Delhi District Court
Savitri Devi vs Ramesh Anr on 12 July, 2024
IN THE COURT OF MS. SHILPI M JAIN : DISTRICT JUDGE-05,
SOUTH WEST DISTRICT, DWARKA COURTS
NEW DELHI
CS No. 16113/16
CNR No. DLSW010008512014
IN THE MATTER OF:
Smt. Savitri Devi (Since Deceased)
Through her Legal Heirs
(i) Sh. Sunil Dutt Sharma (Son)
(ii) Sh. Anil Kumar(Son)
(iii) Sh. Sanjay Vats(Son)
(iv) Sh. Vinod Kumar Sharma (Son)
(v) Sh. Ganga Dutt Sharma (Son)
All S/o of Late Jagannath & Late Savitri Devi
R/o V.P.O. Jhatikara, New Delhi.
(vi) Smt. Sunita (married Daughter)
D/o Late Jagannath & Late Savitri Devi
W/o Sh. Sanjay Vashisht
R/o H.No. 137, V.P.O. Smalkha,
New Delhi.
Through their S.P.A . ......... Plaintiffs
Versus
1. Shri Ramesh Kumar
2. Shri Prem Sukh
Both S/o Late Chander Bhan
CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 1 of 36
3. Shri Devinder
4. Shri Rohit
Both S/o Shri Ramesh Kumar
5. Shri Rahul
S/o Shri Prem Sukh
All R/o Village and Post Office Jhatikra
New Delhi-110043.
........Defendants
Date of Institution : 05.11.2014
Date of Arguments : 30.04.2024
Date of Judgment : 12.07.2024
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
INDEX FACTUAL BACKGROUND : Page No. 03 ISSUES : Page No. 06 EVIDENCE GIVEN BY PARTIES : Page No. 07 SUBMISSIONS OF THE PARTIES : Page No. 18 ISSUEWISE ANALYSIS & FINDINGS : Page No. 22 CONCLUSION : Page No. 34
1. Present suit for seeking the relief of Permanent Injunction filed by the plaintiff against the defendants thereby restraining them from dispossessing and interfering in the peaceful possession of the plaintiff in the suit plot i.e. 1150 square yards of plot situated in Khasra no. 84 at Old Lal Dora of Village Jhatikra, New Delhi (hereinafter referred to as 'Suit Property'). For the purpose of clarification, pedigree of parties to the dispute is reproduced herein below:
CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 2 of 36 CHANDER BHAN SARBATI (IST WIFE) BASANTI (2ND WIFE) SAVITRI (PLAINTIFF) SINCE RAMESH PREMSUKH RAGHUNATH (DIED JAGANNTH (SON) NIRMALA URMILA DECEASED (DEFENDANT NO. 1) (DEFENDANT NO. 2) IN 1978) SUNIL (SON) LR (i) OF DECEASED SANTOSH (WIFE) ASHA (WIFE) PLIANTIFF SUNITA (DAUGHTER) LR (vi) OF SAROJ BALA (WIFE) RAHUL (SON) (DEFENDANT NO. 5) DECEASED PLIANTIFF SINCE DECEEASED ANIL (SON) LR (ii) OF DECEASED JYOTI (DAUGHTER) PRIYA (DAUGHTER) PLIANTIFF SANJAY (SON) LR (iii) OF DECEASED MEENU (DAUGHTER) DHEERAJ (SON) PLIANTIFF VINOD (SON) LR (iv) OF DECEASED DEVINDER (SON) (DEFENDANT NO. 3) PLIANTIFF GANGA DUTT (SON) LR (v) OF ROHIT (SON) (DEFENDANT NO. 4) DECEASED PLIANTIFF SHAILESH (SON) SANGEETA (DAUGHTER) FACTUAL BACKROUND:
2. Briefly stated, plaintiff was married to Shri Jagannath (since deceased) who was the progeny of the late Shri Chander Bhan from his first marriage and the defendants herein include the successors of the late Shri Chander Bhan borne out of wedlock with his second wife Smt. Basanti. While the defendant No.1 and 2 are the sons of Smt. Basanti, the rest are the successors and extended family of Smt. Basanti. Late Shri Chander Bhan during his life time possessed and owned some amount of agricultural land in the abadi deh of the revenue estate of Village Jhatikra.
CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 3 of 36 After having sold most of his land in the Year 1996, the Late Shri Chander Bhan was primarily left with two plots i.e. one in Khasra No. 117/4 forming part of the New Lal Dora measuring 750 sq. Yards and another measuring 500 sq. Yards situated in the Old Lal Dora. It is averred that, the plot measuring 500 Square Yards was adjacent to a property measuring 650 square yards forming part of Khasra No. 84 in the Old Lal Dora and possessed exclusively since time immemorial by Smt. Savitri Devi i.e. the plaintiff herein.
3. It is further averred that, in lieu of the fact that late Sh. Chander Bhan had two extended families out of wedlock, in order to maintain peace and tranquility amongst future generations an oral family arrangement was entered into between the families of Smt. Basanti Devi and the plaintiff, taken place in the year 1996 it was mutually agreed amongst family members that the defendant No.1 and 2 would be entitled to share and possession of 750 square yards in the new lal dora forming part of Khasra No. 117/4 and the plot measuring 500 square yards situated in the old Lal Dora would be possessed by the plaintiff and her family. Plaintiff is as of today in a total possession of 1150 square yards of plot in the abadi deh lal dora area of Village Jhatikra, Delhi.
4. It is further averred that, the plaintiff sought the issuance of a Lal Dora Certificate in her favor vide application dated 29.11.2013 instituted before the Sub Divisional Magistrate Kapashera and Learned SDM proceeded to issue directions to the Tehsildar, Halqa Patwari and other revenue officials demanding the status report regarding the possession and occupation of the aforesaid land. It is further averred that, a detailed inquiry regarding the status of the aforesaid land was launched by the concerned Revenue Officials resulting in the filing of report dated CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 4 of 36 21.02.2014 before the SDM by Halqa Patwari and said report categorically points out to the possession and occupation of the Plaintiff over the aforesaid land for a long period of time and same has been affirmed by the defendant no.3 and 5 themselves.
5. It is further averred that, thereafter defendants chose to file independent objections in the month of August, 2014 before the Court of SDM objecting to the issuance of a Lal Dora Certificate in favor of the Plaintiff. Moreover they involved the old and illiterate Basanti Devi in their greed indirectly filing another application through her before the Court of SDM for the grant of Lal Dora Certificate with respect to the same plot of land. Hence, the present suit filed.
