Delhi District Court
Kanta Bhatia vs Mohinder Gupta on 31 January, 2011
IN THE COURT OF SH. VINOD KUMAR GAUTAM :
ADMINISTRATIVE CIVIL JUDGEcum ADDITIONAL RENT
CONTROLLER : (NORTH) DELHI.
In Re : Suit No.1912/08
Old Suit No.151/1998
Unique Case ID No. 02401C0063402000
1.Kanta Bhatia W/o Late Shri O.P. Bhatia,
2. Naresh Bhatia S/o Late Shri O.P. Bhatia Both R/o R43, West Patel Nagar New Delhi110008. Plaintiffs Versus
1. Mohinder Gupta S/o Sh. M.L. Gupta, R/o 2162, T7, Guru Arjun Nagar, Abadi area of Khampur, Patel Nagar, New Delhi110008
2. Smt. Deepak Arora W/o Shri D.L. Arora R/o H.No.2162/T10.
Suit no.1912/2008 1 / 30 Guru Arjun Nagar, Abadi area of Khampur, Patel Nagar, New Delhi110008 Defendants Date of Institution of Suit : 06/06/1996 Date on which Order was reserved : 03/01/2011 Date of Pronouncement of Order : 31/01/2011 In Re : Suit No.1912/08 Old Suit No.152/1998 1. Mohinder Gupta S/o Sh. M.L. Gupta, R/o 2162, T7, Guru Arjun Nagar, Abadi area of Khampur, Patel Nagar, New Delhi110008 2. Smt. Deepak Arora W/o Shri D.L. Arora R/o H.No.2162/T10. Guru Arjun Nagar, Abadi area of Khampur, Patel Nagar, New Delhi110008 Plaintiffs Versus Suit no.1912/2008 2 / 30 1. Kanta Bhatia W/o Shri O.P. Bhatia, R/o R43, Double Storey, West Patel Nagar, New Delhi110008 2. Sh. G. L. Mehta, SHO P.S. Patel Nagar New Delhi Defendants Date of Institution of Suit : 31/08/1995 Date on which Order was reserved : 03/01/2011 Date of Pronouncement of Order : 31/01/2011 JUDGMENT.
The brief facts of the case are that the plaintiff no.1 is the wife and plaintiff no.2 is the son of late Sh. Om Prakash Bhatia who had expired on 02/02/1996. It is contended that the plaintiff no.1 and her husband have purchased approximately 50 yards each of a plot measuring 100 sq yards for a consideration of Rs.25000/ and Rs.30000/ respectively and the plot was renumbered as 2162/T13 in Khasra No.768/33, situated in the area of village Khampur in the abadi of the area Patel Road, New Delhi (herein after referred as suit Suit no.1912/2008 3 / 30 property). The plaintiff has purchased the plot from Sh. Mangal Sen who also in respect of the property has executed the documents i.e receipt, agreement to sell, power of attorney, Will and the affidavit likewise the husband of the plaintiff no.1 purchased his portion of the property from Mangal Sen and Smt. Surender Kumari who also executed the documents i.e receipts, agreement to sell, GPA, Wills and affidavit. It is submitted that the plaintiff no.1 after its purchase on 01/02/1985 is in exclusive possession of the suit property which is bounded by a boundary wall however there is no construction in the suit property but there is an iron gate which is having the lock of plaintiff no.1. It is submitted that for the suit property late Sh. Om Prakash Bhatia has also paid a sum of Rs.400/ as house tax on 07/05/1985 to the MCD. It is further submitted that the plaintiff no.1 and 2 are residing in another property bearing no.R43, West Patel Nagar, New Delhi and that due to personal reasons and difficulties the plaintiff could not construct the suit property. It is further submitted that the defendant no.1 and 2 started alleging that they have purchased the suit property and filed a false and frivolous suit for permanent injunction. It is further averred that the husband of defendant no.2 got a sale deed in his wife's favour as well as in favour of defendant no.1 and has started alleging to purchase the Suit no.1912/2008 4 / 30 suit property in 1995. It is further averred that the proceedings between the parties have also been started before SDM as the defendants started interfering in the peaceful possession of the plaintiff. It is further submitted that the plaintiff apprehends that the defendants may take forcible possession of the suit property from the plaintiffs and that the defendants are threatening the plaintiffs to hand over the keys or otherwise they will take the forcible possession of the suit property. It is further averred that the defendants are alleging that they have sale deeds in their favour with regard to the suit property. It is further averred that the correct number of the suit property is 2162/T13 and not 2162/T7A as alleged by the defendants. That the plaintiffs have prayed that the alleged sale deed executed on 31/03/1995 by Sh. Ram Kishan in favour of the defendants which were registered in the office of Subregistrar and the number of the suit property has been alleged as khasra no.768/33, Khewat no.7 be declared as null and void and the defendants have no right, title or interest on the basis of alleged sale deed which does not pertain to the suit property which is in occupation of the plaintiff and the plaintiff has prayed for decree of permanent injunction to restrain the defendants from interfering in the peaceful possession of the plaintiffs over the suit property and the Suit no.1912/2008 5 / 30 plaintiff has further prayed for restraining the defendants from dispossessing the plaintiffs from the suit property.
