Delhi District Court
Rehmuddin vs Chunni Lal on 26 July, 2024
IN THE COURT OF SH. DEEPANKER MOHAN
DISTRICT JUDGE-04, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 786/2016
IN THE MATTER OF :-
Sh. Rehmuddin
S/o Late Sh. Rafuddin
R/o H.No.621, Gali no.13,
Mandoli, Delhi-110093 ..... Plaintiff
Versus
1. Sh. Chunni Lal
S/o Sh. Mehar Chand
R/o Gali no.7, Village Mandoli,
Delhi-110093
2. Sh. K.K. Upadhyay
SHO, PS Harsh Vihar,
Delhi-110093
3. Sh. Dharam Pal
ASI P.S. Harsh Vihar,
Delhi-110093
4. Municipal Corporation of Delhi
Through its Chairman,
Town Hall, Chandni Chowk,
Delhi-110006
5. Sh. Mahinder Singh
S/o Sh. Harsaran Singh,
R/o H.No.B-218, Gali no.9,
Khasra no.685/11, Near Bank Colony,
Village Mandoli, Delhi-110093 ..... Defendants
JUDGMENT
1. CS no. : 786/2016
CS No. 786/2016 Page No.1 of 50
2. Under Section : Suit for possession,
permanent injunction and
mandatory injunctions.
3. Date of Institution : 06/09/2011
4. Reserved for Judgment : 06/05/2024
5. Judgment : 26/07/2024
1. Vide this judgment, this court shall adjudicate this suit for possession, permanent injunction and mandatory injunctions filed by the plaintiff against the defendants.
2. On 06/09/2011 the plaintiff filed the present suit against defendants claiming following prayers which are mentioned as under:-
"(a) A decree of possession in favour of the plaintiff and against the defendants No. 1 & 5 thereby directing the defendants no. 1 & 5, their attorneys, agents, servants, legal heirs, legal representative to handover the peaceful physical vacant possession of part of property bearing Property No. 605/11, Khatoni No. 154/143/9 situated in Gali No. 1, Bank Colony, Mandoli, Delhi- 110093 more specifically shown in red colour in the site plan attached herewith.
(b) A decree of Permanent Injunction, in favour of plaintiff and against the defendant Nos. 1 & 5, thereby restraining the defendant Nos. 1 & 5 from raising CS No. 786/2016 Page No.2 of 50 illegal construction in the suit property bearing no.
Property No. 605/11, Khatoni No. 154/143/9, situated in Gali No. 1, Bank Colony, Mandoli, Delhi-110093, more specifically shown in red colour in the site plan attached herewith.
(c) A decree of Permanent Injunction, in favour of plaintiff and against the defendant Nos. 2 & 3, thereby restraining the defendant Nos. 2 & 3 from allowing the defendant Nos. 1 & 5 to raise illegal construction over the suit property bearing no. Property No. 605/11, Khatoni No. 154/143/9, situated in Gali No. 1, Bank Colony, Mandoli, Delhi-110093, more specifically shown in red colour in the site plan attached herewith.
(d) A decree of Mandatory Injunction, in favour of plaintiff and against the defendant Nos. 4, thereby directing the defendant No. 4 to demolish the illegal and unauthorized construction being raised by the defendant Nos. 1 & 5 with the help of defendant Nos. 2 and 3 over the suit property bearing property No. 605/11, Khatoni No. 154/143/9, situated in Gali No. 1, Bank Colony, Mandoli, Delhi- 110093 more specifically shown in red colour in the site plan attached herewith.
CS No. 786/2016 Page No.3 of 50(e) Any other relief(s) which this Hon'ble Court may deem fit and proper, under the facts and circumstances of the case, in favour of the plaintiffs and against the defendants."
3. The case of the plaintiff mentioned in amended plaint is as follows:-
(I) Plaintiff is the owner and was in possession of piece of land measuring 120 sq. yards, part of property bearing Khatoni no.154/143/9, Khasra no.605/11, situated in Gali No.1, Bank Colony in the area of Village Mandoli, Shahdara, Delhi (hereinafter referred as suit property).
The suit property was allotted by Govt. of India under 20th point programme to the father of plaintiff Sh. Rafuddin, who expired on 12.09.1975 and after his death, the suit property was devolved upon his two sons i.e. plaintiff and his brother Sh. Ali Hassan.
(II) Plaintiff and his brother constructed a boundary wall and put their gate on the suit property in the month of January/February, 1993 and filed an application before the SDM, Seemapuri, Delhi, therefore after inspection of the suit property, the mutation was done vide order dated 24.06.1993 in favour of plaintiff and his brother namely Sh. Ali Hasan. It is also stated that on 17.06.2011, Sh. Ali Hasan released his right over the suit property and executed a release deed in favour of plaintiff which was CS No. 786/2016 Page No.4 of 50 registered before Sub-registrar-IV-A, Nand Nagri, Shahdara, Delhi, vide document no. 2430, Book no.I, Volume no.1002, from pages no. 61 to 63, dated 17.06.2011. It is also stated that some disputes arose between plaintiff and his brother namely Sh. Ali Hasan after execution of release deed dated 17.06.2011, therefore plaintiff filed a suit for permanent and mandatory injunction against his brother namely Sh. Ali Hasan but the said matter had been settled between plaintiff and his brother and a compromise decree was passed in the said suit.
(III) The Plaintiff through his counsel had sent a legal notice dated 09/08/2011 when he came to know that D-1 had prepared some forged and fabricated documents with regard to the suit property in conspiracy with one Tulla S/o Sh. Ram Chander, R/o Gali No.9, Mandoli, Delhi-110093.
(IV) Upon receipt of said notice, D-1 replied the said legal notice and stated that he had purchased a property measuring 61 sq. yards bearing property no. B-216, out of Khasra no.605/9, Khatoni no.132, from Sh. Bhagmal Singh on 28.02.2008 and Sh. Bhagmal Singh purchased the same from Sh. Tulla S/o Sh. Ram Chander. The Khasra and Khatoni numbers as well as area of property of plaintiff are different from the property of D-1.
CS No. 786/2016 Page No.5 of 50(V) Plaintiff had applied for taking NOC in respect of suit property for selling the same however, on 27.06.2011 S.D.M./R.A., Seemapuri, Nand Nagri, Delhi passed a rejection order because the suit property is not subject to sale.
(VI) On 19.08.2011, D-1 had broken the behind wall of the suit property and started raising illegal construction due to which plaintiff made a 100 number call and at PS Harsh Vihar, D-1 gave his statement before ASI Bhola Ram that he will not raise any construction in the suit property.
(VII) On 20.08.2011, the plaintiff gave an application to the concerned SDM, North-East District, Nand Nagri, Delhi for the demarcation of the suit property.
(VIII) On 27.08.2011, at about 4:00/5:00pm, D-1 again started illegal construction over the suit property then plaintiff made a 100 number call, thereafter, ASI Dharampal along with D-2 reached at the suit property and took plaintiff and D-1 in the police station. In the police station, D-1 won over D-2 and D-3, therefore, with the conspiracy of D-2 and D-3 the suit property was illegally and unauthorizedly taken into possession by D-
1. It is further stated that D-1 gave a huge money to D-2 and D-3 for remain in the illegal possession of the suit CS No. 786/2016 Page No.6 of 50 property and allowing D-1 to raise illegal and unlawful construction over the suit property. It is further stated that the plaintiff gave a complaint in writing to the DCP in this regard.
(IX) On 30.08.2011, plaintiff gave a complaint to the Dy. Commissioner, MCD (South Zone), Shahdara, Delhi regarding illegal construction over the suit property raised by D-1. D-1 with the conspiracy of D-2 and D-3 illegally trespassed into the suit property and taken the forcible possession of the same after breaking the behind wall of the suit property and the plaintiff had also filed a complaint case u/s 448/120-B/34 IPC, which is pending for disposal before the Ld. M.M., Karkardooma Courts, Delhi.
(X) The defendant no. 5 has illegally and unlawfully trespassed into the suit property.