6. The summons of the suit were issued to the defendants and written statement was filed on behalf of defendants, wherein it is averred that, the suit of the plaintiff is not maintainable as the plaintiff suppressed the material facts. It is averred that, Sh. Chander Bhan was in actual physical possession of the land ad-measuring 500 Sq. yds. i.e. the suit property vide order dated 10.4.1991 and Sh. Tulsi Ram, Sh. Sukh Lal, Sh. Har Nand, Sh. Tek Ram and Ram Avtar were also claiming to be in possession of the property and threats Chander Bhan of dispossession, hence all were restrained from interfere in the possession of Sh. Chander Bhan. Even in order to ascertain the actual physical possession, the than Court also appointed Local Commissioner who confirmed the actual physical possession of Sh. Chander Bhan.
7. It is averred that, the plaintiff has also concealed the facts that even on 24.2.1993, Sh. Chander Bhan executed a Will duly registered qua CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 5 of 36 the immovable property which was also filed before the court of law in his life time during the pendency of appeal in which name of the plaintiff even did not find mentioned in it. As such she is not the legal heirs of Chander Bhan. Similarly since the appellant Sh. Tulsi Ram etc. were the villagers residing in the neighborhood, hence after death of Chander Bhan on 12.3.2003 they moved an application under Order XXII for bringing the legal heirs of Chander Bhan on record but even in that application the name of the plaintiff was not mentioned she is not the legal heirs of Sh. Chander Bhan as alleged by her.
8. It is further averred that, Sh. Chander Bhan even before getting marriage given all the share and severed all relationship with Sh. Jagannath and as such he was having no concern with the property possessed by Sh. Chander Bhan as the same was his self acquired property for which he has already executed registered Will. Hence neither the question of partition arose nor handing over possession of any property arose at all. It is further averred that, the suit of the plaintiff is also not maintainable in view of the provisions laid down under Section 41 (1) (h) of Specific Relief Act as no coparcener in the family can file a suit for injunction against the karta of the family or the other co sharer without the partition of the property, hence on this ground alone the suit of the plaintiff deserves to be dismissed.
9. Replication to the written statement of defendants was filed on behalf of the plaintiff, thereby, reiterating and reaffirming the contents of the plaint.
ISSUES CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 6 of 36
10. On the basis of pleadings of parties, following issues were framed on 25.02.2016 :
1. Whether the plaintiff has not approached the court with clean hands in view of preliminary objection no. 1, 2 and 9 of the WS? OPD 1 to
5.
2. Whether the suit is not maintainable in view of preliminary objection no. 3 and 4 of the WS? OPD 1 to 5.
3. Whether the suit is bad for non-joinder/mis-joinder of parties? OPD 1 to 5.
4. Whether the suit has not been valued properly for the purpose of court fee and jurisdiction? OPD 1 to 5.
5. Whether the suit is not maintainable in the present form in view of preliminary objection no. 8 and 10 of the WS? OPD 1 to 5.
6. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in prayer (a) of the plaint? OPP
7. Relief.
EVIDENCE GIVEN BY THE PARTIES :
11. In support of their case, plaintiffs examined total thirteen (13) witnesses in all. PW1 is Anil Kumar S/o Late Mr. Jagannath tendered his evidence by way of affidavit Ex. PW1/A and has relied upon following documents:
S.N PARTICULAR OF EXHIBIT/ REMARKS O DOCUMENTS MARK 1 The death certificate of Ex. PW-1/1 Nil plaintiff Smt. Savitri Devi 2 The family tree of the Ex. PW1/2. parties to the suit. CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 7 of 36 3 The site plan. Ex. PW-1/3 Nil 4 The certified copy of the Mark A De-exhibited application dated (earlier Exhibited 29.11.2013 filed before as Ex. PW-1/4 in the Sub Divisional Ex. PW-1/A) Magistrate, for Lal Dora Certificate. 5 The certified copy of the Mark B De-exhibited report of the Halqa (earlier Exhibited Patwari dated 21.02.2014. as Ex. PW-1/5 in Ex. PW-1/A) 6 The copy of the received Mark C De-exhibited copy of the complaint (earlier Exhibited dated 28.07.2014 (having as Ex. PW-1/6 in DD no. 59 B dated Ex. PW-1/A) 28.07.2014) made to the SHO PS Chhawla, copy of the received copy of the complaint dated 10.08.2014 (having DD no. 54 B dated 10.08.2014) made to the SHO PS Chhawla are collectively. 7 The copy of the Mark D De-exhibited objections filed by the (earlier Exhibited defendants on the Lal as Ex. PW-1/7in Dora Application of the Ex. PW-1/A) plaintiff. 8 The application for Lal Mark E De-exhibited Dora Certificate dated (earlier Exhibited 11.07.2014 filed by the as Ex. PW-1/8 in Smt. Basanti Devi before Ex. PW-1/A) the SDM. 9 The copy of the received Mark F De-exhibited copy of the complaint (earlier Exhibited dated 26.10.2014 made to as Ex. PW-1/9 in the SHO PS Chhawla Ex. PW-1/A) (having DD no. 24 B CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 8 of 36 dated 26.10.2014) and the copy of the received copy of the complaint dated 19.11.2014 made to the SHO PS Chhawla. 10 The application filed by Mark G De-exhibited the deceased plaintiff for (earlier Exhibited Lal Dora Certificate was as Ex. PW-1/10 in forwarded by the report of Ex. PW-1/A) Halka Patwari, Kanoongo and Tehsildar to the concerned SDM. The copy of the said report. 11 The copies of the Ex.PW-1/11 Nil electricity and water bill (colly) in the name of Mr. Vinod Kumar. 12 The photocopy of the Mark H De-exhibited eight photographs of the (earlier Exhibited suit plot. as Ex. PW-1/12A to 12 H in Ex. PW- 1/A)
12. PW-2 Sh. Vinod Kumar Sharma, S/o Late Mr. Jagannath has tendered his evidence by way of affidavit Ex. PW2/A and has relied upon following documents:
S.No Particular of documents Exhibit/ Mark Remarks 1 The copy of the SPA Ex. PW-2/1 Nil dated 03.10.2015.
Apart from the document Ex. PW-2/1, PW-2 has also relied upon the documents already exhibited in testimony of PW-1 and exhibited CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 9 of 36 as Ex. PW-1/1 to Ex. PW-1/3 & Ex. PW-1/11 and marked documents as Mark A to Mark H.