The defendants have filed the written statement and have taken the preliminary objections therein that the suit of the plaintiff is liable to be dismissed being false and frivolous and being filed with malafide intention to harass the defendants; that the suit of the plaintiffs is barred by Section 41 (h) of the Specific Relief Act ; that the present suit is liable to be stayed under section 10 CPC ; that the present suit is not properly valued for the purpose of court fee and jurisdiction as the plaintiff has sought the cancellation of the sale deed which is executed in favour of the defendants by the attorney of the previous owner of the suit property and the value of the said sale deed is Rs.1,90,000/ each and the plaintiffs should have valued the suit for the said relief at the valuation of the sale deeds and to pay ad valorem court fee on the same ; that the suit of the plaintiffs is beyond pecuniary jurisdiction of this court and plaintiffs have not affixed the appropriate court fee for the relief sought. It is submitted that Sh. Ram Kishan was one of the coowner of the large piece of the land which also included the suit property and the said property stands in the name of Ram Kishan in the Revenue records who leased a portion of the land to Diwan Singh, Jaswant Singh, Jitender Suit no.1912/2008 6 / 30 Pal Singh and Harbaksh Singh who further appointed Sh. Darshan Lal Arora as their lawful attorney in 1992 who by virtue of said power of attorney executed an agreement to sale regarding lease hold rights of 155 sq. yards of land which also included the suit property in favour of Smt. Krishna Rani who was the tenant in possession of the said property who further gave the suit property to Sh. Mahender Gupta on rent in the month of July 1984 and since then the defendant no.1 is in possession of the land including the suit property under his tenancy. It is further submitted that Ram Kishan, the original owner executed sale deed through his general attorney Sh. Neeraj Kumar in favour of defendant no.1 and 2 respectively in respect of 50 sq. yards each for Rs.1,90,000/ each and the sale deeds dated 31/03/1995 are duly registered with the Registrar and the defendant no.1 and 2 are the rightful owner of the suit property which bears the municipal number 2162/T/7A. It is further contended that the plaintiffs are not the owners and never have been in possession of the suit property. It is further submitted that the plaintiff no.1 has herself lodged a complaint dated 01/10/1995 bearing DD no.13A with police station Patel Nagar, New Delhi alleging that Sh. Darshan Lal Arora and Sh. Deepak Arora have illegally dispossessed the plaintiff and have taken the possession of Suit no.1912/2008 7 / 30 the suit property and the plaintiff no.1 has herself admitted that the possession is with the defendants and upon the said complaint the proceedings under section 145 CrPC was initiated in the court of SDM. On merits, it is denied that the suit property has been renumbered as 2152/T/13, Shadi Khampur, New Delhi. It is submitted that the brick wall and the iron gate on the suit property have been affixed by the defendant no.1 during the period of his tenancy at the suit property and that the keys of the same are with the defendant no.1. It is submitted that inside the suit property, huge number of articles of the defendants are lying. It is further denied that on the iron gate, the lock is of the plaintiff no.1 and further averred that during the proceedings of the present suit, the plaintiff no.1 has produced the key in the court purporting to be the key of the lock affixed on the iron gate of the suit property and the key which was produced and deposited in the court by the plaintiff no.1 are not the key of the lock affixed on the iron gate and the keys of which are with the defendant no.1. It is denied that the husband of the plaintiff has deposited house tax of the suit property and it is submitted that the plot no.2162/T/13, Shadi Khampur, New Delhi does not exist in the municipal record as evident from the statement of Sh. Mathura Prasad, Asstt. Assessor and Collector, Karol Bagh Zone recorded in Suit no.1912/2008 8 / 30 the proceedings under section 145 CrPC pending before SDM Delhi that the suit property stands assessed in the name of defendant no.1 in the municipal authority who has been paying the house tax of the same. The defendants have denied the other averments of the plaint and has prayed for the dismissal of the suit with cost.
