonies of witnesses, it is stated that the grandfather of the legal representatives of plaintiff Late Dharamvir and his grand uncles Late Man Singh, Late Bhan Singh, Late Duli Chand and Late Ranvir Singh had purchased the suit property bearing Khasra number 156 measuring 6 bigha 9 biswa situated at Sabhapur, Chauhan Patti, Shahdara, Delhi from Late Mahavir Prasad by virtue of sale deed, dated 11.04.1972 It is further stated that after purchasing of the suit property, Late Man Singh died intestate leaving behind no legal heirs and his property got distributed equally among the remaining owners of the property that is legal representatives of plaintiff as well as his uncles. It is further stated that the plaintiff got recorded the testimony of the Record Attendant, Department of Delhi Archives, who has deposed that the sale deed, dated 11.04.1972, executed between Mahavir Prasad and purchasers Man Singh, Bhan Singh, Duli Chand, Dharamvir Singh and Ranvir Singh. It is further stated that the grandfather of the legal representatives of plaintiff has two sons that is the plaintiff and Sh. Vijay Singh. It is further stated that the plaintiff had also got examined Patwari from the office of Sub Divisional Magistrate, Karawal Nagar as PW3 who has brought the summoned record of Khatuni for the year 1985-86, Khasra number 156, Village Sabhapur, Delhi-94. As per the record, Dharamvir Singh and his sons Bijender Singh and Vijay Singh are co-owners of Khasra number 156. It is further stated that though the defendant number 1 had claimed that he had inherited the suit property from his father whereas defendant number 2 and 3 had stated in their written statement that they had purchased the suit property from Sh. Tara Singh. It is further stated that both the statements CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 13 of 23 are contradictory with each other and made just for misleading the Court. It is further stated that Ex.D1W2/1 is a forged document. It is further stated that the plaintiff is the original owner of the suit property and defendants have forcefully entered in the suit property just to grab the same. 7(b). Written submissions have also been filed on behalf of defendant number 1 in which apart from reiterating the contents of plaint, written statement and testimonies of the witnesses, it is stated that the plaintiff had filed two litigations before the different Courts showing the same site plan which is not possible. It is further stated that the present suit was filed by the plaintiff for seeking the possession of 180 square yards of the land, while, the other suit filed by the plaintiff and his companions for the area of 1200 square yards. It is further stated that the plaintiff's companions had filed a petition under section 84 of the Land Reforms Act which was dismissed by the revenue authority. It is also stated that the plaintiff had also filed the criminal complaint regarding the encroachment of the property against the defendants and other legal heirs of Late Arjun Singh which was also dismissed. It is further stated that first of all, plaintiff must prove that how he had purchased the land and exactly what area was in his possession. It is further stated that the defendants' grandfather late Arjun Singh got the land in question in gift deed executed by Late Ram Riker S/o Late Ganwa Pandit, on 12.03.1947, much before the execution of alleged sale deed relied upon by the plaintiff. It is further stated that section 90 of the Indian Evidence Act speaks about raising the presumption in favour of document which is more than 30 year old. It is further stated that the plaintiff himself admitted that he was never in possession of the suit property. It is further stated that Late Arjun Singh had divided the total land area, measuring 1200 square yards, in between his six sons and all of them got 180 square yards, accordingly. Each of the defendants got 60 square yards of the property though the dispute had arisen between them. It CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 14 of 23 is stated that the plaintiff is now taking the undue advantage of the dispute. It is stated that the defendant number 1 is the owner of 60 square yards of the property.