13. PW-3 Sh. Ravinder Kumar, Head Clerk, Delhi Jal Board, Office of Zonal Revenue Officer, South West-1, Kakrola Housing Complex, Old Palam Road, New Delhi, has brought the summoned record i.e. the record pertaining to Water Connection Number/K. No. 2232871113 in the name of Mr. Vinod Kumar Sharma, S/o Mr. Jagan Nath, R/o Pole No. 570, Jhatikra Village, New Delhi-110043. The attested copy of the record runs into five pages i.e. Photocopy of the Election I Card of Mr. Vinod Sharma, Indemnity Bond executed by Mr. Vinod Kumar Sharma (running into two pages), Electricity Bill in the name of Mr. Vinod Kumar Sharma and the latest Water Bill in the name of Mr. Vinod Kumar Sharma. The attested copy of the record along with covering letter of Mr. Ghanshyam Dass, Zonal Revenue Offider (SW-1) is collectively Ex. PW3/A (running into six pages).
14. PW-4 Sh. Ombir Singh, Panchayat Secretary, BDO Office, Najafgarh, New Delhi, has brought the summoned record i.e. the letter bearing no. 2212-2213 dated 20.01.2016 written to the SDM (KH), DC(S/W) Office, Kapashera, New Delhi-110037 by Mr. Rajeev Chhabra regarding status of Khasra no. 84, Village Jhatikra Reference Lal Dora Certificate to Mrs. Savitri Devi. The attested office copy of the said letter is Ex. PW 4/A. The attested copy of letter no. 798 dated 25.07.2014 written by Mr. Rajeev Chhabra, Block Development Officer (SW), Najafgarh, New Delhi- 110043 to the SDM (KH), Old Tax Terminal Building, Kapashera, Delhi- 110037 regarding status of Khasra no. 84, CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 10 of 36 Village Jhatikra, Refence - Lal Dora certificate to Mrs. Savitri Devi is Ex. PW 4/B.
15. PW-5 Sh. Giriraj Singh, Halqua Patwari, Office of SDM, Kapashera, New Delhi, has brought the summoned record i.e. attested copy of the report of the then Halqua Patwari dated 21.02.2014 signed by various villagers of Village Jhatikra accompanied by copies of eleven identity proofs the residents of Village Jhatikra. The attested copy of the report is Ex. PW5/A.
16. PW-6 Constable Surender Kumar, PIS no. 28105741, Belt No. 2854/SW, Reader to SHO PS Chhawla, PS Chhawla, New Delhi, has brought the summoned record i.e. original complaint register for the period 01.01.2014 to 31.12.2014, containing complaint no. 995 made by Mr. Anil Kumar S/o Mr. Jagnnath, R/o Village and Post Office Jhatikra against one Mr. Prem Sukh, S/o Mr. Chander, Rahul S/o Mr. Prem Sukh, Mr. Devender and Rohit S/o Mr. Ramesh Chand for giving threats to life, received vide DD no. 59 B dated 28.07.2014 and marked to SI Sunil Kumar. The photocopy of the relevant page of the complaint register is Ex. PW6/A (Original seen and returned). The complaint register also contains complaint no. 1063 made by Mr. Anil Kumar S/o Mr. Jagnnath, R/o Village and Post Office Jhatikra regarding demolition of boundary wall of his plot, received vide DD no. 54 B dated 10.08.2014 and marked to HC Chander Pal. The photocopy of the relevant page of the complaint register is Ex. PW6/B (Original seen and returned). The complaint register also contains complaint no. 1448 made by Mr. Anil Kumar S/o Mr. Jagnnath, R/o Village and Post Office Jhatikra regarding complaint against Mr. Ramesh Kumar, Mrs. Santosh W/o Ramesh, Mr. Davinder, Rohit, Shailesh CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 11 of 36 all sons of Mr. Ramesh Kumar, received vide DD no. 24 B dated 26.10.2014 and marked to SI Sunil. The photocopy of the relevant page of the complaint register is Ex. PW6/C (Original seen and returned). He has also brought the Roznamcha registers for the relevant period containing DD no. 59 B dated 28.07.2014, DD no. 54 B dated 10.08.2014 and DD no. 24 B dated 26.10.2014. The copies of the relevant pages of the register are Ex. PW6/D (Original seen and returned), Ex. PW6/E(Original seen and returned) and Ex. PW 6/F (Original seen and returned) respectively.
17. PW-7 Sh. Anil Kumar, Employee Code:- 2229, Judicial Assistant, Hon'ble High Court of Delhi has brought the summoned record i.e. Record of Writ Petition (Civil) bearing no. 1162 of 2016 titled "Ramesh Kumar and another vs. G. S. Jhatikra and others" filed on 09.02.2016 and Writ Petition (Civil) bearing No. 8956 of 2015 titled "Savitri Devi vs. GNCT of Delhi" filed on 16.09.2015. Writ Petition (Civil) bearing no. 1162 of 2016 titled "Ramesh Kumar and another vs. G. S. Jhatikra and others" has already been disposed off vide order dated 12.02.2016 passed by Hon'ble Mr. Justice A.K. Pathak and the Writ Petition (Civil) bearing No. 8956 of 2015 titled "Savitri Devi vs. GNCT of Delhi" is pending for 11.11.2016 before Hon'ble Ms. Justice Indermeet Kaur. The certified copy of the Memo of Parties dated 03.02.2016 (running into two pages) is Ex. PW7/A (Original seen and tallied from the record brought by the witness), certified copy of Index of Papers dated 03.02.2016 (running into five pages) is Ex. PW7/B (Original seen and tallied from the record brought by the witness), certified copy of Notice of Motion dated 03.02.2016 (running into one page only) is Ex. PW7/C (Original seen and tallied from the record brought by the witness), certified copy of Urgent Application dated 03.02.2016 (running into one page only) CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 12 of 36 is Ex. PW7/D (Original seen and tallied from the record brought by the witness), certified copy of Court Fee dated 03.02.2016 (running into one page) is Ex. PW7/E (Original seen and tallied from the record brought by the witness), certified copy of List of Dates and Events (running into thirteen pages) is Ex. PW7/F (Original seen and tallied from the record brought by the witness) and the certified copy of Writ Petition No. 1162 of 2016 titled "Ramesh Kumar and another vs. G. S. Jhatikra and others"
(running into twenty nine pages) is Ex. PW7/G (Original seen and tallied from the record brought by the witness).
18. PW-8 Sh. Vikrant Dagar, Employee Code: 2331, Judicial Assistant, Hon'ble High Court of Delhi has brought the summoned record i.e. Record of Writ Petition (Criminal) bearing no. 2717 of 2015 titled "Samir Mehta vs. State".