Replication to the written statement of the defendants has also been filed by the plaintiff, reiterating and reaffirming the contents of the plaint and denying the contents of the written statement.
Vide order dated 20/09/1999, from the pleadings of the parties, the following issues were framed in the suit no.151/98 :
1.Whether the plaintiff is liable to be stopped u/s 10 CPC ?OPD
2.Whether the suit has not been properly valued for the purpose of court fee and jurisdiction ? OPP
3.Whether there exists any cause of action in favour of the plaintiff and against the defendant no.1 for the purpose of the present suit ?
OPP
4.Whether the suit property bears no.2162T/7A or 2162T/13 ? OPP
5.Whether the plaintiff is entitled for the relief of declaration as claimed as per the prayer clause ? OPP
6.Whether the plaintiff is entitled for the consequential relief of Suit no.1912/2008 9 / 30 permanent injunction as claimed as per the prayer clause ? OPP
7.Relief.
The brief facts in suit no.152/1998 as disclosed by the plaintiffs are that they are the owners of 50 sq yards each of plots falling in khasra no.768/33, Khewat no.7 in the abadi of Guru Arjun Nagar, main Patel Nagar, New Delhi (herein after referred to as suit property) by virtue of sale deed executed by the owner Sh. Ram Kishan through his duly constituted attorney on 31/03/1995 and registered with the registrar of documents at S.N.2571, in additional book no.3, Vol. no.6770 from pages 70 to 76 and again at S.N.2572 in additional book no.3, Vol. no.6770 from pages 17 to 23. It is submitted that the half portion of the property was already in the possession of plaintiff no.1 and the other half portion of the property was given to the plaintiff no.2 on the date of registration and the possession of the plaintiffs has been complete through out. It is further submitted that some time back the defendant no.1 came to the site and preferred her claim to the ownership but when asked to produce any document of ownership, she was unable to produce the same. It is further submitted that the husband of the plaintiff no.2 was summoned by the defendant no.2 who threatened him to face dire consequences if he resists the handing over the possession of Suit no.1912/2008 10 / 30 the suit property and in this regard the plaintiff has also sent the telegram in the evening of 28/08/1995 to the various authorities and they have also lodged a formal complaint dated 30/08/1995 in writing in Delhi, in spite of which the defendants are bent upon to dispossess the plaintiffs from the suit property and the present suit was filed by the plaintiffs praying for a decree of permanent injunction in favour of the plaintiffs and against the defendants by restraining them from interfering into rightful use of the plaintiffs in respect of the plot in dispute and from taking forcible possession of the suit property.
The defendant no.1 filed the written statement taking therein various preliminary objections that the suit is barred u/s 80 and 79 of CPC against the defendant no.2 and also barred by Delhi Police Act; that the plaintiff has not approached the court with clean hands and has suppressed the material facts ; that the plaintiff has not correctly valued the suit property for the purpose of court fee and jurisdiction and as such the suit has to be valued on the market value of the property and there is a deficiency of the court fee. On merits, it is submitted that the plaintiff has not disclosed the correct facts ; that the suit property belongs to the defendant no.1 which she has purchased on the basis of the documents like agreement to sale, power of attorney and receipt etc which were executed by Smt. Suit no.1912/2008 11 / 30 Surender Kumari and Sh. Mangal Sen and this property which adjoins the property of plaintiff no.2 is even assessed to house tax in the name of husband of defendant no.1 and the possession of the suit property was with the defendant no.1 since the year 1985 and the plaintiff had tried to forcibly take the possession of the suit property and had broken the boundary wall for which a police report was made on 22/08/1995 vide DD no.77B in the police station Patel Nagar, New Delhi and the husband of plaintiff no.2 had created hindrance at the time of repairing of the boundary wall. It is further submitted that the sale deed appears to be a fraud as the property was already given to the defendant. It is further submitted that the door on the boundary wall of the suit property is having a lock installed by defendant no.1 and the husband of plaintiff of no.2 is a property broker and the plaintiff no.1 is his associates who are in the illegal business of the grabbing properties and that the plot has been allotted no.2162/T13, Shadi Khampur, near West Patel Nagar, New Delhi. The defendants have denied the other allegations of the plaintiffs made in the plaint.