(XI) D-1 and 5 have no right, interest or authority in the suit property and they have raised/ are raising illegal and unauthorized construction over the suit property after taking the forcible possession of the suit property with the help of D-2 and D-3, whereas D-4 is duty bound to stop the illegal construction over the suit property as well as D-4 is also bound to demolish the illegal construction raised illegally by D-1 and 5 with the help CS No. 786/2016 Page No.7 of 50 of D-2 and D-3 which D-4 had failed to stop and to demolish the same despite the complaint in writing given by the plaintiff in this regard and defendant No. 5 has illehally trespassed the part of the suit property.
(XII) It is further stated in the plaint that the plaintiff has a right to take possession of the suit property from the D-1 and 5. Finding no other way, plaintiff was constrained to file the present suit against the defendants.
4. Summons in the present suit were issued against defendants vide order dated 07.09.2011. On 08.09.2011, Ld. Counsels for the defendants D-1 to D-4 appeared in the present matter. On 05.10.2011, written statement was filed on behalf of D-1 in the present case.
5. On 19/09/2011, Sh. Mahender Singh moved an application praying his impleadment as Defendant No. 5. Subsequently, on 10.10.2011, plaintiff had also moved an application under Order I Rule 10 CPC for impleading SDM Seemapuri and Tehsildar Nand Nagri as D-5 and D-6 respectively, however, vide Order 29.03.2012, the application filed by Sh. Mahender Singh was allowed and he was impleaded as D-5 in the present suit and subsequently on 03.09.2012, written statement was filed on behalf of D-5. As the status report in respect to the suit property has been received from concerned SDM, therefore, the application under Order I Rule 10 CPC filed by the plaintiff was CS No. 786/2016 Page No.8 of 50 dismissed as withdrawn vide Order dated 29/03/2012. On 03/09/2012, the defendant no. 4 had also filed its written statement.
6. On 16.11.2012, none has appeared on behalf of D-2 and D- 3, therefore they were proceeded exparte in the present case. On 04.01.2013, plaintiff had filed replications to written statements of Defendant no. 1 and 5 on 17.05.2011 and 04/01/2013 respectively.
7. Pleadings in the present matter was completed and on 13.03.2013 following issues were framed in the present case which are as under:-
I. Whether the plaintiff is entitled to a decree of possession in respect to the property no.605/11 consisting of Khatoni no.154/143/9 situated in gali no.1, Bank Colony, Mandoli, Delhi- 93 against the D-1 as claimed? OPP II. Whether the plaintiff is entitled to a decree of permanent injunction against the D-1 to D-3 in respect of suit property as claimed? OPP III. Whether the plaintiff is entitled to a decree of mandatory injunction against the D-4 in respect of suit property as claimed?
OPP IV. Whether the suit is time barred? OPD V. Whether the suit property is owned by Gram Sabha Mandoli and if so, whether the suit is bad for non-joinder of necessary parties? OPD CS No. 786/2016 Page No.9 of 50 VI. Relief.
8. On 22.08.2013, plaintiff had moved an application under Order VI Rule 17 CPC for amendment of the plaint. The said application was allowed on 25.03.2014. On 09.05.2014, written statement of the amended plaint was filed on behalf of the D-1 & D-5.
9. The averments mentioned in their written statement to the amended plaint filed by Defendant no. 1 and 5 are as under:-
I. The present suit is not maintainable in view of the report filed by the area SDM before this court wherein it has been pleaded that plaintiff had already sold the suit property to Smt. Sukhbiri W/o Sh. Mangal Sain on the basis of GPA etc. in the year 1982 who further sold the suit property vide sale documents dated 28/04/1987 in favour of mother of Defendant no. 5 Smt. Ram Sri and she further transferred the suit property in favour of Defendant no. 5 vide sale documents dated 26/02/1996 thus the plaintiff had left with no right, title or interest qua the suit property. The mutation order dated 24/06/1993 was obtained by the plaintiff and his brother in a fraudulent manner because after the sale of the property in question by plaintiff and his brother to Smt. Subhbiri vide documents dated 15th February, 1982, plaintiff and his brother ceases to be the owner of the suit property. The brother of Ali Hasan was having no right in the suit property on 17/06/2011, therefore, CS No. 786/2016 Page No.10 of 50 relinquishment deed is bad in law and does not derive any right in favour of plaintiff in respect to suit property.
II. The plaintiff is a habitual of filing false and frivolous cases against the different persons to extort money. The site plan filed by the plaintiff is incorrect. Defendant no.1 never raised any illegal construction over the suit property and never dispossess the plaintiff moreover, the plaintiff never remained in possession of the property occupied by the defendant no.1 since plaintiff has not placed on record any documents showing his physical possession either regarding the suit property or regarding the property of Defendant no.1.
III. Neither the plaintiff is the owner nor in possession of the suit property and plaintiff has no right, title or interest either in the property of the Defendant no. 1 or in the property in question owned by the Defendant no. 5 which had already been sold by him and his brother in the year 1982. It is further stated that there was no occasion for Defendant no. 1 either to trespass or to take forcible possession as alleged since he is possession being owner of a property through the sale documents dated 28/02/2008.
IV. The property occupied by Defendant no. 1 was initially allotted to one Sh. Khurshed S/o Sh. Rehat bearing khasra no. 605/9, admeasuring 122 sq. yards situated at CS No. 786/2016 Page No.11 of 50 Village Mandoli, who sold the same on 20 th August, 1982 to Sh. Ram Dass S/o Sh. Shiv Charan vide sale documents i.e. GPA, Agreement, registered receipt etc. and after the demise of Sh. Ram Dass, all his Legal heirs executed a registered GPA in favour of Smt. Gyan Wati W/o Sh. Ram Dass authorizing her to sale the property owned by Sh. Ram Dass and thereafter, Smt. Gyan Wati sold the property in question vide documents dated 12th May, 2004 to one Sh. Sunder Lal S/o Sh. R.P. Singh. Thereafter, Sh. Sunder Lal sold the property in favour of Sh. Tula Ram vide sale documents dated 10th March, 2005 and Sh. Tula Ram sold the property to Sh. Bhagmal Singh S/o Sh. Panpat Singh vide sale documents dated 14th January, 2008 who further sold the property to the defendant no. 1 vide sale documents dated 28th February, 2008 and since then Defendant no. 1 is in exclusive possession of his property and plaintiff has nothing to do with the same. The property of defendant no. 1 is now property no. B-216, Khasra no. 605/09, situated at the area of Village Mandoli, in the abadi of Gali no. 9, Bank Colony, Illaqa Shahdara, Delhi- 110092.
V. The present suit is time barred as the plaintiff had sold the property in question to Smt. Sukhbiri on 18th February, 1982 and the present suit has been filed on 06/09/2011 after a gap of approximately 29 years.
CS No. 786/2016 Page No.12 of 50VI. The present suit is bad for non-joinder of necessary party because the plaintiff has not made Gaon Sabha as party to the present suit and the owner of the property in question is Gaon Sabha
10. Defendant No. 4 also filed its written statement in which defendant no. 4 states as under:-
I. On 06/06/2002 suit property was inspected and found that suit property consisted of 70 sq. yards and built up only ground floor. It was also found during inspection that the construction is old one and no fresh construction is going on at the site, however, the said construction is without any sanctioned plan and defendant no. 4 shall take appropriate action in accordance with law. It is further stated that present suit is liable to be dismissed under Order VII Rule 11 CPC as no cause of action has ever arisen in favour of plaintiff for filing the present suit against defendant no.
4.
11. Pleadings in the present matter was completed and on 12/05/2015 following additional issues were framed in the present case and for the sake of convenience, all the issues are re- numbered which are as under:-
i. Whether the plaintiff is owner of the suit property i.e. land measuring 120 sq. yards in Khasra no.605/11 situated in Gali no.1, Bank Colony in the area of Village Mandoli, Delhi? OPP CS No. 786/2016 Page No.13 of 50 ii. Whether D-1 and D-5 are trespassers in the suit property? OPP iii. Whether D-1 raised illegal and unauthorized construction over the suit property? OPP iv. If issue no. iii is answered in affirmative, whether D-4 failed to stop and demolish the unauthorized construction over the suit property? OPP v. Whether the plaintiff has not approached the court with clean hands? OPD vi. Whether the suit of the plaintiff is barred by limitation? OPD vii. Whether the suit is bad for non-joinder of necessary parties? OPD viii. Whether the plaintiff is entitled for decree of possession of the suit property, as prayed? OPP ix. Whether the plaintiff is entitled for decree of permanent injunction, as prayed? OPP x. Whether the plaintiff is entitled for decree of mandatory injunction, as prayed? OPP xi. Relief.