19. PW-9 Sh. Shish Pal, S/o Late Mr. Lal Singh Chauhan, Assistant Grade-II, BSES (Rajdhani Power Ltd.), Power House, Najafgarh, New Delhi, has brought the summoned record ie. Record of Connection (K) No. 8001192914, Contract Account No. 150962039, in the name of Mr. Vinod Kumar Sharma S/o Mr. Jagannath, Address:- House near Pole No. 570, Near Bus Stand Village Jhatikra, Najafgarh, New Delhi. The attested scanned copy of the application form for electricity connection in the name of Mr. Vinod Kumar Sharma is Ex. PW9/A (running into three pages), attested scanned copy of the Inspection Report is Ex. PW9/B (running into one page), attested scanned copy of the Indemnity Bond filed alongwith the application form is Ex. PW9/C (running into two pages), attested scanned copy of the affidavit of Mr. Vinod Kumar Sharma filed alongwith the application form is Ex. PW9/D (running into two pages), CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 13 of 36 attested scanned copy of the one side of passport and one side of Election I Card of Mr. Vinod Kumar Sharma is Ex. PW9/E (running into one page), attested scanned copy of the other side of passport and other side of Election I Card of Mr. Vinod Kumar Sharma is Ex. PW9/F (running into one page), attested scanned copy of the ration card of Mr. Jagannath Sharma is Ex. PW9/G (running into one page), attested scanned copy of the certificate issued by Mr. Pradeep Kumar, Councillor Ward No. 133, Chhawla (MCD) South Delhi Municipal Corporation is Ex. PW9/H (running into one page), the attested scanned copy of the affidavit of Mr. Vinod Kumar Sharma (running into two page) is mark A as the document is not properly and completely scanned, the attested scanned copy of the site inspection report (running into four pages) is Ex. PW9/1. He has also brought the attested scanned copy of the application filed with BSES by one Sh. Vinod Kumar Sharma. Alongwith the said application, Sh. Vinod Kumar Sharma had filed Indemnity Bond, affidavit as well as his voter I Card, ration card. The same are collectively exhibited as Ex.PW9/J. The original record is not traceable.
20. PW-10 Sh. Vinod Kumar, Judicial Assistant, Employee Code:-
26781288, Branch-Criminal-I, Delhi High Court, New Delhi has brought the summoned record i.e. file of Writ Petition Criminal 1727/2014 titled "Basanti Devi vs. State and another". The certified copy of the status report dated 04.11.2014 (running into two pages) filed by the SHO PS Chhawla in the Writ Petition Criminal 1727/2014 titled "Basanti Devi vs. State and another" is Ex.PW10/A (Original seen and verified from the original file of Writ Petition Criminal 1727/2014 titled "Basanti Devi vs. State and another"). The copy of certified copy of the Writ Petition Criminal 1727/2014 titled "Basanti Devi vs. State and another" (Running CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 14 of 36 into nineteen pages is Ex.PW10/B. (Original seen and verified from the original file of Writ Petition Criminal 1727/2014 titled "Basanti Devi vs. State and another").
21. PW-11 Sh.Ram Singh Meena, Assistant Finance Officer (BSES Rajdhani Power Limited), Power House, Najafgarh, New Delhi has brought the summoned record i.e. record of connection (Request No.8001192914, Contract A/C No.150962039) which is installed in the name of Sh. Vinod Kumar Sharma son of Sh. Jagan Nath at the address that is House Near Pole No.570 Near Bus Stand Village Jhatikara, New Delhi. Attested scanned copy of application form for electricity connection in the name of Sh. Vinod Kumar Sharma running into 3 pages is Ex.PW- 11/A (Original Seen and Returned). Attested scanned copy of inspection report is Ex.PW-11/B. Attested scanned copy of indemnity bond filed along with the application form running into 2 pages is Ex.PW-11/C. Attested scanned copy of affidavit of Sh. Vinod Kumar Sharma filed along with the application form running into 2 pages is Ex. PW-11/D. Attested scanned copy of passport and election 1 card of Sh.Vinod Kumar Sharma of one side is Ex.PW-11/E and attested scanned copy of other side of passport and Election I Card is Ex.PW-11/F. Attested scanned copy of ration card of Jagan Nath Sharma is Ex.PW-11/G. Attested scanned copy of certificate issued by Pardeep Kumar, councilor is Ex.PW-11/H. Attested scanned copy of site inspection report is Ex.PW-11/1.
22. PW-12 Sh.Ghanshyam, Junior Judicial Assistant, Record Room (Sessions), Tis Hazari Courts, Delhi has brought the summoned record i.e. record pertaining to RCA No.35/2003/91 titled as Tulsi Ram Vs. Chander Bhan bearing Goshwara No.127D decided on 17.12.2004 by CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 15 of 36 Hon'ble Court of Sh. Parveen Kumar, the then ADJ, Tis Hazari Courts. The certified copy of appeal, application under section 5 of Limitation Act, reply to the application u/s 5 of Limitation Act, application u/s XXII Rule 3 & 4 CPC, reply to this application on behalf of proposed LRs. Same are correct as per original file which he has brought in the court. Certified copies of appeal and these applications along with reply thereof are collectively exhibited as Ex. PW-12/A(24 pages) (Original file seen and returned).
23. PW-13 Sh. Ravinder Kumar, Bailiff, Office of LAC, South West, Kapashera, New Delhi has brought the summoned record i.e. file of case ID No.7204 (Case No.106/RA/KH/2014 titled as Sushil Kumar Vs. Satbir and others) under Section 86A DLR Act. Copy of the complete record is collectively exhibited as Ex.PW-13/A (OSR).
24. Thereafter, plaintiff closed its evidence and the matter was listed for defendant's evidence.
25. In support of their case, defendants examined total eight (8) witnesses in all. DW1 Sh. Prem Sukh S/o Sh. Chander Bhan i.e. defendant no.2 himself has tendered his evidence by way of affidavit Ex. DW1/A and has relied upon following documents i.e. copy of Will dated 24.02.1993, copy of application U/o XXII Rule 4 CPC and photocopies of photographs, which are marked as Mark A to Mark C respectively. He has been cross-examined at length by the Ld. Counsel for the plaintiff.
CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 16 of 36
26. DW-2 Sh.Yageshwar Dutt Sharma S/o Sh. Shiv Ram, R/o Village Jhatikara, Delhi has tendered his evidence by way of affidavit Ex. DW2/A. He has been cross-examined on behalf of the plaintiff.