Replication to the written statement of the defendant no.1 has also been filed by the plaintiff, reiterating and reaffirming the contents of the plaint and denying the contents of the written Suit no.1912/2008 12 / 30 statement.
The defendant no.2 was proceeded exparte by my Ld. Predecessor vide order dated 12/09/1995.
Vide order dated 20/09/1999, from the pleadings of the parties, the following issues were framed in the suit no.152/1998 :
1.Whether the suit of the plaintiff has not been properly valued for the purpose of court fee and jurisdiction ? OPD
2.Whether there exists any cause of action in favour of the plaintiff and against the defendant for the purpose of the present suit ? OPP
3.Whether the plaintiff is entitled for the relief of permanent injunction as claimed as per the prayer clause ? OPP
4.Relief.
Vide order dated 09/05/2000 both the above mentioned suits were consolidated by my Ld. Predecessor and the main suit was made suit no.151/08 where the evidence was to be led. In order to prove their respective cases, the plaintiff has examined as many as five witnesses including plaintiff herself and the defendant has examined two witnesses including himself.
I have heard the final arguments advanced by the Ld. Counsel for the parties and have perused the records of the case. My issuewise findings are as under :
Suit no.1912/2008 13 / 30
Vide order dated 09/05/2000 of my Ld. Predecessor, both the suit i.e suit no.151/98 and suit no.152/98 were consolidated and the main suit was treated to be the suit no.151/1998. Therefore the issue no.1 has become infructuous as both the suits have been consolidated.
ISSUE NO.4 IN SUIT NO.151/1998.
This issue is taken up first for discussion. The onus to prove this issue was upon the plaintiff. The copy of the receipt mark E is the document which is alleged to be a receipt regarding the payment of the house tax by the husband of the plaintiff in respect of the suit property. There is a discrepancy with regard to the dates mentioned in the above receipt Mark E and the date on which the receipt is alleged to be deposited as mentioned in para 15 of the plaint as in the said para 15 of the plaint, the house tax is alleged to be deposited on 07/05/1985 whereas on the document Mark E the date is mentioned as 04/02/1985. Moreover, the document Mark E has not been proved as per the Indian Evidence Act as no witness has been called to prove the document Mark E from the house tax department of MCD. Even the plaintiff has not made efforts to call the witness from the house tax department of MCD to prove the document Mark E and the name of the witness to be called from the Suit no.1912/2008 14 / 30 MCD department has also not been mentioned in the list of witnesses filed by the plaintiff which under section 115 Indian Evidence Act, 1872 raises adverse inference against the plaintiffs. No other documentary proof have been filed by the plaintiff which shows or mentions the property number of the suit property as 2162 T/13.
DW1 in his affidavit filed in examination in chief has deposed that Sh. Mathura Prasad, Assistant Assessor and collector, Karol Bagh Zone has given the statement in the proceedings under section 145 Cr.P.C before the Ld. S.D.M, Patel Nagar that in the House Tax Record the property No. 2162/T13 does not exist in the FIR and master register of area Khampur and the property No. 2162T7A exists as per the FIR and Master Register in the name of Mohinder Gupta, defendant no.1. The certified copy of the said statement is ExDW1/5. The certified copy of the record of the case is ExDW1/6. There is no suggestion in the cross examination of the defendant no. 1 to deny this fact and that the suit property stands in the name of the defendant no. 1 in the revenue records.
The PW1 has deposed in her examination in chief that the exact number of the suit property might be 2162/13 and she Suit no.1912/2008 15 / 30 came to know about the same as the same was written in the sale documents. This testimony of the PW1 is not in conformity with the documents as no property number is mentioned in the documents.