12. Plaintiff to prove his case, examined himself as PW-1 and he deposed as follows which is as under :-
I. PW-1- plaintiff himself. On 11.12.2017, PW-1 tendered his evidence by way of affidavit which was exhibited as CS No. 786/2016 Page No.14 of 50 Ex.PW1/A and also relied on following documents i.e. (1) Ex.PW1/1- Site plan, (2) Ex.PW1/2- Certified copy of release deed dated 08.06.2001, (3) Ex.PW1/3- Legal notice dated 09.08.2011, (4) Ex.PW1/4 & Ex.PW1/5-
Two postal Receipt, (5) Ex.PW1/6- Reply dated 16.08.2011, (6) Ex.PW1/7- Complaint dated 30.08.2011 addressed to DCP(NE), (7) Ex.PW1/8- complaint dated 30.08.2011 addressed to DCP (MCD), (8) Mark-A- Photocopy of Khatoni, (9) Mark-B- Copy of order, statement of plaintiff and statement of Ali Hasan, and decree all dated 16.07.2011 passed in C.S. No. 286/2011 and (10) Mark-C- Copy of complaint filed by plaintiff before concerned MM. PW-1 deposed on the line of contents of the plaint. PW-1 was cross examined by the Ld. Counsel for D-1 and D-5 at length.
II. PW-1 in cross examination admitted the suggestion that he had never resided in the suit property. He voluntarily deposed that the boundary walls of the suit property had been constructed by him. He deposed that boundary wall was around 6-7 feet of height and it was constructed in the year 1992-1993. He admitted the suggestion that he had not placed on record any documentary to show that he had raised construction of boundary wall over the suit property in the year 1992- 1993. He denied the suggestion that he did not raise any boundary wall on the suit property in the year 1992- CS No. 786/2016 Page No.15 of 50 1993. He admitted the suggestion that he did not have any ration card, election card, I-card, electricity and water meter in his name qua the suit property till date, since inception. He admitted the suggestion that entire area is built up where the suit property is situated. He deposed that he is owner of lots of land in village Mandoli, Delhi, however, he could not tell the exact area of said lands. He denied the suggestion that he is deliberately not replying the exact area of his property situated at Village Mandoli.
III. PW-1 admitted the suggestion that initially, the suit plot was allotted to his father by Gram Sabha under 20 points scheme. He deposed that he cannot tell if the aforesaid suit plot was allotted to landless person of the village. He deposed that as of now, 5-6 matters are pending in different courts filed by him regarding the properties of village Mandoli. He further deposed that no matter has been disposed off till date. He deposed that he did not remember if he had filed number of cases regarding the properties of village Mandoli against different persons or the said cases had been dismissed. He denied the suggestion that he is habitual of filing frivolous cases against different persons in the area of Mandoli. He denied the suggestion that as per record, Gram Sabha is a recorded owner of the suit plot.
CS No. 786/2016 Page No.16 of 50He voluntarily deposed that mutation is in his name of the suit plot. He deposed that he could not tell as to how much area is in the possession of D-1 even by imagination.
IV. He deposed that he is not aware about the frond portion and length of the suit plot. He deposed that he cannot identify the signatures of his brother Ali Hasan. He deposed that he can identify his own signature, if shown to him. He denied the suggestion that on 18/02/1982 he had sold the suit property to Smt. Sukhbiri vide sale documents i.e. GPA, agreement to sell and registered receipt. He deposed that in the east side of the suit plot, there is a gher of Chunni lal, in West there are house, in North there is a road and in South direction there is a road. He deposed that he cannot tell the name of next door neighbour of the suit property. He admitted the suggestion that he did not have any documentary proof to show his possession of the suit plot since 1982 till date. He deposed that the demarcation of the suit plot had been carried by Sh. Ashok Patwari. He deposed that he had not placed on record the said demarcation report. He deposed that he cannot produce the demarcation report of the suit plot. He voluntarily deposed that Sh. Ashok Patwari had not given him the said report. He further deposed that till CS No. 786/2016 Page No.17 of 50 date he had not made any application to Sh. Ashok Patwari seeking demarcation report. He denied the suggestion that no demarcation of the suit plot had ever been carried out. He deposed that he cannot tell whether Khasra no. 605/9, Village Mandoli was initially allotted to Khursheed. He admitted the suggestion that he has no right, title or interest of concern with Khasra no.605/9 and plot no. B-216 Village Mandoli, Delhi-93. He deposed that he cannot say whether the suit property is electrified or having water connection, in the name of D-1 or not. He denied the suggestion that he had filed a collusive suit.
V. He deposed that he cannot say if Gram Sabha is the recorded Bhumidar of Khasra no.605/11, Village Mandawli. He was shown documents i.e. original GPA dated 18.02.1982, agreement dated 18/02/1982, registered receipt dated 18/02/1982, after seeing the same he deposed that the aforesaid documents did not bear his signatures at point 'X' on Mark PW1/DA to Mark PW1/DC. He denied the suggestion that Mark PW1/DA to Mark PW1/DC bears his signatures and he is deliberately denying the same. He denied the suggestion that Mark PW1/DA to Mark PW1/DC were executed and registered by him and his brother in Sub- registrar Office on 18/02/1982.
CS No. 786/2016 Page No.18 of 50VI. He deposed that since he is not aware of the document dated 18/02/1982, therefore, he has not made any complaint. He denied the suggestion that he is aware of the document dated 18/02/1982 since the execution of the same and subsequently when the documents dated 18/02/1982 filed before the court and supplied to him. He deposed that FIR was registered against defendants for trespassing. Again said, it was complaint. He admitted the suggestion that he had not impleaded gram Sabha Village Mandoli as a necessary party in the present matter intentionally and deliberately. He denied the suggestion that Mark B was a collusive suit. He denied the suggestion that he has no right, title or interest in the suit property. He denied the suggestion that till date, he had not deliberately challenged the documents dated 18/02/1982 as he and his brother have voluntarily sold the suit property for lawful consideration or that parted with possession or that he or his brother have left with no right, title or interest since 18/02/1982. He admitted the suggestion that D-1 and D-5 did not raise any illegal construction in the suit property or that his complaints relied upon documents are forged and fabricated and created one with view to file the instant suit to extort money from D-1 and D-5. He denied the suggestion that site plan Ex.PW1/1 is not CS No. 786/2016 Page No.19 of 50 correct as per site. He denied the suggestion that he has no right to file the present suit.
VII. The right of D-4 to cross examined PW-1 was closed vide order dated 22.08.2022.
13. Plaintiff has failed to bring any witness or failed to file any affidavits of witnesses on record, therefore, the evidence of plaintiff stands closed on 09.02.2023 and the matter was listed for defendants' evidence.