27. DW-3 Sh. Narender Kumar, Civil Defence Volunteer from the office of Sub-Registrar, Basai Darapur, New Delhi was the summoned witness but has not brought the summoned record.
28. DW-4 Sh. Naveen Gandas, Record Keeper, Department of Delhi Archives, GNCTD, 18-A, Satsang Vihar Marg, Special Institution Area, New Delhi has brought the summoned record i.e. Will dated 24.02.1993 vide registration No. 8398, Book no. 3, Volume no. 1896, page nos. 105 to 106 executed by Sh. Chander Bhan s/o. Sh. Moti Ram in favour of Smt. Basanti Devi w/o. Sh. Chander Bhan, Sh. Jagganath, Sh. Ramesh Kumar and Sh. Prem Sukh before the Sub-Registrar-II, Janak Puri, New Delhi. He has also filed the copy of the aforesaid Will, same is Ex. DW4/1 (OSR).
29. DW-5 Sh. Satish Kumar, JJA, Record Room (Sessions), Tis Hazari Courts, Delhi and he has brought the requisite record of file bearing RCA No. 35/03/91 titled as Tulsi Ram Vs. Chander Bhan having goshwara no. 127 dated 17.12.2004. Copy of vakalatnma filed on behalf of Ramesh Kumar and Prem Sukh, being LRs of respondent no.1 Sh. Chander Bhan in the aforesaid appeal is Ex.DW-5/1 (OSR). Copy of order dated 21.10.2003 and copy of amended memo of parties in the aforesaid appeal are Ex. DW- 5/PX (OSR) and Ex.DW-5/PY (OSR).
30. DW-6 Sh. Satparkash, Patwari, Tehsil Kapashera, South-West District, Kapashera, Delhi has brought the requisite record case file CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 17 of 36 bearing suit no. 106/RA/KH/2014. From the file, he has place on record copy of complaint dated 18.08.2014 is Ex. DW6/1 (2 pages) (OSR) and copy of complaint bearing diary dated 22.03.2016 is Ex. DW-6/2 (2 pages) (OSR). He has also filed copy of notice dated 27.02.2016 which is Ex. DW-6/PX (OSR).
31. DW-7 Sh. Balakram, Extension Assistant (Agriculture)/ Panchayat Secretary, Office of BDO (South-West District), Najafgarh, Delhi has brought the requisite record i.e., complaints regarding plot situated within khasra no. 84, Lal Dora Abadi, Near Bus Stand, Village Jhatikara, New Delhi, against Sh. Ramesh and Sh. Prem Sukh and their children. Copy of the same are Ex.DW-7/1 (9 pages) (colly.), Ex. DW-7/2 (6 pages)(colly.) and Ex. DW-7/3 (3 pages) (colly.).
32. DW-8 Sh. Satya Parkash, Patwari, Office of SDM, Kapashera, New Delhi has brought the summoned record i.e. case file bearing no. 096254777 having page no. 1C to 222C (having subject-request for removal of illegal encroachment of Gaon Sabha land, Lal Dora, Kh. No. 84 of Village Jhatikra), copy of the same is Ex. DW-8/1 (colly.) (OSR).
33. Vide order dated 21.11.2022, DE stands closed. Thereafter, matter was fixed for final arguments.
ARGUMENTS HEARD ON BEHALF OF COUNSELS :
34. Ld. Counsel for the plaintiff submits that, plaintiff duly proved the entire case in his favour. Hence, present suit may be decreed as prayed. It is submitted that it is undisputed fact that the suit property falls under the old Lal Dora Abadi Deh area of Village Jhatikara and there is no CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 18 of 36 ownership proof that the persons residing there in the Old Lal Dora Abadi Deh area of the village and who are in the possession deemed to be the owner as there is no demarcation of the area under Abadi Deh. It is also submitted that, plaintiff duly proved the fact of electricity and water connection in the name of one of the LR of plaintiff and this fact is also admitted by the defendant no. 2 during his cross-examination.
35. It is also submitted that, from the material placed on record i.e. photographs, letters, application, it is clear that plaintiff is in possession of the suit property and defendant failed to disprove this fact.
36. It is also submitted that, plaintiff has not suppressed any facts from this court as objected by defendant in their WS. It is also submitted that, plaintiff is in settled possession of the suit property as reflected in Ex.PW5/A i.e. Patwari report and same is duly counter signed by defendant no. 3 and 5 and also by DW-2. It is further submitted that, plaintiff is in settled possession of the suit property mainly for five reasons. Firstly, there is admission on behalf of defendant no. 2 in his cross-examination wherein he identified the suit property in photographs i.e. Exh. DW1/P1. Secondly, defendant no. 2, 3 and 5 duly admitted their signature in Patwari Report dt. 21.02.2014 i.e. Ex.PW5/A which shows the settled possession of plaintiff. Thirdly, the electricity connection is proved by PW9 and PW11 in favour of plaintiff. Fourthly, defendant no. 2 himself relied upon the Ex.PW8/A which consists letter dt. 09.07.2014 written to SDM for objection against issuance of Lal Dora certificate wherein it was mentioned that Sh. Jagannath, Ramesh and Prem Sukh were initially the owner of the properties and same was divided in three equal parts. Fifthly, CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 19 of 36 defendant failed to challenge the order passed by Revenue Authority in favour of plaintiff, hence, same attains finality.
37. Plaintiff in support of his contention relied upon the following judgments:
1. Placidivs Ekka vs. State of Bihar 2003 AIR Jhar HCR 1253;
2. Hem Nolini Judah (since deceased) and after her legal representatives Mrs. Marlean Wilkinson vs. Mrs. Isolyne Sarojsbashini Bose & Others AIR 1962 SC 1471;
3. T. Venkata Narayana vs. Venkata Subbamma (Dead) Civil Appeal no. 7107 of 1996 dt. March 29, 1996 Supreme Court of India;
4. Ram Gowda (D) By Lrs. vs. Varadappa Naidu (D) By Lrs. Civil Appeal no. 7662 of 1997 dt. December 15, 2003 Supreme Court of India (Allahabad High Court);
5. A Subramanian v. R. Pannerselvam Civil Appeal no. 9472 of 2010 dt. February 08, 2021 Supreme Court of India (Madras High Court);
6. Poona Ram vs. Moti Ram Civil Appeal no. 4527 of 2009 dt. January 29, 2019 Supreme Court of India (Rajasthan High Court);
7. Misrilal Ramratan Manshukhlal vs. A.S. Shaik Fathimal Civil Appeal no. 844 of 1986; 855A of 1986 dt. August 04, 1993 Supreme Court of India (Madras High Court).