DW2 has deposed in his examination in chief that the suit property does not bears the number T13 as there exists another property bearing number T13 which is in the possession of Shri Harjeet Singh. There is no suggestion put to DW2 on behalf of the plaintiff to deny this fact that the suit property does not bears the number T13 or the property by this number belongs to one Shri Harjeet Singh. The plaintiff has also not filed the site plan on record for the purpose of the identification of the suit property. Plaintiff has failed to discharge the onus of this issue. Hence, this issue is decided in favour of the defendants and against the plaintiffs.
ISSUE NO.3, 5 & 6 IN SUIT NO.151/1998.
Issue no. 3, 5 and 6 are taken together as all these issues involved appreciation of common facts and evidence. The plaintiff has alleged in the plaint that she along with her deceased husband are the owners of approximately 50 sq yards each of the plot measuring approximately 100 sq yards bearing no.2162T/13, Khasra no.768/33, situated in the area of Khampur in the abadi of the area Patel Road, New Delhi on the basis of being purchased the Suit no.1912/2008 16 / 30 same from Sh. Mangal Sen by the plaintiff and by the deceased husband of the plaintiff from Sh. Mangal Sen and Smt. Surender Kumari who alleged to execute the documents i.e the receipts, power of attorney, agreement to sell, affidavits and Will in favour of the plaintiff and the deceased husband of the plaintiff. It is further alleged that the property is in possession of the plaintiff since its purchase in the year 1985 and the defendants are interfering in the possession of the plaintiff by alleging that they are owners of the suit property on the basis of the sale deeds executed by its previous owner in their favour.
On the other hand, the stand of the defendants is that they are the owners of the suit property having purchased the same from Sh. Ram Kishan, the original owner of the suit property whose name was duly entered in the revenue records of the concerned area, who executed the sale deeds through his general attorney Sh. Neeraj Kumar in favour of the defendants in respect of 50 sq yards each for Rs.1,90,000/ each. It is further alleged that the sale deeds dated 31/03/1995 are duly registered with the Registrar. There is also dispute between the parties with regard to the number of the suit property as the defendant has alleged that the suit property does not bear the number 2162T/13 as alleged by the plaintiff but the same Suit no.1912/2008 17 / 30 bears the municipal number 2162T/7A. It is further alleged that the defendants are in possession of the suit property since its purchase and earlier the defendant no.1 was in possession of the suit property as a tenant.
The plaintiff in support of her case has examined herself as PW1. In her examination in chief she has also exhibited on record the receipt executed by Surender Kumari as Ex.PW1/1, original agreement to sale as Ex.PW1/2, power of attorney executed by Surender Kumari in favour of the husband of the plaintiff as Ex.PW1/3, affidavit of Surender Kumari as Ex.PW1/4, Agreement to sell executed by Mangal Sen in favour of the plaintiff as Ex.PW1/5, Will executed by Surender Kumari as Ex.PW1/6, photocopy of the Will executed by the husband of the plaintiff as Ex.PW1/7, receipt which is witnessed by Surender Kumari as mark A, Will executed by Mangal Sen as Mark D and receipt of depositing of house tax as Mark E. The defendant no.1 examined himself as DW1 and in his examination in chief has reiterated the stand as taken by him in the written statement. He has also exhibited on record the sale deed dated 31/03/1995 in respect of the suit property as Ex.PW1/1, the copy of the sale deed dated 31/03/1995 in favour of the defendant Suit no.1912/2008 18 / 30 no.2 as mark A, the certified copy of khasra Girdawari of the revenue record as Ex.DW1/2, copy of the house tax record as Ex.DW1/3 and the receipt of the house tax as Ex.DW1/4, statement of Sh. Mathura Prasad, Assistant Assessor and Collector, Karol Bagh zone recorded before SDM Patel Nagar under Section 145 of CrPC as Ex.DW1/5, certified copies of the record of the said case is Ex.DW1/6 (colly.) and the statement of plaintiff no.1 in DD no.13A dated 01/10/1995 admitting the possession of the defendants as Ex.DW1/7.