14. D-1 & D-5 in their defence has examined following two witnesses which are as under:-
I. DW-1 Defendant no. 1 himself. On 27.03.2023, DW-1 tendered his evidence by way of affidavit as exhibited as Ex.DW1/A and also relied on documents i.e. (1) Ex.DW1/1(OSR)-GPA dated 20/08/1982, (2) Ex.DW1/2(OSR)-Agreement for sale deed dated 20.08/1982, Ex.DW1/3(OSR)-Registered receipt dated 20/08/1982, (4) Ex.DW1/4(OSR)-Registered GPA dated 25/01/2003, (5) Ex.DW1/5(OSR)(Colly.)-Sale documents all dated 12/05/2014, (6) Ex.DW1/6(OSR)-
GAP dated 10/03/2005, (7) Ex.DW1/7(OSR)-
Agreement to sell dated 10.03.2005, (8)
Ex.DW1/8(OSR)-Possession letter dated 10.03.2005, (9) Ex.DW1/9(OSR)-Receipt dated 10.03.2005, (10) Ex.DW1/10(OSR)-Affidavit dated 10.03.2005, (11) CS No. 786/2016 Page No.20 of 50 Ex.DW1/11(OSR)-GPA dated 14.01.2008, (12) Ex.DW1/12(OSR)-Agreement to sell dated 14.01.2018, (13) Ex.DW1/13(OSR)-Affidavit dated 14/01/2008, (14) Ex.DW1/14(OSR)-Possession letter dated 14/01/2008, (15) Ex.DW1/15(OSR)- Receipt dated 14/01/2008, (16) Ex.DW1/16(OSR)- Deed of Will dated 1401.2008, (17) Ex.DW1/17(OSR)-GPA dated 28.02.2008, (18) Ex.DW1/18(OSR)-Agreement to sell dated 28.02.2008, (19) Ex.DW1/19(OSR)-Affidavit dated 28.02.2008, (20) Ex.DW1/20(OSR)-Possession letter dated 28.02.2008, (21) Ex.DW1/21(OSR)-Receipt dated 28.02.2008, (22) Ex.DW1/22(OSR)-Deed of Will dated 28.02.2008, (23) Ex.DW1/23(OSR)- Electricity bill, (24) Ex.DW1/24(OSR)-Complaint dated 21.08.2011, (25) Ex.DW1/25(OSR)-Khasra Grdawari for 1981/82 and (26) Ex.DW1/26-Original SDM Report. DW-1 was cross examined by the Ld. counsel for the plaintiff.
II. DW-1 was cross examined by Ld. Counsel for plaintiff on 29.05.2023 wherein He deposed that he has a GHER ad-measuring 60 sq. yards. He deposed that Khasra number of his GHER in revenue record i.e. 601, Village Mandoli. He deposed that he can produce the revenue record/khatoni of his GHER. He deposed that his GHER had not been allotted any municipal number till now. He denied the suggestion that he had broken the CS No. 786/2016 Page No.21 of 50 wall at point A in site plan Ex.PW1/1. He admitted the suggestion that plot no.605/9, plot no.605/10, plot no.605/11 were sliced from Gaon Sabha land and subsequently allotted weaker sections of the society. He admitted the suggestion that father of plaintiff was also allotted a land under Weaker Sections of the Society, however, he deposed that he did not remember the date of said allotment. He deposed that he did not know the date of death of father of the plaintiff. He admitted the suggestion that the allotment was under 20 point programme, however, he did not remember the year of same. He deposed that plaintiffs themselves had sole the suit property. He denied the suggestion that the suit property was sold on 18.02.1982 by GPA, Agreement to Sell or that plaintiff was minor at the time when the alleged sale documents were entered into by plaintiffs namely Rehmuddin and Ali Haassan and Smt. Sukhbiri or that suit is based upon false and fabricated facts or that the same is highly time barred or that the same is time barred.
III. DW-2 namely Sh. Mahinder Singh. On 27.03.2023, tendered his evidence by way of affidavit as exhibited as Ex.DW2/A and also relied on documents i.e. (1) Ex.DW2/1(OSR)(objected to being incomplete one)- GPA dated 18.02.1982, (2) Ex.DW2/2(OSR(objected to CS No. 786/2016 Page No.22 of 50 being incomplete one)- Agreement dated 18.02.1982, (3) Ex.DW2/3(OSR)- Registered receipt dated 18.02.1982, (4) Ex.DW2/4(OSR)- GAP dated 28.04.1987, (5) Ex.DW2/5(OSR)- Agreement dated 28.04.1987, (6) Ex.DW2/6(OSR)- Receipt dated 28.04.1987, (7) Ex.DW2/7(OSR)(Colly)- GPA and agreement to sell dated 26.02.1996 & (8) Already Ex.DW1/25- Khasra Girdawari. On 11.01.2024, DW-2 (wrongly mentioned in the cross examination as DW-5) was cross examined by the Ld. counsel for the plaintiff. He deposed that the suit plot was transferred by his mother on 26.02.1996 and this plot was purchased by his mother from Sh. Sukhbiri on 28.04.1987. He deposed that he did not know what was the sale consideration between his mother and Sh. Sukhbiri. He deposed that he did not know whether the transaction between his mother and Sh. Sukhbiri was registered though his mother and Sukhbiri went to Seelampur Court for the execution of the said transaction. He deposed that he did not know the exact date on which the suit plot was allotted to the father of the plaintiff by the Gram Sabha. He deposed that he did not know the name of the father of the plaintiff. He deposed that he did not know have the death certificate of father of the plaintiff. He again deposed that he did not know about the factum of death of father of the plaintiff.
CS No. 786/2016 Page No.23 of 5015. On 11.01.2024, Defendants' evidence qua defendant no.1 and 5 was closed. Ld. counsel for MCD/D-4 submitted that D-4 did not want to lead and his separate statement was recorded in his regard and defendants' evidence qua defendant no.4 was closed. None was appearing on behalf of the defendant no.3, therefore defendants' evidence qua defendant no.3 was also closed on 11.01.2024. The Defendant no. 2 and 3 were already proceeded ex-parte vide order dated 16/11/2012. Matter was listed for final arguments on 11.01.2024.
16. Final arguments were heard on 05.03.2024, 20.03.2024, 15.04.2024, 18.04.2024 & 06/05/2024. The written submissions on behalf of plaintiff as well on behalf of defendant no. 1 and 5 were filed on 20/03/2024.
APPRECIATION OF EVIDENCE AND DETERMINATION OF THE CASE ISSUE-WISE
17. ISSUE NO. i:- Whether the plaintiff is owner of the suit property i.e. land measuring 120 sq. yards in Khasra no.605/11 situated in Gali no.1, Bank Colony in the area of Village Mandoli, Delhi? OPP i. The following facts are not in dispute among the Plaintiff and Defendant no.1 and 5 which are mentioned as under:-
a. A piece of land ad-measuring 120 sq. yards bearing khasra no. 605/11, Village Mandoli, Delhi (Khatoni number 154/143/9) CS No. 786/2016 Page No.24 of 50 was allotted to the father of Plaintiff namely Rafuddin, under 20- point programme by Gram Sabha i.e. suit property.
b Rafuddin died on 12.09.1975 and after his death, the suit property was inherited by his two sons i.e. plaintiff and his brother Sh. Ali Hasan.
ii. The Plaintiff has filed a photocopy of Khatoni for the year 1988-89 which was marked as Mark-A during the examination of PW-1. The plaintiff has not called any witness from the revenue department/ office of concerned SDM/RA to prove the said document. The Plaintiff has also not filed the original patta issued to his father or to him at the time of allotment and LR-37 receipt to prove the payment of rent. However, defendant no. 1 during his examination has relied upon a report of SDM Seemapuri Ex. DW-1/26, which was filed in the present matter as per the direction of this Court and as per this report dated 25/08/2011, the suit property was allotted to Rafu under 20 point programme and after his death, the name of plaintiff and his brother Ali Hasan was entered into the records on 24/06/1993 in respect to the suit property.
iii. The basic purpose of the allotment of land for residential purpose under 20 point programme was to grant residential houses to the landless person in order to uplift them from the weaker section of the society. The residential land was allotted to the allottee(s) as lessee(s) with the condition that the allottee shall not transfer the allotted land. The land under 20 point programme was not allotted as owners to the allottee however, CS No. 786/2016 Page No.25 of 50 the same was allotted as Lessee on patta with the condition that the said land/plot shall not be further sold to anyone.
iv. The Division Bench of Hon'ble High Court of Delhi in C.W.P. No. 973/1987 titled as "Tek Chand Sharma & Ors. v. Lt. Governor of Delhi & Ors."- date of decision- 18/08/1987 [ILR (1987) 1 Delhi 193, has turned down the arguments of the Ld. Counsel for the petitioners that there are only two tenure-holders
- bhumindhar and Asami- created by the Delhi Land Reform Act and those two tenure-holders are meant for the cultivation of the land only those for agriculture purposes of purpose subsidiary thereto and for no other purpose for which reason the allotment of the land in question as housing sites is barred by the Act. It was held that reading together Section 3 (13) (b) and Section 74 (1) (b) and Section 6 (a) (iii) of the Delhi Land Reform Act and the amended rule 178 (2) of the Delhi Panchayat Raj Rules set out above goes to show that the Gaon Sabha had the right to allot housing sites from the pasture land to various persons as lessees (Asamis). In the present matter, the Division Bench of Hon'ble High Court of Delhi was dealing with the case in which Gaon Sabha allotted the pasture land for residential purpose to landless person under 20 point programme of Government of India and it was held that the Gaon Sabha can allot the said land to beneficiaries as lessees (Asamis).