7(c). Separate written submissions have also been filed in point-wise form by the defendant number 2 and 3 in which date-wise sequence of events including the testimonies of witnesses have been recorded by the defendant number 2 and 3. It is stated in the written submissions that 180 square yards property was purchased from Sh. Tara Singh S/o Sh. Roshan Singh, who was in peaceful possession of the suit property. It is also stated that Tara Singh had purchased the suit property from Man Singh, one of the uncles of the petitioners during his lifetime. Though, the documents of the property got misplaced and Non Cognizable Report, dated 28.05.2013, was lodged in that regard. It is stated that the plaintiff is now taking the undue advantage of the same. Thereafter, testimonies of defendants' witnesses including the documents produced by them are also discussed. It is stated that the plaintiff just wanted to grab the suit property by making false allegations. It is also stated that the exact site plan is Ex.DW3/5. It is stated that the plaintiff had not provided any record/bills for purchasing of building material for the construction of the alleged house on the property in question. It is also stated that Late Man Singh had donated 1000 square yards of his land for building of temple and other 300 square yards for building gaon ke devta. It is further stated that the entry in revenue record cannot form the basis for the declaration of the title. Thereafter, defendants have relied upon the following judgments titled as AIR 1997 SC 2181 State of HP v. Keshav Ram & Ors., AIR 2001 Hauhati 181 RK.
Madhuryyalat Singh & Anr. v. Takhellal Bano Abung Singh & Ors,, AIR 2003 SC 1805 Chief Conservator Forest Govt. of AP v. Collector & Ors. and AIR (37) 1950 Patna 359 Madhusudan Lal v. Shailendra Kishore. All these judgments have been perused very carefully vis-a-vis facts of the CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 15 of 23 case.
8. Reasons and analysis/finding After recording the gist of evidence led by both the parties, let me record the findings on each issue.
8(a). Issue number 1, that is, whether the plaintiff is entitled for decree of possession as prayed in the suit? and Issue number 2, that is, whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit? The onus to prove both these issues is upon the plaintiff. Both these issues are taken up together, being interconnected and having bearing upon each other.
First of all, it seems necessary that the aspect of burden of proof/relevancy of the evidence in the civil proceedings needs to be analyzed. In Halsbury, volume 17, page 11, it is observed that there are at least two distinct senses in which burden of proof is used and clarity over which sense is relevant at any given time is essential. In Phipson on Evidence, 13th edition, page 44, paragraph 4-03, it is observed that the phrase burden of proof has three meanings, (1) the persuasive burden, the burden of proof as a matter of law and pleading the burden of establishing a case, whether by preponderance of evidence or beyond a reasonable doubt, (2) The evidential burden, the burden of proof in the sense of adducing evidence and (3) the burden of establishing the admissibility of evidence. The legal burden is the burden of proof which remains constant throughout a trial. The incidence of the burden on different issues may lie in different places, and issues may rise or fall according to the facts proved, but on analysis of issue the legal burden will not change it is the burden of establishing the facts and contentions which will support a party's case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The incidence of this burden is usually clear from the pleadings, it usually being incumbent upon the CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 16 of 23 plaintiff to prove what he contends. The evidential burden, however, may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; this burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be, was adduced by either side.
8(b). With respect to the Indian Evidence Act, as per, Section 101 of the Act, burden of proof of any fact lies on the person claiming or assenting that fact. Section 102 of the Act also says that the burden of proof lies on the person, who would fail, if no evidence was given at either side. Until, such burden is discharged the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. The burden of proof is of importance where by reason of not discharging the burden which was put upon it, a party must eventually fail. The initial burden of proving a prima facie case in his favour is cast on the plaintiff, when he gives such evidence as will support a prima facie case, onus shifts on the defendants. A party has to plead the case and produce / adduce sufficient evidence to substantiate his submissions made in the plaint and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. Reliance is placed upon Life Insurance Corporation of India v Ram Pal Singh Bisen, (2010) 4 SCC 491, Ram Bhajan v Abdul Rahman, AIR 1997 AII 17, Rajasthan State Road Transport Corporation v Bajrang Lal, (2014) 4 SCC 693. In the instant cases, burden of proof qua the agitated facts falls upon the plaintiff/legal representatives of plainitff as it is they who claim possession of suit property from the defendants. In such a suit plaintiffs have to create a high degree of probability so as to shift the onus on the defendants. At the same time, it needs to be understood that in civil case a mere preponderance of probability due regard being had to the burden of proof must be a sufficient basis of decision. So, also there may CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 17 of 23 be degrees of probability with in the higher domain of probability. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. Thus, burden of proof lies upon the plaintiff and it is he who has to prove the fact and it never shifts, while the onus shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. Reliance is placed upon A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136 and R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr, (2003) 8 SCC 752.