The plaintiff has alleged to purchase the suit property from Mangal Sen and from Surender Kumari. PW1 has stated in her cross examination that she does not have any other document except the documents executed by Mangal Sen and Surender Kumari showing her possession in the suit property. There is no documentary evidence filed on record on behalf of the plaintiff to suggest that Mangal Sen or Smt. Surender Kumari has any ownership rights or interest in the suit property. PW1 has also stated in her cross examination that she did not know Mangal Sen and Surender Kumari were owners of how much land or what document Mangal Sen and Surender Kumari had in regard of their ownership and that from whom they had derived their ownership or that from whom they got the suit property. Plaintiff has failed to prove any Suit no.1912/2008 19 / 30 interest or rights of the Mangal Sen and Surender Kumari over the suit property from whom she and her deceased husband alleged to purchase the suit property. The Wills Mark D, Ex.PW1/6 and Ex.PW1/7 have not been proved as per the Indian Evidence Act. Moreover it has also not been proved that Mangal Sen and Surender Kumari have any rights in the suit property to execute the Will in favour of the plaintiff or the deceased husband of the plaintiff in respect of the suit property. It has also not been proved that the deceased husband of the plaintiff no.1 has any right or interest to execute the Will in favour of the plaintiffs in respect of the suit property. The power of attorney, Ex.PW1/3 and agreement to sell, Ex.PW1/2 which the plaintiff has alleged to be executed by Mangal Sen and the Surender Kumari does not confer ownership rights. It is a settled law that the person can transfer only the title which he himself possess and not the title which he does not possess himself. It is also settled law that the agreement to sell does not create any rights, title or interest in the suit property. The only right created by agreement to sell is the right of the specific performance in terms of Specific Relief Act, in case there is any breach of the agreement. As per the Transfer of Property Act, any transaction creating or extinguishing any rights in an immovable property worth more than Suit no.1912/2008 20 / 30 Rs.100/ can only take place by way of registered documents. Receipts Ex. PW1/1 and Mark A does not show that the payment made therein is made in respect of the suit property. The above said documents does not mention the property number or whether the payment was made in respect of the suit property.
PW2 Mohinder Kumar has deposed that the plaintiff had contacted him for removing the Malba somewhere in January 1985 and the husband of the plaintiff took him to the suit property where he removed the Malba and on his second visit, he took the payment of the same from the plaintiff when he found that the plaintiff and her husband were present at the suit property. However, in his cross examination he stated that he did not know the number of the property from where he remove the Malba and that he did not maintain any record of the payment received for removing the Malba.
PW3 has deposed in his examination in chief that he knew the plaintiff and her husband since 1984 as they used to meet at bus stand or Satsang bhawan and he has visited the suit property at the time of taking the property and thereafter 67 occasion he further deposed that he had not signed on the documents which were executed as he had reached late at the SubRegistrar office and that the husband of the plaintiff informed him that the suit property bears Suit no.1912/2008 21 / 30 no.768/33, Arjun Nagar and that the plaintiff informed him that somebody was trying to encroach the suit property and the case is pending. In his cross examination he stated that he did not know Mangal Sen and Surender Kumari prior to purchase of plot and he met them only in the court / sub registrar office. He further stated that no documents were prepared and signed in his presence and that no property number was mentioned on the suit property and it was vacant and that he knew that the possession was given since the plaintiff told him so and who distributed the sweets. He further stated that the boundary wall and the gate were not erected in his presence.
PW4 has deposed in his examination in chief that he knew the plaintiff since 1987 and whenever he visited the suit property, he saw only one boundary wall and iron gate installed in the center of the boundary wall having lock of the plaintiff and that the property of the plaintiff bears number T13. In his cross examination he has stated that he mentioned about the number of the property as the same was written on the wall when he visited the property in 1988 but he further stated that he cannot say whether any number existed nowadays or not and that he cannot say the number of neighbouring properties. He denied the suggestion that the plaintiff Suit no.1912/2008 22 / 30 is not the owner in possession of the suit property.