v. DW-1 during his cross-examination recorded on dated 29/05/2023 has deposed- "It is correct that plot no. 605/9, plot no. 605/10, plot no. 605/11 were sliced from Gaon Sabha land CS No. 786/2016 Page No.26 of 50 and subsequently allowed to weaker sections of the society. It is correct that father of plaintiff was also allotted a land under weaker sections of the society." The Defendant No. 1 also admits in his written statement that the suit land was allotted to the father of Plaintiff under 20 point programme and after his death, suit land was devolved in favour of plaintiff and his brother Ali Hasan. The Defendant No. 5 also admits the said fact.
vi. The Plaintiff also rely upon the certified copy of one release deed dated 08/06/2011 Ex. PW-1/2 vide which Ali Hasan has released his share in the suit land in favour of the Plaintiff. It is noteworthy to mention here that Plaintiff has not produced the original release deed before this Court during trial and further has also not assigned a good cause for its non-production, however, the certified copy of release deed was tendered in chief examination of PW-1 as Ex. PW-1/2 and objection for "mode of proof" was not taken on behalf of defendant no. 1 and 5, therefore, the execution and authenticity of document Ex. PW- 1/2 is also not in dispute. It is further noteworthy to mention here that plaintiff has not produced any documentary evidence to show that the competent authority has transferred the ownership rights in favour of plaintiff and his brother Ali Hasan in respect to suit land, therefore, afore-said release deed cannot be constituted as title/ownership document in favour of plaintiff, however, the same be considered as release of right to be a co-lessee in the suit land by Ali Hasan in favour of plaintiff because after the death of CS No. 786/2016 Page No.27 of 50 Rafu, the name of plaintiff and Ali Hasan was inserted in the records as lessees and not as owners of the suit land.
vii. In view of the admission of parties of parties, evidence on record including SDM report Ex.DW-1/26, above-observation and law laid down by the Division Bench of the Hon'ble High Court of Delhi, this Court is of view that the suit land i.e. plot in Khasra No. 605/11 (0-2-8 i.e. 120 sq. yards) was allotted to the father of plaintiff as lessee (Asami) and after his death, the name of the plaintiff and his brother was entered into the records as lessees (Asamis) and after execution of release deed Ex. PW-1/2, the Plaintiff became the sole lessee (Asami) of the suit land. The Plaintiff is not the owner but the lessees (Asami) of the suit land.
viii. The Issue No. i is accordingly decided.
18. The Issue no. ii, iii, iv and x are taken up together for adjudication.
ISSUE NO. ii:- Whether D-1 and D-5 are trespassers in the suit property? OPP AND ISSUE NO. iii:- Whether D-1 raised illegal and unauthorized construction over the suit property? OPP AND CS No. 786/2016 Page No.28 of 50 ISSUE NO. iv:- If issue no. iii is answered in affirmative, whether D-4 failed to stop and demolish the unauthorized construction over the suit property? OPP AND ISSUE NO. x:- Whether the plaintiff is entitled for decree of mandatory injunction, as prayed? OPP i. The onus to prove these issues is upon the Plaintiff. The plaintiff pleads that he was in the physical possession of the suit land uptill 27/08/2011 and on the said day, Defendant no. 1 trespassed into the suit property. The Plaintiff also filed complaints to the police in this regard and when no action was taken against the defendant no. 1, present suit was filed.
ii. The Defendant No. 1 claims to be the owner in possession of 61 sq. yards of the built-up property on the land of Khasra No. 605/9, Village Mandoli, Delhi. He further claims that Khasra No. 605/9, area ad-measuring 120 sq. yards Village Mandoli, Delhi was allotted to one Sh. Khurshed S/o Sh. Rehmat under 20 point programme (Khasra Girdawari for 1981-82 Ex. DW-1/25) and on 20th August, 1982 he sold the said land to one Sh. Ram Dass S/o Sh. Shiv Charan vide GPA, Agreement to Sell and registered receipt all dated 20/08/1982 which are exhibited as Ex. DW-1/1 to Ex. DW-1/3 respectively; after the demise of Sh. Ram Dass, all his LRs executed a registered Power of Attorney dated 25.01.2003 Ex. DW-1/4 in favour of Smt. Gyan Wati W/o Late Sh. Ram Das; thereafter, on 12/05/2004 Smt. Gyan Wati sold the CS No. 786/2016 Page No.29 of 50 property to one Sh. Sunder Lal S/o Sh. R.P. Singh vide Agreement to sell, Affidavit and Receipt all dated 12/05/2004 which are exhibited as Ex. DW-1/5 (Colly); thereafter on 10/03/2005 Sh. Sunder Lal further sold the property to one Sh. Tula Ram vide GPA, Agreement to Sell, Possession Letter, Receipt and Affidavit which are exhibited as Ex. DW-1/6 to DW- 1/10 respectively; thereafter on 14/01/2008 Sh. Tula Ram sold the property to Sh. Bhagmal Singh S/o Sh. Panpat Singh vide GPA, Agreement to Sell, Affidavit, possession letter, Receipt and Deed of Will all dated 14/01/2008 which are exhibited as Ex. DW-1/11 to DW-1/16 respectively and thereafter, on 28/02/2008 Sh. Bhagmal Singh sold the property to Defendant no. 1 vide GPA, Agreement to sell, Affidavit, possession letter, receipt and Deed of Will all dated 28/02/2008 which are Ex. DW-1/17 to Ex. DW-1/22. It is claimed by Defendant no. 1 that the property occupied by him is in his possession since 28/02/2008 and it is now known as property bearing no. B-216, Khasra No. 605/9, situated at the area of Village Mandoli, in the abadi of Gali No. 9, Bank Colony, Illaqa Shahdara, Delhi- 110092. He further relied upon the electricity bills Ex. DW-1/23 (Colly) which mentions the name and address of the consumer and Energisation Date as "Name: Chunni Lal; Billing address; Village Mandoli Lt. Sh. Meher Singh B-216, Gali No. 9 Khasra no. 605/9 Vill Mandoli/Vill Mandoli Delhi 110093 and Energisation date 12- 05-2009."
CS No. 786/2016 Page No.30 of 50iii. During the pendency of the present suit, Sh. Mahinder Singh was also impleaded as defendant No. 5 who claimed that Plaintiff and his brother had sold the suit land bearing Khasra no. 605/11, Village Mandoli, ad-measuring 120 sq. yards to one Smt. Subhbiri W/o Sh. Mangal Sain vide GPA, Agreement and registered receipt all dated 18.02.1982 which are Ex. DW2/1 to DW-2/3 respectively and thereafter, Smt. Sukhbiri further sold this property to one Smt. Ram Sri W/o Sh. Harsaran vide GPA, Agreement to sell and Receipt all dated 28 th April, 1987 which are Ex. DW2/4 to DW-2/6 respectively and Smt. Ram Sri further transferred this property to her son/ defendant no. 5 vide GPA and agreement to sell dated 26.02.1996 Ex. DW2/7 (Colly). It is also claimed by the Defendant No. 5 that he is in possession of land occupied by him since 28/04/1987. It is note-worthy to mention here that document GPA Ex. DW-2/1 and Agreement Ex. DW-2/2 are incomplete documents and the defendant no. 5 never produced the complete original documents during trial.