38. Per contra, Ld. Counsel for defendant strongly opposed the claim made by the plaintiff. It is submitted that there is no merit in the present suit and same may be dismissed. It is submitted that the part of the suit property i.e. 500 sq. yards was under litigation till 2004, thus, same cannot be granted to the plaintiff in the year 1996 as claimed by her. It is also submitted that, Late Sh. Chander Bhan executed a registered Will dt.
CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 20 of 36 24.02.1993 during his lifetime qua the immovable property owned by him but this fact was concealed by the plaintiff. It is also submitted that, Late Sh. Chander Bhan has already given all share of Jagannath during his lifetime and thereafter severed all relationship and ties with Late Sh. Jagannath, hence, neither he nor his LR has any right, title or interest in the self acquired property of Late Sh. Chander Bhan. It is also submitted that, the present suit is not maintainable as no declaratory relief sought by the plaintiff qua the ownership of the suit property. Ld. Counsel for defendant drawn the attention of this court to para 15 of the plaint wherein cause of action pleaded by the plaintiff as follows:
"15. That the cause of action for filing the present suit has arisen on 28th of July 2014 when the defendants encroached upon the Suit Plot. The cause of action again arose on the last week of October 2014 when the defendants illegally and unlawfully tried to wrest control of the suit plot by using force and gathering cow dung, sand gravel on the vacant plot. The cause of action is continuing on a daily basis since the defendants are repeatedly threatening to interfere with the peaceful possession of the Plot."
39. Ld. Counsel for defendant submits that, as per the averment made by the plaintiff, it is clear that the defendant is in possession of the suit property as such plaintiff is not entitled for decree of permanent injunction without claiming any relief qua the possession. Lastly it is submitted that the plaintiff failed to disclose her title as well as cause of action qua 650 Sq. yards and created false story.
40. Ld. counsel for defendant in support of his contention relied upon judgment passed by Hon'ble Supreme Court of India in Anathula Sudhakar v/s P. Buchi Reddy (2008) 4 SCC 594.
CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 21 of 36 ISSUEWISE ANALYSIS AND FINDINGS There are total 7 issues out of which issue no. 3 and 4 are preliminary in nature being framed on legal objection raised by defendants. Hence, considered as follows:
Issue no. 3: Whether the suit is bad for non-joinder/mis-joinder of parties? OPD 1 to 5.
41. It is well settled law that, no suit shall be defeated by reason of misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.1
42. Hon'ble Supreme Court of India in the matter of Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and Others2 held as follows:
8. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief.
Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:
"Court may strike out or add parties. (2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to 1 Order I Rule 9 CPC 2 (2010) 7 SCC 417 CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 22 of 36 be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
43. In present matter, plaintiff is claiming permanent injunction qua defendant while defendant no. 1 objected impleadment of defendant no. 3 to 5 as unnecessary party to the present proceedings. However, considering the facts and circumstances of the present case, this court is of the opinion that impleadment of defendant no. 3 to 5 was necessary to adjudicate actual dispute between the parties, moreover, name of defendant no. 5 was explicitly mentioned in DJB Bill i.e. relied upon by the parties for the purpose of possession. Hence, present suit cannot be defeated for the reason of mis-joinder of necessary and property party. Accordingly, this issue is decided in favour of plaintiff and against the defendants.
Issue no. 4: Whether the suit has not been valued properly for the purpose of court fee and jurisdiction? OPD 1 to 5.
44. For the purpose valuation the plaintiff has valued its relief as follows:
"17. That the valuation of the suit for the purpose of Jurisdiction and the relief of Permanent injunction is valued at Rs 4,00,000 and ad valorem court fees to the tune of Rs 6,248 has been affixed along with the Plaint. The Plaintiff undertakes to make good any deficiency in court fees on account of any error in its computation or calculation."
CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 23 of 36
45. It is well settled law that suit has to be valued as per the relief claimed by the plaintiff. Plaintiff has valued the present suit for Rs. 4,00,000/-, and no evidence led by defendant to show that same is under valued. Accordingly, this issue is decided in favour of plaintiff and against the defendants.
Issue no. 1: Whether the plaintiff has not approached the court with clean hands in view of preliminary objection no. 1, 2 and 9 of the WS? OPD 1 to
5. Issue no. 2: Whether the suit is not maintainable in view of preliminary objection no. 3 and 4 of the WS? OPD 1 to 5.
Issue no. 5: Whether the suit is not maintainable in the present form in view of preliminary objection no. 8 and 10 of the WS? OPD 1 to 5. Issue no. 6: Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in prayer (a) of the plaint? OPP
46. Above issues are interlinked hence taken simultaneously . But, before going ahead it's imperative to reproduce the preliminary objection no. 1, 2, 3, 4, 8, 9 and 10 raised by the defendant in their WS i.e. as follows:
"1. That the suit of the plaintiff is not maintainable in the present form as the plaintiff has not approached this Hon'ble Court with clean hands and suppressed the material facts from this Hon'ble Court just to get the relief which she does not deserves. In this regard it is to be submitted that a suit for permanent injunction qua the property admeasuring 500 sq. vds out of khasra number 84 Village Jhatikara le suit question in the present case, titled as "Chander Bhan Vs. Tulsi Ram & Ors. bearing suit number 523 of 1986 was pending adjudication before court of Sh D. Keshav, the Sub Judge 15 Class, Tis Hazari Cour Delhi which was decided in favour of Sh. Chander CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 24 of 36 Bhan/Plaintiff as he was in actual physical possession of the land admeasuring 500 Sq. yds. i.e. the suit property vide its order dated 10.4.1991. Since besides Sh. Tulsi Ram, Sh. Sukh Lal, Sh. Har Nand, Sh. Tek Ram and Ram Avtar were also claiming to be in possession of the property and threats the plaintiff/Chander Bhan of dispossession, hence all were restrained from interfere in the possession of Sh. Chander Bhan. Even in order to ascertain the actual physical possession, the than Court also appointed Local Commissioner who confirmed the actual physical possession of the plaintiff. Against the order/judgment an appeal was filed by the Defendants/Appellants Sh. Tulsi Ram & Sh. Sukh Lal which was finally dismissed in the year of 2004. Since the order of dismissal has not been challenged therefore the order passed by the Sub judge, 1st Class attained finality. Hence no partition of property could have been possible during the stay of the court at the one hand on the other the possession of the suit land was still to be decided, therefore the contention of the plaintiff to the extent of her exclusive possession on the suit property shall vitiate all the pendency of the suit and court order, therefore the same has no force in the eye of law and pleadings deserves dismissal at the very threshold of the proceedings.
