Delhi District Court
Smt.Nirmala Devi vs Smt.Suman Lata on 11 July, 2011
IN THE COURT OF SH.VIKAS DHULL:SENIOR CIVIL JUDGE:
CUM:RENT CONTROLLER:DWARKA COURT:NEW DELHI
RCA NO: 1/2010
Smt.Nirmala Devi
W/o Sh.Kuldeep Singh Dahiya
R/o WZ231 C, Gali No.7
Sadh Nagar
Palam Colony
New Delhi. ... Appellant
Versus
1. Smt.Suman Lata
W/o Sh.Virender Singh
2. Sh.Virender Singh
S/o Sh.Budh Ram
Both R/o C22/16
Gali No.9, Sadh Nagar
Palam Colony
New Delhi. ... Respondents
Date of institution of appeal : 31.08.2010
Date on which judgment reserved : 08.06.2011
Date on which judgment pronounced : 11.07.2011
JUDGMENT
1. Challenge in this appeal is made by the appellant/plaintiff to the judgment dated 12.07.2010 (hereinafter referred to as the im RCA NO: 1/10 1/13 pugned order) of the Ld.trial court (CentralII), Delhi whereby the suit filed by the plaintiff/appellant for permanent injunction was dis missed.
2. The brief facts which are relevant for deciding the present appeal are that plaintiff/appellant had filed a suit for permanent injunction against the defendant/respondent whereby it was averred that plain tiff/appellant is the owner of the plot bearing no. RZC22/15A, Sadh Nagar, Palam Colony New Delhi (hereinafter referred to as suit plot). It is further averred that defendant no.1/respondent no.1, who happens to be the wife of defendant no.2/respondent no.2 is the owner of adjacent plot to the suit property bearing no. RZC22/16, Gali No.9, Sadh Nagar, Palam Colony, New Delhi and defendants no.1 and 2/respondents are threatening to open windows and doors towards the suit property owned by plaintiff/appellant. Plaintiff/appel lant further averred that on 30.05.2004 at about 5.30 p.m. plaintiff/appellant found defendants no.1 and 2 leveling the suit plot. On the objection being raised by plaintiff, defendants/respondents submitted that plaintiff/appellant had no right over the suit plot. Plain tiff/appellant further averred that on 25.05.2004 Sh.Rajan J.Roy in collusion with the officers of the MCD had illegally demolished the boundary wall of the suit property of plaintiff for which plaintiff had is RCA NO: 1/10 2/13 sued a notice to the MCD as well as to Sh.Rajan J.Roy seeking damages for their illegal acts. Hence, the plaintiff/appellant had filed the suit for permanent injunction making prayer therein that defen dants/respondents be restrained from opening windows and doors towards the suit plot owned by the plaintiff.
3. In the written statement filed by defendant/respondent, it was denied that plaintiff/appellant is the owner of the suit plot. It was further sub mitted by defendants/respondents that suit plot was encroached by the plaintiff/appellant and the encroachment has been demolished by the MCD. It is further submitted that in the previous suit filed as Rajan J.Roy Versus Yogesh Dahiya, MCD in its reply had admitted that plaintiff/appellant has carried out encroachment over the suit plot. Accordingly, defendant made a prayer for dismissal of the suit.
4. On the basis of pleadings of parties, the following issues were framed by the Ld.trial court vide order dated 02.02.2005:
(i) Whether the plaintiff is entitled to the relief of permanent injunction as prayed? OPP
(ii) Relief.
5. To establish its case, plaintiff/appellant examined three witnesses namely herself as PW1, Sh.Karamvir Singh Dahiya as PW2 and RCA NO: 1/10 3/13 Sh.Kuldeep Singh Dahiya as PW3. On behalf of defendant, defen dant examined himself as DW1. No other witness was examined.
6. After hearing both the parties and after perusing the material on record, the ld.trial court vide its judgment dated 12.07.2010 came to the conclusion that documents produced on record by plaintiff/appel lant do not establish title of plaintiff/appellant over the suit property. Ld.trial court also came to the conclusion that plaintiff/appellant could not establish her possession over the suit plot. Hence, the suit of the plaintiff/appellant was dismissed.
7. The plaintiff/appellant has assailed the impugned order of the ld.trial court on the following grounds: i. It is based on conjectures and surmises and ld.trial court has ignored the evidence led before it.
ii. Ld.trial court has failed to appreciate the documents proved on record by appellant/plaintiff and also failed to appreciate the implica tion of Section 53A of the Transfer of Property Act, 1882 which would establish the title of the appellant/plaintiff of the suit property. iii. Ld.trial court has failed to appreciate that documents Ex.PW1/2 to Ex.PW1/6 coupled with the fact of possession of the suit property in RCA NO: 1/10 4/13 the hands of appellant/plaintiff confers the appellant/plaintiff with right in the suit plot.
iv. Ld.trial court has erred in holding that appellant/plaintiff has not pro duced on record any document in support of her claim of ownership and lastly on the ground that ld.trial court erred in holding that appel lant/plaintiff is not entitled to relief claimed as property of respon dent/defendant is fully constructed.