iv. Neither the defendant No.1 nor defendant no. 5 have proved their documents relied upon by them i.e. Ex. DW-1/1 to DW-1/22 and DW-2/1 to DW-2/7, in accordance with law. Moreover, the said documents do not create any right, title or interest in the suit property as well as property on Khasra no. 605/9. The defendant no. 5 has not produced the complete document Ex. DW2-1 and DW-2/2 despite objection raised. The Defendant no. 5 has not examined Smt. Sukhbiri to establish the CS No. 786/2016 Page No.31 of 50 sale transaction between her and plaintiff and his brother and she was put into the possession of the land on 18/02/1982 despite the fact that she is alive as stated by DW-2 during his cross- examination. The defendant no. 5 has also not produce any document to show that he and his family was in possession of the land occupied by him since 1987. The Defendant No. 5 has not produced any independent and reliable evidence which can establish that the defendant no. 5 and his family was in possession of the land/property occupied by him since 1987. The Defendant No. 1 also does not produce any document to prove the possession of Sh. Ram Dass, his wife and children, Sh. Sunder Lal, Sh. Tula Ram and Sh. Bhagmal Singh over the suit land since 1982. The Electricity bill Ex. DW-1/23 (Colly) mention date of energisation as 12/05/2009. The Defendant No. 1 has not produced any document to show that he or the person from whom he is claiming title and possession over the suit land, was in possession of the suit land prior to 12/05/2009.
v. The Plaintiff to prove the fact of trespassing into the suit property by Defendant no. 1 on 19/08/2011 or on 27/08/2011, only relied upon the complaints dated 30/08/2011 given to DCP (North-East, Delhi and Deputy Commissioner, MCD, South Zone, Shahdara, Delhi however, the Plaintiff has not called any official from the offices of DCP North-East and Deputy Commissioner, MCD, South Zone, Shahdara, Delhi to prove the receipt of the said complaint. The Complaint dated 30/08/2011 CS No. 786/2016 Page No.32 of 50 Ex.PW-1/7 is not accompanied with any postal receipt or that does not bear the receiving/ acknowledgment. The Plaintiff has not filed any documentary evidence to show that the complaint Ex. PW-1/7 was ever sent/ given by plaintiff to the concerned office for necessary action. The Plaintiff has failed to prove the said complaint Ex. PW-1/7 in accordance with law. The Complaint Ex.PW-1/8 sent to Deputy Commissioner, MCD, South Zone, Shahdara, Delhi does not bear the receipt/ acknowledgment number which vide the said complaint was received and entered into the record of Defendant No. 4. The Defendant No. 4 has denied receipt of any complaint to their office. The Plaintiff has not filed any documentary evidence to show that the complaint Ex. PW-1/8 was sent/given by plaintiff to the concerned office for necessary action. The Plaintiff has also failed to prove the complaint Ex. PW-1/8 in accordance with law. The Plaintiff has not filed any photograph showing the demolition of backside of the wall or construction in the suit land by defendant no. 1 on 19/08/2011 and 27/08/2011. The plaintiff has also not examined any neighbour or resident of the same vicinity in support of his case particularly when the plaintiff is resident of the same Village and residing there more than 45 years. The Plaintiff has also not produced any cogent, reliable and independent evidence to show that Defendant no. 1 has broken the back side wall and trespassed into the suit land/property on 19/08/2011 or 27/08/2011.
CS No. 786/2016 Page No.33 of 50vi. However, it is admitted fact that the suit land i.e. Khasra No. 605/11 was allotted to the father of plaintiff under 20 point programme. It is also not in dispute that as the terms of allotment under 20 point programme, the allottee has no right to further transfer the allotted land. The Defendant no. 1/ DW-1 during his cross-examination recorded on dated 29/05/2023 has deposed the plot no. 605/9, plot no. 605/10, plot no. 605/11 were sliced from Gaon Sabha land and subsequently allotted to weaker sections of the society and father of plaintiff was also allotted a land under weaker sections of the society. Perusing the record and pleading of the parties, it can be gathered that khasra no. 605/09 ad- measuring 120 sq. yards was also allotted under 20 point programme to one Khurshed.
vii. As per the SDM report Ex. DW-1/26 and stand of defendant no. 4, defendant No. 1 is in possession of portion ad- measuring 70 sq. yards of land bearing Khasra no. 605/11, Village Mandoli, Delhi. As per the SDM report Ex. DW-1/26, the defendant no. 5 is in possession of the land bearing Khasra no. 605/09, Village Mandoli, Delhi. The defendant no.5 claimed that he is in possession of land/ property ad-measuring 120 sq. yards. None of the parties have disputed the report of SDM Ex. DW- 1/26 and the fact mentioned in it after making enquiry at the root level. It is also not in dispute that Land of Khasra No. 605/9 and 605/11 was allotted to Khurshed and Rafu respectively under 20 point programme.
CS No. 786/2016 Page No.34 of 50viii. The main purpose of allotment of the land to landless persons under 20 point programme is that they are able to make use of the allotted land themselves and earn their livelihood and purpose was not to allot the land to the landless persons to enable them to sell it further. The Hon'ble Supreme Court of India in Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Barde, 1995 Supp. (2) SCC 549 held as "It is seen that prior permission for alienation of the land was a condition precedent. Before permission is given, the Competent Authority is enjoined, by operation of Article 46 of the Constitution, to enquire whether such alienation is void under law or violates provisions of the Constitution and whether permission could be legitimately given. In that behalf, the Competent Authority is enjoined to look to the nature of the property, subject matter of the proposed conveyance and pre-existing rights flowing thereunder and whether such alienations or encumbrances violates provisions of the Constitution or the law. If the answer is in the positive, then without any further enquiry the permission straightaway would be rejected. Even in case the permission is granted, it would be decided on the anvil of the relevant provisions of the constitution and the law. In this case, the authorities, though had not adverted to the aspect of the matter, broadly refused permission on the ground that the assigned land cannot be permitted to be sold pr converted to non-agricultural use. The action refusing permission, therefore, is in consonance with the constitutional scheme in Part IV of the Directive Principles. The agreement is, CS No. 786/2016 Page No.35 of 50 therefore, void under Section 23 of the Contract Act is opposed to public policy, vide judgment in Delhi Transport Corpn. V D.T.C. Mazdoor Congress by one of us Ramaswamy, J., with whom Sawant and RA, JJ, agreed by separate but concurring judgment and the permission was rightly refused to be given for alienation. The possession is unlawful. Section 53-A of Transfer of Property Act is not attracted. The appellant's possession continues to be unlawful and he is not entitled to any improvement made on the lands. The Collector is directed to resume the lands immediately and assigned the same to the legal representative of first respondent, if found eligible or to any other eligible tribal."
ix. The mandate of the Hon'ble Supreme Court in the afore- said judgment was that such a grant to the landless persons was for their economic upliftment and thus sale by such persons would not be permissible as it would defeat the very purpose of grant of land to such landless persons. Admittedly, the Defendant no. 1 and 5 are claiming their right over the suit land as well the land on khasra no. 605/9 which was allotted to Rafu and Khurshed under 20 point programme, therefore, the documents on the basis of which they are claiming their rights, title and interest on the suit land and land on Khasra No. 605/9 are void in view of the provision Section 23 of the Contract Act and law laid down by the Hon'ble Supreme Court in the above-mentioned judgment and their possession of the suit land as well land on CS No. 786/2016 Page No.36 of 50 Khasra No. 605/9 are unlawful and they are mere trespasser and un-authorized occupants.
x. In view of the fact and circumstances of the case, considering the material on record, above observation and law laid down by the Hon'ble Supreme Court, the possession of the defendant no. 1 on the suit land (claiming to be land on Khasra no. 605/09) and possession of defendant no. 5 on the land of khasra no. 605/09 (claiming to be land of Khasra no. 605/11) are unlawful and they are trespasser and un-authorized occupants on the said land.