8(c). Further, here bit of partition aspect must also be discussed as admittedly, the suit property is part of jointly purchased property allegedly by plaintiff's father and father's other brothers. The expression "partition" under the Hindu law may comprehend, as pointed out by Lord Westbury in Appovier vs. Rama Subbaayyan, 11 Moo. Ind. App. 75 at p. 90 (P.C.) the division of title and division of property. A physical division of the family property may be brought about either by a suit for partition,or in pursuance of an agreement between the members dividing the property. The division of right likewise may be a matter of agreement between the parties. The members of an undivided family may agree among themselves with regard to any particular property that they shall enjoy the same thereafter in certain defined shares. Such a definment of share effects a change in the character of the undivided property. Also, `Separation of share' is a species of 'partition'. When all co-owners get separated, it is a partition. Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother. In a CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 18 of 23 suit for partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit properties, but also division of his share by metes and bounds. This involves three issues: (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner, the property/properties should be divided by metes and bounds? Reliance is placed upon Chennananjappa v. Khaleel, 43 Mys. 375 and Waman v. Ganpat, 1936 Bom. 10 at p.12 and Shub Karan Bubna @ Shub Karan Prasad Bubna vs. Sita Saran Bubna & Ors., Special Leave Petition (C) No. 17932/2009, decided on 21.08.2009 and 10 All. 272, 287 (P.C) alongwith Mulla, 2020 edition Hindu Law, 2023.
8(d). Now, in the instant case, admittedly, plaintiff was never been in possession of suit property. At the same time, nowhere in the entire plaint or say even in the testimonies of any of the witnesses alongwith nothing submitted during the course of oral arguments/stated in written submission that the land area mentioned in the sale deed, Ex.PW2/A (OSR), was ever partitioned between the alleged/claimed co-owners by metes and bounds and also that the portion now claimed by plaintiff/plaintiffs belongs belong to him/them. It seems relevant here to discuss that in Anathula Sudhakar vs. P. Buchi Reddy (dead) by LRs & Anr. (2008) 4 SCC 594, the Hon'ble Supreme Court has elaborated following principles:-
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 19 of 23 property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction.
But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case..
8(e). Here, also plaintiff's exclusive title over the suit property was vociferously negated by the defendants since the time of filing of their respective written statements. Even otherwise, it is a settled law from the period of privy council, till today, that the aspect of boundaries of a particular property would prevail over the measurement or when even controversies have been raised in respect of the extent of land in the property. It needs to be pin pointed here that sale documents relied upon by the plaintiff to claim his ownership over the suit property that is sale deed, Ex.PW2/A (OSR), pertains to an area much beyond than as described in the plaint and that too same is in joint names of four other persons apart from father of plaintiff, but, is not accompanied with any site plan to rely upon. This sale deed Ex.PW2/A (OSR) is in the name of predecessors in interest of plaintiff and as such plaintiff has no independent right in the CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 20 of 23 same and alleged suit property. Further, Hon'ble High Court of Delhi in Sukhbir Singh & Ors. vs. Gaindo Devi & Ors, RFA (O) No. 30/1974, decided on 26.09.2014, held in para number 11.3 that "Mere entries in revenue records cannot confer title to immovable property." As per the sale deed, Ex.PW2/A (OSR) which has writings/over writings, the land measuring 19 bigha 8 biswa, bearing different Khasra numbers, including khasra number 156, in village Sabhepur, Illaqa Shahdara, Delhi alongwith other shares of properties in Khasra bearing numbers 430 and 433 was agreed to be sold. Plaintiff in the present suit did not bother to corroborate/substantiate his site plan with that of the boundaries/measurements/demarcation. For reasons best known to the plaintiff, he has never stressed for filing of any demarcation report of the property in question as such there is no demarcation report here to be relied upon. Again, regarding demarcation report it needs to be mentioned that Hon'ble High Court of Delhi in Smt. Subhdra and Smt. Chanderwati vs. Delhi Development Authority on 11.11.2010 in RSA No. 28/2001 and CM No. 