Accordingly,it is prayed that impugned order be set aside and allow the suit of appellant with cost.
8. In the reply filed by respondents/defendants, a preliminary objection was taken that the appeal filed by appellant/plaintiff is beyond the prescribed period of limitation and hence liable to be dismissed. On merits, it was submitted that appellant/plaintiff is not the owner of the suit plot and the suit plot was encroached upon by the appellant/plaintiff and illegal and unauthorized encroachment of appellant/plaintiff has already been demolished by the MCD by the orders of the Hon'ble Court of Ms.Ravinder Bedi. It is further submitted that the suit plot is a part of common public passage being used by residents and appellant/plaintiff is neither in possession, nor owner nor have any right, title or interest over the suit plot. It was RCA NO: 1/10 5/13 denied that respondents/defendants have threatened the appellant/plaintiff to open windows and doors towards the suit plot. It was further submitted that the ld.trial court has rightly dismissed the suit of appellant/plaintiff and there is no illegality or irregularity in the order of dismissal passed by the ld.trial court as appellant/plaintiff has no right, title or interest over the suit plot which is a common public passage used by respondents/defendants and other residents of the locality.
9. I have heard the counsel for appellant/plaintiff and counsel for respondents/defendants. The trial court record was also summoned and the same has been carefully perused.
10.Firstly, I shall deal with the contention of the respondent/defendant that the appeal filed by appellant/plaintiff is not within the prescribed period of limitation. The appellant/plaintiff has averred in para 10 of his appeal that he had applied for the copy of impugned order on 14.07.2010 and the same was supplied to him on 07.08.2010. Therefore, the present appeal filed on 31.08.2010 is within the prescribed period of limitation. In support of his contention, appellant/plaintiff has filed on record certified copy of judgment dated 12.07.2010. I have carefully perused the endorsement made by the RCA NO: 1/10 6/13 Copying Agency with regard to date of application and date on which certified copy was ready. As per the same, the application was made by appellant/plaintiff on 14.07.2010 and the same was made available on 24.07.2010. No document has been filed on record by the appellant/plaintiff to show that he was supplied with certified copy of the impugned order on 07.08.2010 by the Copying Agency. Therefore, the period from 14.07.2010 till 24.07.2010 only has to be excluded. Hence, the appeal filed on 31.08.2010 is barred by law of limitation. No application for condonation has been filed alongwith the present appeal. Therefore, the appeal deserves to be dismissed on this ground only.
11. Even on merits, the appeal filed by appellant/plaintiff is not maintainable for the following reasons. Respondents/defendants in the written statement had taken their objection that the suit plot does not belong to the plaintiff and even the encroachment made by plaintiff in the suit plot had been demolished by the MCD. It was also the defence of the respondent/defendant that suit plot is a public land. The defendant has also taken an objection that in the case titled as Rajan J.Roy Versus Yogesh Dahiya, the stand of the MCD is that plaintiff had made encroachment over the suit plot and he has no status in the same. Even encroachment was demolished by the RCA NO: 1/10 7/13 MCD. Therefore, right from the very beginning, plaintiff was aware that a cloud has been cast over his title over the suit plot by the defendant by calling it as a public land owned by MCD and is being used by residents as a right. It is also an admitted position between the parties that the suit plot is lying vacant. It is a settled principle of law that where the suit plot is lying vacant, the principle to be applied is that possession follows title which means whosoever party is able to prove its title over the vacant plot, will be deemed to be in possession. I am fortified in my reasoning by the judgment of the Hon'ble Supreme Court of India reported as AIR 2008 SC 2033 titled as Anathula Sudhakar V P. Buchi Reddy (Dead) by L.Rs. where the said observation was made in para 14 of the judgment. Therefore, in the present case, it was incumbent upon the appellant/plaintiff to have proved its title over the suit plot. Appellant/plaintiff has deposed on oath that she has purchased the suit property from one Sh.Anand Kumar Rajotia vide documents Ex.PW1/2 to Ex.PW1/6. I have carefully perused the documents Ex.PW1/2 to Ex.PW1/6 and only General Power of Attorney Ex.PW1/2 and Will Ex.PW1/3 are registered. The remaining documents i.e. Agreement to Sell Ex.PW1/4, Affidavit Ex.PW1/5 and Receipt Ex.PW1/6 are unregistered documents. On the basis of RCA NO: 1/10 8/13 registered General Power of Attorney Ex.PW1/2 and Will Ex.PW1/3 respectively, no title could pass to the appellant/plaintiff. The title to the suit plot which is having value more than Rs.100/ can only be transferred by way of registered sale deed. I am fortified in my reasoning by the judgment of the Hon'ble Supreme Court of India reported as Suraj Lamp & Industries (P) Ltd. V State of Haryana, AIR 2009, SC 3077 wherein it was held in para 11 that "any process which interferes with regular transfers under deeds of conveyance properly stamped, registered and recorded in the registers of the Registration Department, is to be discouraged and deprecated." This was the view taken by the Hon'ble Supreme Court of India while dealing with the transfer of immoveable property through the documents namely General Power of Attorney. Agreement to Sell and Will which were either registered or unregistered or partly registered or party unregistered.