xi. As observed above, the Plaintiff has failed to produce any cogent, reliable and independent evidence to prove that on 19/08/2011 and 27/08/2011, the defendant no. 1 broke the backside wall and trespassed into the suit land and started construction over it, however, the possession of the defendant no. 1 on the portion of the suit land (stated to be Khasra no. 605/9) and possession of the defendant no. 5 on the land of Khasra No. 605/9 (stated to be Khasra No. 605/11) is unauthorized and unlawful as observed above and therefore, any construction over the said lands is also illegal and unauthorized because the same is against the public interest and public policy. It is noteworthy to mention here that the Ld. Counsel for the defendant no. 4 on instruction has stated that the construction on the suit land is without any sanctioned plan and the defendant no. 4 shall take CS No. 786/2016 Page No.37 of 50 appropriate legal action against unauthorized construction. It is a prerogative of the State and its functionaries to take appropriate legal action against the unauthorized possession as well unauthorized construction over the land which is allotted by the State to the landless people for their welfare and livelihood under a scheme to achieve the goal enshrined in the Constitution of India, therefore, this Court is granting liberty to the concerned department of the Government to take legal action against the unauthorized occupancy of defendants No. 1 and 5 over the land on Khasra No. 605/9 and Khasra No. 605/11, Village Mandoli, Delhi and also against the unauthorized construction over the public land i.e. Khasra No. 605/9 and 605/11, Village Mandoli, Delhi, in accordance with law. It is made clear that because the plaintiff has not produced any cogent and reliable evidence to substantiate the fact that the defendant no. 1 has broken the backside wall and trespassed into the portion of suit land on 19/08/2011 and 27/08/2011, therefore, this Court is not inclined to grant any relief of mandatory injunction in favour of plaintiff and against defendants, however, the Competent Authorities shall be at liberty to take appropriate legal action in respect to the Khasra No. 605/9 and Khasra No. 605/11, Village Mandoli, Delhi in accordance with law.
xii. Issue No. ii, iii, iv and x are accordingly decided.
CS No. 786/2016 Page No.38 of 5019. The Issue No. v and vi are taken up together for determination.
ISSUE No. v:- Whether the plaintiff has not approached the court with clean hands? OPD AND ISSUE No. vi:- Whether the suit of the plaintiff is barred by limitation? OPD i. The onus to prove these issues is upon the defendants No. 1 and
5. ii. Article 64 of the Limitation Act, 1963 provide 12 years period from the date of dispossession to claim possession of immovable property based on previous possession and not title, when the plaintiff while in possession of the property has been dispossessed. Article 65 of the Limitation Act, 1963 provide 12 years period when the possession of the defendant becomes adverse to the plaintiff to claim possession for immovable property or any interest therein based on title.
iii. The Plaintiff, by way of present suit, is claiming possession of the suit property i.e. Khasra No. 605/11, Village Mandoli, Delhi pleading that the suit property was allotted to his father under 20 point programme and after his death, his name and name of his brother was entered into the record being allottees on 24/06/1993 and in the month of January/ February, 1993 they constructed boundary wall and put their gate on the suit property. It is further pleaded that on 19/08/2011 the Defendant CS No. 786/2016 Page No.39 of 50 No. 1 had broken the backside wall of suit property and started construction on the suit property, however, police was called and Defendant No. 1 gave his statement to police that he will not construct the suit property further but on 27/08/2011, the Defendant No. 1 again started construction over the suit property and dispossessed the plaintiff from the suit property.
iv. As observed above, the possession of the Defendant No. 1 and 5 over the land on khasra no. 605/11 (claiming to be khasra no. 605/9) and Khasra 605/09 (claiming to khasra no. 605/11) respectively is illegal and the defendant No. 1 and 5 have also failed to prove their possession or possession of the persons from whom they claim right to be in possession against plaintiff since 1982, however, even thereafter this Court is not inclined to believe the version of the plaintiff that he was dispossessed from the suit property by defendant no. 1 on 27/08/2011 and he was in possession of the suit property since the date of allotment because of the reasons mentioned below:-
A. Firstly, the Plaintiff has failed to prove his complaints Ex.
PW-1/7 and PW-1/8 in accordance with law, as observed above.
B. Secondly, no independent, cogent and reliable evidence has been led by the plaintiff to show that he was in possession of the suit property/ land on khasra no. 605/11 since 1982. During cross-examination of PW-1 recorded on 11/12/2017, he deposed that "It is correct that I do not have any documentary proof to show my possession of the CS No. 786/2016 Page No.40 of 50 suit property since 1982 till date." The plaintiff has also not produced any corroborated evidence to show his possession on the suit property since 1982.
C. The Plaintiff has also not produced any reliable evidence to establish that he has constructed the boundary wall around the suit property in the year 1992-93. It is also noteworthy to mention here that the Legal Notice Ex. PW- 1/3, Complaint Ex. PW-1/7, Complaint Ex. PW-1/8 and complaint filed before Ld. MM- Mark-C are also silent about the factum of construction of boundary wall by Plaintiff in the year 1992-93. The said contention was firstly raised by the plaintiff in the plaint prior to that the Plaintiff never pleaded the said fact which also create doubts in the mind of the Court to believe the said version of Plaintiff as true, particularly when plaintiff has not produced any evidence to prove the said version. The version of the plaintiff that he has constructed boundary wall around the suit property is a mere statement without evidence therefore, the testimony of plaintiff is found to be unreliable.
D. The plaintiff in his original plaint, initially claimed the possession of the land Khasra No. 605/11 ad-measuring 70 sq. yards, however, later on by way of amendment, the plaintiff claimed the possession of suit land/property ad- measuring 120 sq. yards. This Court has noted that the Plaintiff moved the application under Order VI Rule 17 of CS No. 786/2016 Page No.41 of 50 CPC claiming area of 120 sq. yards of the suit property only on the version of Defendant No. 5 who claims to be in possession of land ad-measuring 120 sq. yards in Khasra No. 605/11 (which is actually Khasra No. 605/9) and not on his own accord particularly when the Khatuni Mark-A filed by the plaintiff along-with original plaint, reflects the area of land on Khasra No. 605/11 allotted to Rafu was ad- measuring 120 sq. yards (0-2-8 i.e. 2.8 biswa).
E. This Court has also noted that the plaintiff has filed one document (claiming to be rejection order passed by Sub- registrar) along-with original plaint, however, the plaintiff has not marked this document during his examination but because the same has been filed by the plaintiff, therefore, the same can be looked into. The plaintiff pleads and deposed that he has applied for N.O.C. in the office of the Competent Authority to sell the land of Khasra No. 605/11 but on 27.06.2011 he has obtained a rejection order thereby confirming that the suit property is not subject to sale. By perusing the said document, it reveals that the plaintiff has applied for NOC for only 70 sq. yards and not for 120 sq. yards. The plaintiff in original plaint also claims the possession of 70 sq. yards of the suit property and not 120 sq. yards. It is noteworthy to mention that the address of the plaintiff mentioned in memo of parties is of the same Village i.e. Village Mandoli, where the suit property is situated. It has also come in evidence (cross-CS No. 786/2016 Page No.42 of 50
examination of PW-1) that Plaintiff does not know the area of the suit property in possession of defendant no. 1.
F. The report Ex. DW-1/26 and written statement filed by Defendant No. 4 has specifically mentioned the area of the property of Khasra No. 605/11 is 70 sq. yards in which the defendant no. 1 is in possession. It is note-worthy to mention here that plaintiff has not disputed the report Ex. DW-1/26 which was called at the instance of the Court and also the version of Defendant No. 4 in this regard. The Plaintiff has not averred anything about the area of 50 sq. yards of Khasra no. 605/11 allotted to Rafu which clearly is a material fact. The entire plaint is silent about the said area of 50 sq. yards of Khasra no. 605/11 which is astonishing. The Plaintiff is residing in the same Village from a long time where the suit property is situated and the plaintiff is also having other properties in the same Village therefore, it cannot be believed that the Plaintiff is not having the knowledge about the land area 50 sq. yards of Khasra No. 605/11 and in whose possession, it is at present and at the time of filing the present suit. The Plaintiff was having the knowledge before filing of the present suit that the suit property which is in possession of the defendant no. 1 is 70 sq. yards and that is why he applied for NOC before Competent Authority mentioning the area of suit property as 70 sq. yards and not 120 sq. yards. The original plaint also mentions the area of suit property as 70 sq. CS No. 786/2016 Page No.43 of 50 yards. The act of plaintiff initially for claiming only 70 sq. yards portion of Khasra No. 605/11 is highly improbable and even thereafter, the amendment was sought at the instance of defendant No. 5 and not on his own instance. It clearly shows that the plaintiff is not in possession of the suit property since long time and that is why he is unaware about the measurement, actual location and size of the suit property. Considering the entire factual matrix and material on record, this Court is of the opinion that the Plaintiff has suppressed the material fact from this Court and has not approached the Court with clean hands, therefore, the Plaintiff is not entitled for any relief from this Court.