PW2 to 4 have been produced by the plaintiff and they being known to the plaintiff their testimonies can not be safely relied upon as it is natural that they will take the side of the plaintiff. Moreover when the plaintiffs have failed to prove the ownership rights over the suit property of those persons from whom the plaintiff no. 1 has derived the title. Further more as per the testimonies of PW 2 to 4, they have not seen the construction of the boundary wall and the gate by the plaintiff upon the suit property. The testimony of PW4 that he saw the number T13/2162 written on the wall also does not corroborate with the testimonies of the plaintiff no.1 and other witnesses produced by the plaintiffs as it is not the case of the plaintiffs that the number T13/2162 is written on the wall of the suit property. Moreover, this testimony of PW4 also does not corroborate with the report filed by Sh. K.C. Garg, Ld. Local Commissioner who has stated in his report that the name of Smt. Deepak Arora along with number 2162/T7A was written at one of the door and on the second door the name of Sh. Mahender Gupta was written alongwith number 2162/T7A on the suit property and the plaintiff identified that the aforesaid premises number 2162/T7A, Guru Arjun Nagar as the suit property when the Ld. Local Commissioner has gone for the Suit no.1912/2008 23 / 30 inspection of the suit property.
PW5 who was examined in evidence on behalf of the plaintiff by appointing a local commissioner has deposed in examination in chief that he had sold one plot to Sh. Mahajan and his sister Smt. Surender Kumari has sold her plot to Sh. Om Prakash Bhatia. He further deposed that he did not remember the khasra number of his total property of which the suit property was the part. He further deposed that the suit property was opposite to police station Patel Nagar, New Delhi. He further deposed that he cannot identify the documents shown to him as his vision has been effected due to which he could not identify the documents. PW5 in his testimony has not supported the case of the plaintiff regarding the plaintiff or the deceased husband of the plaintiff has purchased the suit property from him as PW5 has not deposed that he has sold the suit property to the plaintiff or her husband. PW5 has stated that the suit property was opposite to police station Patel Nagar, New Delhi. It is not the case of the plaintiff that the suit property is opposite to police station Patel Nagar. There is force in the arguments of the Ld. Counsel for the defendants that the property of the plaintiff pertains to some other property and not to the suit property.
The defendant no. 1 has examined himself as DW1 and Suit no.1912/2008 24 / 30 in his examination in chief has reiterated the stand as taken by him in the written statement. There is no suggestion put to the DW1 and DW2 in their cross examination by the plaintiff that the sale deeds Ex. DW1/1 and Mark A are forged and fabricated.
DW1 has also deposed in his examination in chief that the large number of articles of the defendants are lying in the suit property. One witness Sh. Ram Kishan is also examined by the defendants as DW2 who has also deposed in his examination in chief that the defendant no. 1 used to keep his building material like Ballies etc at the plot for his business purposes. DW2 has also stated in his cross examination that only one old scooter and some old cemented sheets are lying in the portion of Deepak Arora in the suit property. The learned local commissioner Sh. K.C. Garg in his report who was appointed as the local commissioner by my learned predecessor vide order dated 2.12.97 has stated that he found in the portion on which the name of Smt. Deepak Arora was written one cement bag and other furnitures etc and in the portion on which the name of Mahinder Gupta was written 10 bags of badarpur, half bricks, one two wheeler scooter no. HR066361 and heap of malba. The report of the learned local commissioner also corroborates with the testimonies of DW1 and DW2 with regard to articles being lying in Suit no.1912/2008 25 / 30 the suit property though the DW1 and DW2 claims the same to be belonging to the defendants. There is also no suggestion on behalf of the plaintiffs to DW1 and DW2 in their cross examination to deny the facts that the articles of the defendants are lying in the suit property. Therefore the same is deemed to be admitted by the plaintiffs. Even otherwise there is no evidence on behalf of the plaintiffs that the articles lying in the suit property belongs to them.
Learned counsel for the defendants has stated that the keys which was deposited by the plaintiff in the court on 4.7.96 does not belong to the lock which was there on the suit property and on the suit property the lock was of the defendant no 1. There is a force in the arguments of the learned counsel for the defendants as the defendant no.1 was not present on 4.7.96 as appears on the perusal of the order sheet dated 4.7.96 and the defendant no. 1 has taken this objection at the very first opportunity when he filed his written statement. There is also force in the arguments of the learned counsel for the defendants that no local commissioner was appointed at that time to verify that the keys filed by the plaintiff belongs to the lock put on the gate of the suit property.