12. In the present case also, documents produced on record by appellant/plaintiff with regard to title over the suit plot are partly registered and partly unregistered and are in the nature of General Power of Attorney, Agreement to Sell, Will etc. No registered sale deed has been produced on record by the appellant/plaintiff with regard to her title over the suit plot. Hence, on the basis of these RCA NO: 1/10 9/13 documents, out of which only General Power of Attorney Ex.PW1/2 and Will Ex.PW1/3 are registered, no right, title or interest can be created in the suit plot in the light of judgment of the Hon'ble Supreme Court of India reported as Suraj Lamp & Industries (P) Ltd.'s case (supra) .
13. Further the appellant/plaintiff has not filed on record the complete chain of documents to establish the title of seller from whom she had purchased the suit plot. In the absence of complete chain of documents, appellant/plaintiff has failed to prove her title over the suit plot. Therefore, the ld.trial court rightly came to the conclusion that on the basis of documents Ex.PW1/2 to Ex.PW1/6, plaintiff/appellant has not been able to show her title over the suit plot.
14. Further in the present case, plaintiff knew from very inception of the suit that a cloud has been cast upon her title over the suit plot in the light of demolition carried out by MCD in the suit plot in the light of averments made by plaintiff in para 7 of the plaint. Further this was the defence of the defendant also that suit plot in question belongs to the MCD and plaintiff is an encroacher. Therefore, in the light of judgment of the Hon'ble Supreme Court of India reported as RCA NO: 1/10 10/13 Anathula Sudhakar's case (supra) since the suit plot in question is a vacant site and a cloud had been cast over the plaintiff's title, therefore, it was incumbent upon the plaintiff to have proved its title visàvis the MCD. Plaintiff has not taken any steps to summon any witness from the MCD to prove that they are having no right, title or interest over the suit plot nor plaintiff sought any declaration against the MCD with regard to its title despite having the knowledge that MCD had cleared the encroachment in the suit plot way back in May, 2004. The officials of the MCD were the best evidence who could have cleared the cloud regarding the title of the appellant/plaintiff over the suit plot. Their nonexamination also make this court raise an adverse inference against the appellant/plaintiff that in case they were examined, their evidence would not have been favourable to the appellant/plaintiff. Therefore, in the light of nonexamination of MCD as witness by plaintiff, plaintiff has failed to prove her title over the suit plot.
15.The other ground which shows that plaintiff is not having any right, title or interest over the suit plot are the registered documents i.e. General Power of Attorney Ex.PW1/2 and Will Ex.PW1/3. In both these documents, the property number is left blank. Even PW2 Sh.Karamvir Singh Dahiya, who was a witness in the said RCA NO: 1/10 11/13 documents has admitted in his cross examination that he does not know the number of property for which documents Ex.PW1/2 to Ex.PW1/6 were executed. In the light of documents Ex.PW1/2 and Ex.PW1/3 and the evidence of PW2, it can be safely concluded that plaintiff does not have any right, title or interest over the suit plot as plot number is not mentioned in these documents and even witness to these documents i.e.PW2 could not tell regarding the property number for which documents were executed. It is not believable that vendor will not be aware of the property number which he intends to sell and vendee will not insist for mentioning of property number while purchasing the same. It is further proved that no title had passed to the plaintiff over the suit plot as its number is absent from the documents Ex.PW1/2 and Ex.PW1/3 which are the only registered documents.
16.Lastly, the appeal also fails on the ground that there is not even a single averment in the entire plaint or in the evidence of appellant/plaintiff wherein it has been specifically alleged that on a particular date, the defendants/respondents have made an effort to open windows and doors towards the suit plot of appellant/plaintiff. The alleged threatening of 30.05.2004 by respondents/defendants deposed to in evidence by appellant/plaintiff pertains to leveling of RCA NO: 1/10 12/13 plot by respondents/defendants. There is no evidence on record as to on which date, respondents/defendants have threatened the appellant/plaintiff and pursuant to that threatening, respondents/defendants had done some act which gave the apprehension that they intend to open doors and windows towards the plot of the plaintiff. Not a single photograph has been filed on record by the plaintiff to show that respondents/defendants had broken wall of their house which showed their intention to install doors and windows. Therefore, plaintiff was not even having any cause of action with regard to relief sought. Hence, the suit of plaintiff was rightly dismissed by the ld.trial court.
17. In the light of above discussion, I do not find any infirmity or illegality in the impugned order. Accordingly, the appeal filed by appellant/plaintiff is dismissed. A copy of the order be sent to the ld.trial court alongwith TCR. Appeal file be consigned to record room.
Announced in open court (Vikas Dhull)
Dated: 11.07.2011 SCJ:RC
Dwarka/Delhi
RCA NO: 1/10 13/13