2. That the plaintiff has also concealed the facts that even on 24.2.1993 Sh. Chander Bhan executed a Will duly registered qua the immovable property which was also filed before the court of law in his life time during the pendency of appeal in which name of the plaintiff even did not find mentioned in It. As such she is not the legal heirs of Chander Bhan. Similarly since the appellant Sh. Tuisi Ram, etc. were the villagers residing in the neighborhood, hence after death of Chander Bhan on 12.3.2003 they moved an Application under Order XXII Rule for bringing the legal heirs of Chander Bhan on record but even in that application the name of the plaintiff was not mentioned she is not the legal heirs of Sh. Chander Bhan as alleged by her. The copy of certified copy of appeal, judgment dated 10.4.1991, Will dated 24.2.1993 and application for bringing of legal heirs are attached herewith for the kind perusal of this Hon'ble Court.
CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 25 of 36
3. That it shall not be out of place to mention here that in his life time Sh. Chander Bhan even before getting marriage given all the share and severed all relationship with Sh. Jagannath and as such he was having no concern with the property possessed by Sh. Chander Bhan as the same was his self acquired property for which he has already executed registered Will. Hence neither the question of partition arose nor handing over possession of any property arose at all.
4. That the suit of the plaintiff is also not maintainable in view of the provisions laid down under Section 41 (1) (h) of Specific Relief Act as no co-parcenor in the family can file a suit for injunction against the karta of the family or the other co sharer without the partition of the property, hence on this ground alone the suit of the plaintiff deserves to be dismissed.
8. That the suit of the plaintiff is also not maintainable as the plaintiff under the garb of the suit for permanent injunction sought the relief of possession and declaration to be the owner of the property. Hence on this ground alone the suit of the plaintiff deserves dismissal.
9. That the plaintiff also concealed the facts from this Hon'ble Court that Jagganath alleged to be the husband of the plaintiff died in the year of 2012 but till his life time he never any claims on the property in question despite the facts that case was pending adjudication before the court of law. It has also been concealed that there was great apprehension of the property admeasuring 1150 sq. yds approx. out of Khasra No. 84 in the exclusively ownership and possession of the defendants, hence in the year of 2013 the defendants No. 1 & 2. On which Sh. Suraj Bhan Ex- Pradhan of Village Jhattikara made a complaint that the defendants were encroaching upon the Gaon Sabha land by erecting boundary wall. Though nothing happens on the complaint as the police from the local police station came on the spot but after seeing the documents of the defendants they left the spot by saying that the land has been in possession of the defendant on which they were erecting CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 26 of 36 fresh boundary wall on the old constructed boundary wall. This facts also proves the possession of the defendants over the land admeasuring 1150 sq. yds out of khasra No. 84 of Village Jhatikara, Delhi.
10. That the suit of permanent injunction is also not maintainable as the plaintiff her self admitted the possession of the defendants on the suit land. The plaintiff in para No. 15 categorically stated that "the cause of action for filing the present suit has arisen on 28 of July 2014 when the defendants encroached upon the suit plot. The cause of action again arose on the last week of the October 2014 when the defendants (illegally and unlawfully tried to wrest control of the suit plot by using by force and gathering cow dung, sand gravel on the vacant plot". Such submission in itself shows that the plaintiff has admitted the possession of the defendant whether by way of encroachment or illegally whatever it may be hence the plaintiff was left with no other option but to file the suit for possession if she was having the legal rights on the suit land."
47. Thus, the main contentions of defendants are three fold. Firstly, in the earlier litigation Late Sh. Chandra Bhan claimed to be in physical possession of land admeasuring 500 sq. yards and said order attain finality in the year 2004. Thus, there is no point in the submissions of the LR of deceased plaintiff that the suit property was divided and given to his father in the year 1996. Secondly, Late Sh. Chander Bhan executed registered Will dt. 24.02.1993 wherein plaintiff's name was not mentioned. Thirdly, Late Sh. Jaggannath i.e. husband of plaintiff never claimed any ownership right of possession qua the suit property during his lifetime and there is no iota in the submission of the plaintiff that the suit property admeasuring 1150 sq. yards. To prove the contention, defendant relied upon Ex.PW5/1 and Ex.PW5/PX i.e. Vakalatnama and order dt. 21.10.2023 filed in appeal against order dt. 10.04.1991 passed in CS no. CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 27 of 36 523/1986. Ld. Counsel for defendant also submitted that, during his entire deposition PW1 and PW2 failed to disclose that how and for whom plaintiff had inherited /acquired the suit property admeasuring 1150 sq. yards and how and when Smt. Savitri Devi came in possession of the suit property admeasuring 1150 sq. yards.
48. On the other hand, main contention of the plaintiff is that Late Sh. Chander Bhan was primarily left with two plots i.e. one plot admeasuring 750 sq. yards in Khasra no. 117/4 forming part of new Lal Dora and one plot of 500 sq. yards in Old Lal Dora Khas no. 84. He submitted that plaintiff is already in continuous uninterrupted possession of the plot admeasuring 650 sq. yards in Old Lal Dora Khasra no. 84 and plot admeasuring 500 sq. yards i.e. given by Late Sh. Chander Bhan to the plaintiff was adjacent to it. Hence, plot admeasuring 1150 sq. yards i.e. 650 sq. yards plus 500 sq. yards, came to the possession of the plaintiff and plaintiff being in continuous possession of the same applied for Lal Dora certificate vide application dt. 29.11.2023 before SDM, Kapashera, upon which Halka Patwari filed its report dt. 21.02.2024 in favour of plaintiff duly affirmed by defendant no. 3 and 5 but thereafter defendants started to raise dispute qua the possession of the plaintiff. Hence present suit is filed.
49. So far as preliminary objections no. 1, 2, 3, 4, 8, 9 and 10 are concerned Ld. Counsel for plaintiff submits that, it has no merit in the eyes of law. It is submitted that fact of partition was also pleaded in WP(C) no. 1662/2016 and 8956/2015 and defendant failed to discharged burden of proof qua issue no. 1. It is further stated that the husband's name of the plaintiff is duly mentioned in the Will and it is admitted position that CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 28 of 36 husband of plaintiff is Class-I LR of Late Sh. Chander Bhan. Ld. Counsel for plaintiff strongly relied upon Ex.PW13/A i.e. report dt. 30.11.2016 issued by the Commissioner Tehsildar wherein possession of plaintiff was clearly mentioned.