In the light of the aforesaid discussion, I am of the opinion that the plaintiffs have failed to prove that the defendants Suit no.1912/2008 26 / 30 have no right or interest in the suit property. Accordingly, issue no. 3, 5 & 6 are decided in favour of the defendants and against the plaintiffs.
Issue no.2 in suit no.151/1998 : In the present case the suit of the plaintiff for cancellation of the sale deeds dated 31/03/1995 executed by Sh. Ram Kishan in favour of the defendants in respect of the suit property as null and void. The defendant has valued the suit for the purpose of court fees and jurisdiction for Rs.200/ each and has affixed the court fees of Rs.40/. It is not been denied that the sale deeds have been executed for a consideration of the sum of Rs.1,90,000/ each. Ld. Counsel for the defendants has relied upon a case titled as Himanshu Vs. Smt. Kailash Rani & another, AIR 2004, Punjab & Haryana 2007 wherein it was held that the plaintiff was required to pay ad valorem court fees on the sale consideration mentioned in the sale deeds. In the present case, the plaintiff is also challenging the sale deeds, therefore the ad valorem court fees was payable by the plaintiff and the jurisdiction of the court was to be determined on the basis of the sale consideration mentioned in the sale deeds i.e Rs.380,000/. The suit of the plaintiffs are beyond the pecuniary jurisdiction of this court. Therefore this issue is decided in Suit no.1912/2008 27 / 30 favour of the defendants against the plaintiffs.
ISSUE NO.7 in Suit No.151/1998: In view of my findings under issue no. 2 to 6, suit no. 151/98 is dismissed.
The keys of the locks of the gates of the suit property which were deposited in the court by the Ld. Local Commissioner and which are lying on the record in the file be released to the defendants by the Ahlmad.
Decree Sheet be prepared accordingly.
ISSUE NO. 3 & 4 IN SUIT NO 152/1998: Both these issues are first taken together for discussion as these issues involved appreciation of common facts and evidence. The onus to prove these issues was on the plaintiffs. The plaintiff has deposed that the defendants are wrongly alleging to be the owner of the suit property and due to which the proceedings under section 145 Cr.P.C were also conducted before SDM Patel Nagar. The certified copies of the said proceedings before the SDM Patel Nagar has been filed by the plaintiffs on the record and same is exhibited as Ex. DW1/5. On the other hand in view of my above discussion the defendants have failed to prove their ownership in respect of the suit Suit no.1912/2008 28 / 30 property. There is no evidence led by the plaintiffs against the defendant no.2. The plaintiffs have been successful in discharging the onus of these issues against the defendant no.1. Accordingly both these issues are decided in favour of the plaintiffs and against the defendant no.1.
ISSUE NO.1 IN SUIT NO.152/1998 : The onus to prove this issue was upon the defendant no.1. The plaintiffs in this suit have submitted in the plaint that they have valued the present suit for permanent injunction for the purposes of court fees and jurisdiction at Rs.130/ upon which a requisite court fees of Rs.13/ has been affixed. No evidence has been led by the defendant no.1 to prove that the suit of the plaintiffs is not properly valued. The defendant no.1 has failed to discharged the onus. Accordingly, this issue is decided in favour of the plaintiffs and against the defendant no.1.
ISSUE NO.3 IN SUIT NO.152/1998: In view of my findings in issue no.1 and 2, suit no.152/98 is decreed in favour of the plaintiffs in this suit and a decree of permanent injunction is hereby passed in favour of the plaintiffs in this suit and against the defendant no.1 in this suit thereby Suit no.1912/2008 29 / 30 restraining the defendant no.1 from interfering into rightful use of the plaintiffs or taking forcible possession in respect of the plot bearing no.2162, falling in khasra no. 768/33, Khewat No. 7 situated in the area of village Khampur in the Abadi of Guru Arjun Nagar, Main Patel Nagar, New Delhi. Decree Sheet be prepared accordingly.
After due compliance, file be consigned to Record Room.
Announced in the open Court today st on this 31 Day of January, 2011.
(VINOD KUMAR GAUTAM) ADMINISTRATIVE CIVIL JUDGE cumADDITIONAL RENT CONTROLLER :
(NORTH) TIS HAZARI COURT: DELHI.
Suit no.1912/2008 30 / 30