G. The material on record clearly infers that the plaintiff has parted with the possession of the suit property i.e. Khasra no.605/11, Village Mandoli, Delhi even prior to 19.08.2011.
v. However, the defendant no. 1 and 5 have failed to discharge their onus in respect to the issue of limitation but the plaintiff has also not produced any cogent and reliable evidence to establish his dispossession from the suit property on 27/08/2011 and his possession over the suit property since 1982. Because the plaintiff has not approached the Court with clean hands and has suppressed the material fact, therefore, the Issue no. v is decided in favour of defendant no. 1 and 5 and Issue No. vi is decided against the defendant no. 1 and 5.
CS No. 786/2016 Page No.44 of 50vi. In view of the above observation, Issue No. v and vi are accordingly decided.
20. ISSUE NO. vii:- Whether the suit is bad for non-joinder of necessary parties? OPD i. The Defendant No. 1 and 5 have taken objection in their written statement that Gaon Sabha is the necessary party to the present suit as the suit land was allotted by Gaon Sabha to Rafu, father of plaintiff, under 20 point programme and Gaon Sabha is the owner of the suit land. It is also argued that the Ld. Counsel for the plaintiff during the cross-examination of DW-2 on dated 11/01/2024 has also put the suggestion that the suit land is owned by Gram Sabha and therefore, the present suit is bad for non- joinder of necessary party i.e. owner of the suit property. It is further argued by the Ld. Counsel for the Defendant No.1 and 5 that Gaon Sabha is the necessary party and no effective decree can be passed in its absence.
ii. It is the case of the plaintiff that he was in possession of the suit land and on 19/08/2011, the defendant no. 1 broken the behind wall of the suit property and started raising illegal construction and when police were called and matter reached to the police station Harsh Vihar, where defendant no. 1 gave his statement before ASI Sh. Bhola Ram that he will not raise any construction in the suit property but again on 27/08/2011 the defendant no. 1 started raising illegal construction in the suit CS No. 786/2016 Page No.45 of 50 property by illegally trespassing in the suit property from behind already broken wall.
iii. Section 5 of the Specific Relief Act, 1963 provides that a person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908. When a person is entitled to the possession of specific immovable property, he can recover the same by filing a suit as provided by C.P.C. Any person who was in possession but has been dispossessed, whether or not he is owner, may bring a suit, provided he had jurisdical or legal possession. The word "entitled to the possession" means having a right to possession. There may be title by contract, inheritance, prescription or even by possession.
iv. The Plaintiff by way of present suit is claiming possession of the suit land from the defendant no. 1 and 5 on the ground that he has been dispossessed by the defendant no. 1. The defendant No. 5 also claiming his title from Plaintiff and his brother, however, he is not in possession of the suit land. As per the report Ex. DW-1/26, defendant no. 5 is in possession of a land ad- measuring 120 sq. yards falling in Khasra No. 605/9 and the Defendant No. 1 who is claiming to be the owner in possession of land falling under Khasra No. 605/9 ad-measuring 61 sq. yards, actually is in possession of a land area measuring 70 sq. yards which falls under Khasra No. 605/11.
v. However, the Plaintiff, being lessee in suit land can alone maintain the suit for possession against defendant no. 1 to CS No. 786/2016 Page No.46 of 50 recover the possession of the suit land on the ground that he has been dispossessed from the suit land by Defendant no. 1 because a lessee/ tenant dispossessed by a stranger, can maintain a suit for recovery of possession of an immovable property against the said stranger/ trespasser but because the plaintiff has failed to establish that he was dispossessed from the suit property by defendant no. 1 on 27/08/2011 and factually the Defendant No. 1 is in possession of only 70 sq. yards of the land on Khasra No. 605/11 and not in 120 sq. yards and also the plaintiff has not disclosed the name of the person who is occupying the rest 50 sq. yards portion or that has not disclosed the status of portion measuring 50 sq. yards. As observed above, the plaintiff has not approached this Court with clean hands and has also failed to establish his possession over the land on khasra no. 605/11 since 1982 therefore, this Court is of the opinion that the plaintiff has misused the concession/ grant given by the Government under 20 point programme.
vi. It is not the case of plaintiff that after allotment of the land of Khasra no. 605/11, he and his brother constructed the house in it and started living in it. Even if the version of plaintiff be considered as true that he was in possession since the date of allotment till 27/08/2011 then also he has not constructed the house or building on it and further not started living with his family. The aim and purpose of 20 point programme was to grant land to landless person so that they can live there with dignity.
CS No. 786/2016 Page No.47 of 50The Plaintiff by not constructing the said plot for his residence has also breached the condition of allotment.
vii. By perusing the material on record this Court is of the opinion that the plaintiff is not in possession of the land of Khasra No. 605/11, Village Mandoli from last several years, even before filing of the present suit but even thereafter, the plaintiff has not apprised this fact to Gaon Sabha. Considering the factual matrix and material on record, the defendant No. 1 and 5 are unauthorizedly enjoying the land owned by the Gaon Sabha, therefore, the Gaon Sabha, being the Bhumidhar/owner/ landlord of the land is a necessary party to the present suit also because the legal possession of the lands occupied by the Defendant no. 1 and defendant no. 5 are still with the Gaon Sabha.
viii. The Plaintiff by way of amendment, amended his claim of possession for the portion of suit land Khasra No. 605/11 from 70 sq. yards to 120 sq. yards, therefore, the person who is occupying the portion of 50 sq. yards of Khasra No. 605/11 is also necessary party to the present suit.
ix. In view of the above observation, this Court concludes that Gaon Sabha and the person who is occupying the portion of 50 sq. yards of Khara No. 605/11 are the necessary party to the present suit because no effective decree can be passed in the present matter in their absence.
x. Issue No. vii is decided accordingly in favour of Defendant no.
1 and 5.
CS No. 786/2016 Page No.48 of 5021. Issue no. viii and ix are taken up together for determination.
ISSUE No. viii:- Whether the plaintiff is entitled for decree of possession of the suit property, as prayed? OPP AND ISSUE NO. ix:- Whether the plaintiff is entitled for decree of permanent injunction, as prayed? OPP i. The Plaintiff has not produced the patta and LR-37 receipt issued by the Competent Authority at the time of allotment, which is a proof of possession as well as allotment. The Plaintiff has also failed to prove his case by leading cogent, reliable and independent evidence and has also not approached this Court with clean hands and the present suit is also bad for non-joinder of necessary party, as observed above, therefore, the Plaintiff is not entitled for the decree of possession of the suit property.
ii. Because the plaintiff is not entitled for the main relief of possession of the suit property claimed in the present suit, therefore, he is also not entitled for the consequential relief of permanent injunction in the present matter.
iii. The Issue No. viii and ix are according decided against the plaintiff.
22. Final Judgment:-
i. The suit of the plaintiff for possession, permanent injunction and mandatory injunction is hereby dismissed.CS No. 786/2016 Page No.49 of 50
ii. Copy of the present judgment be sent to (1) The Office of Hon'ble Lt. Governor, Delhi (2) The office of Government of N.C.T. of Delhi, Revenue Department, 5 Shamnath Marg, Delhi- 110054, (2) The office of Government of National Capital Territory of Delhi, Revenue Department. (Panchayat Unit), Room No. 11-12, Old Civil Supplies Building, Tis Hazari Courts, Delhi- 110054 with the liberty to the Competent Authority to take appropriate legal action against the defendant no. 1 and 5, in accordance with law, as mandated by the Hon'ble Supreme Court of India in the case titled as " Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Barde", 1995 Supp. (2) SCC 549.
23. The present suit is hereby dismissed on merits and accordingly disposed of. Parties shall bear their respective cost.
24. Decree sheet be prepared accordingly.
25. File be consigned to record room after due compliance.
Announced in the open Court on 26th July, 2024 (Deepanker Mohan) District Judge-04 Shahdara District/KKD Courts/Delhi 26.07.2024 CS No. 786/2016 Page No.50 of 50