50. Thus, this court has to ascertain whether plaintiff has not approached the court with clean hands in view of the preliminary objections w.r.t. the order dt. 10.04.1991 passed in CS 523/1986, Will dt. 24.02.1993 and concealment of fact of possession on the suit property by defendant? and if affirmative what would be the impact of said concealment in present proceedings? However, onus of this issue were on defendants.
51. It is well settled law that, burden to proving facts raised upon the party which substantially asserts the affirmation of the issue. In the matter of Anil Rishi Vs. Gurbaksh Singh (2006) 5 SCC 558 of Hon'ble Supreme Court of India held as follows :
"8. The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:
"101. Burden of proof. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 29 of 36 the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
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15. Section 111 of the Evidence Act will apply when the bona fides of a transaction is in question but not when the real nature thereof is in question. The words "active confidence" indicate that the relationship between the parties must be such that one is bound to protect the interests of the other.
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19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate 9 the duty of bringing forward evidence in support of a proposition at the beginning or later, (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same."
52. Deed of Will dated 24.02.1993 (Exhb DW4/1) clearly shows the name of Jagannath alongwith name of other heirs namely Basanti Devi, Ramesh Kumar and Prem Sukh. In fact, Exhb DW4/1 includes description of immovable properties owned by late Chander Bhan. More specifically, plot admeasuring 500 sq yds in Khasra No. 84 bequeathed and mentioned as follows:
CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 30 of 36 'and whereas the Testator is also owner of the plot vide Khasra No. 84, land measuring 500 sq yds situated at village Jhatikra, New Delhi - 43.
After the death of the testator the said property shall go and devolve in the name of Shri Ramesh Kumar and Shri Prem Sukh'
53. It is well settled law that pleadings has to be read as a whole. In the present suit, plaintiff is claiming permanent injunction against dispossession and interference of defendants and for the same she relied upon certain documents. So far as preliminary objections raised by defendants are concerned, same were subject matter of trial and after trial it cannot be said that order passed in earlier suit no. 523/1986 is res judicata to the present proceedings. Infact, date of Will is prior to the cause of action arisen in favour of plaintiff as claimed by her in the plaint. In her plaint, cause of action stated to be arisen on 28.07.2014 when, defendant encroached upon the suit plot. Thus, what is important for adjudication of present dispute is whether plaintiff is in settled possession of the suit property or not as on date of filing present matter.
54. It is well settled position in law that for a suit seeking a relief of permanent injunction in simplicitor, plaintiff have to establish that as on date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturbed such lawful possession. Thus, question of title cannot be decided in a simplicitor suit for permanent injunction.
55. In the case of Anathula Sudhakar v/s P. Buchi Reddy (2008) 4 SCC 594 Hon'ble Supreme Court of India held that, "Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 31 of 36 or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction"
Hon'ble Supreme Court of India specifically held as follows:
"17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(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 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 CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 32 of 36 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 plaintiffs to a more comprehensive declaratory suit, depending upon the facts of the case."
56. This court carefully gone through the entire material placed on record and submissions made by the parties and of the opinion that in the entire suit plaintiff could not establish the possession in his favour qua the suit property.
57. Plaintiff relied upon the report issued by Tehsildar, Kapashera u/s 86A of DLR Act wherein it was specifically mentioned that, " In view of the documents submitted by the applicant, written statement of the villagers and enquiry conducted in village communicating with the villagers of village Jhatikra, New Delhi it has come to the notice that the actual owner of the land bearing Khasra no. 84 sq. yards, new Delhi is/was CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 33 of 36 Sh. Vinod Kumar Sharma S/o Sh. Jagganath and his ancestors for long time."
58. Thus, bare perusal to above report clearly shows that even for the sake of arguments it is presumed that Tehsildar, Kapashera has given his report in favour of Sh. Vinod Kumar Sharma but it include the word "his ancestors" that include, Late Sh. Chander Bhan and his LRs as well. In any case, the said report was given for land bearing Khasra no. 84, admeasuring 1500 sq. yards within Lal Dora of village Jhatikara, Delhi while in the present matter suit plot is admeasuring 1150 sq. yards. Thus, this court is not inclined to accept the arguments advanced on behalf of plaintiff. Moreover, none of the water bills or electricity bills bears the description of the suit property, so under no circumstances it can be presumed that the said electricity and water bills issued for the suit property. Further, as per report dt. 21.02.2014 Ex.PW5/A, possession of Smt. Savitri Devi was confirmed in Khasra no. 84 Old Lal Dora for more than one bigha which is again in contradiction to the size of the suit property. Even, in said report, it was mentioned that the electricity meter was installed two months before only.
59. In view of above, these issues are decided against the plaintiff.
Relief / (CONCLUSION)
60. Thus, Considering the facts and circumstances of the present case, material placed on record and submissions made by the parties, present suit stands dismissed for the following reasons:
CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 34 of 36
a) Subject matter of the present suit is immovable property i.e. Plot admeasuring 1150 sq. yards at Old Lal Dora of Village Jhatikra, New Delhi in Khasra no. 84 but, no clear description of the property, demarcation or detail i.e. sufficient to identify it, was given;
b) Plaintiff failed to prove his settled possession in the suit property i.e. main ingredient for suit for permanent injunction;
c) There is contradiction in the material relied upon by the plaintiff. Ex.
PW5/A i.e. report dated 21.02.2014 issued by Halqa Patwari do mentioned about one bigha in Khasra no. 84 but, present suit pertains to plot admeasuring 1150 sq. yards only. Further, the report of Tehsildar, Kapashera was also not as in exclusive favour of LR of deceased plaintiff namely Sh. Vinod Kumar Sharma, rather it includes Sh. Vinod Kumar Sharma s/o Sh. Jagannath and his ancestors;
d) No material placed on record by plaintiff to show that plot admeasuring 1150 sq. yards was two separate plots i.e. plot admeasuring 500 sq. yards i.e. claimed to have been given by Late Sh. Chander Bhan to Late Sh. Jagannath in 1996 and plot admeasuring 650 sq. yards i.e. claimed to have been owned by late Sh. Jagannath;
e) No declaratory relief sought by plaintiff despite cloud is raised on her title by defendants;
f) No material placed on record to prove oral family arrangement in the year 1996 as claimed by plaintiff.
61. No order as to cost.
62. Decree sheet be prepared accordingly.
CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 35 of 36
63. File be consigned to record room after due compliance.
Announced in open court on 12.07.2024 (SHILPI M JAIN) DISTRICT JUDGE-05 DWARKA COURTS, NEW DELHI CS No. 16113/16 Smt. Savitri Devi Vs. Ramesh & ANR. Page No. 36 of 36