73/2001 observed that ....."17. The Punjab Land Revenue Act, 1887 extends to the Union Territory of Delhi. Chapter VII deals with surveys and boundaries Under Section 100, the Financial Commissioner has powers to make rules as to matters in which the boundaries of all or any estates in any local area are to be demarcated. Part C of the Delhi High Court Act 1966 relate to the instructions to Civil Courts. The procedure has been entailed for "Hadd Shikni cases/boundary disputes under the aforenoted instructions which are binding Instructions. As per these instructions the Field Kanungo should with his scale read on the map, the position and distance of those points from a line of square, and then with a chain and cross staff mark out the position and distance of those points. If there is no map on the square system available, he should then find three points on different sides of the place in dispute as near to it as he can, and if possible, not more than 200 kadams, apart which are shown in the map and which the parties admit to have been undisturbed. Further, these instructions should be followed by the Revenue Officers of Field Kanungos whenever they are appointed by a Civil Court as a Commissioner in suits involving disputed boundaries. This is a mandate. "18. These instructions/guidelines had not been adhered to as in evident from the demarcation report. The Tehsildar had admitted that there is construction and houses have been raised in land in dispute; it is not possible to identify pucca/permanent points as a result of CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 21 of 23 which the paimaish/measurement could not be taken. Only on approximations, the demarcation report had drawn a conclusion that the suit land falls in Khasra No.48/7. This was not the answer which was required to be given to the Court. A positive finding had to be returned in the absence of which both the Courts below had rightly ignored the demarcation report....."
Thus, there are serious questions raised with respect to the identification of the suit property? especially, qua the exact share of the plaintiff? or that if plaintiff is entitled to the share in the property in question? It is trite to say that for the purpose of obtaining a effective decree which can be executable in law the correct identifiable description of the property is must. A conjoint reading of Order VII, Rule 3 and Order XX, Rule 9 of CPC makes it clear that in a suit relating to immovable property, the plaint must disclose the identity of the suit property without any ambiguity. Reliance is placed upon S. Nagaraj v. Kalluramma, AIR 1996 Kant 125. Undoubtedly, plaintiff is the dominus litis and he cannot be compelled to sue a person against whom he does not claim any relief unless it is held, keeping in view, the pleadings and the reliefs claimed, therein, that a person sought to be added as a party is a necessary party and without his presence neither the suit can proceed nor the relief can be granted, but, here it seems that all other co-sharers as mentioned in the sale deed in question be also made party, so, that exact share of plaintiff be firstly identifiable. Doubtless that the sale deed, dated 17.04.1972, Ex.PW2/A (OSR) relied upon by the plaintiff to stake his exclusive claim over the suit property is not understandable/comprehensible vis-a-vis preponderance of probabilities as is required in the civil proceedings qua the plaintiff's share/portion/identification of the portion of the plaintiff/overall ownership of the plaintiff over his fixed portion. It is not wrong to culminate/cull out that the ground/claim raised/relied upon by the plaintiff and the endeavour of the plaintiff to prove his claim through the testimonies of his witnesses/evidence produced on his behalf is not of that CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 22 of 23 sort to be acted upon as plaintiff is not able to prove that he is exclusive owner of the suit property in the light of above discussion. In other words, it can also be said that the plaintiff has never been able to create a high degree of probability qua the ownership of suit property in his favour so as to shift the onus upon the defendant. Accordingly, both these issues are decided against the plaintiff.
9. In light of foregoing discussion, the suit of the plaintiff is dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly.
10. File be consigned to Record Room after necessary compliance.
Digitally signedMANU by MANU VEDWAN VEDWAN Date: 2025.02.27 16:27:02 +0530 (Manu Vedwan) District Judge-02 (North East District) Karkardooma Courts, Delhi.
Announced in the open court today i.e. 27th February, 2025 CS No. 402/2016 Late Bijender Singh through legal representatives Vs. Bharat Singh & Ors. Page No. 23 of 23