Delhi District Court
Smt. Kamla Devi vs Shri Inder Singh on 9 September, 2022
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-02: NORTH
ROHINI COURT COMPLEX : DELHI
RCA No. 3/2020
CNR No. DLNT01-000067-2020
In the matter of:-
1. Smt. Kamla Devi
W/o Shri Ashok Kumar
2. Shri Ashok Kumar
S/o Shri Inder Singh
Both R/o H. No. 307/2
Hazari Park, Behind MCD Primary School,
Holambi Kalan, Delhi ..................Appellants
VERSUS
Shri Inder Singh
S/o Shri Roop Singh
R/o H. No. 347,
Holambi Kalan, Delhi-82 ................Respondent
Date of Institution : 07.01.2020
Date of Argument : 03.08.2022
Date of Judgement : 09.09.2022
APPEAL UNDER SECTION 96 OF THE CPC
AGAINST THE JUDGEMENT AND DECREE DATED
04.11.2019 PASSED IN CIVIL SUIT NO. 538181/16
TITLED AS "INDER SINGH V. KAMLA DEVI AND
ANOTHER" BY THE COURT OF JSCJ, NORTH,
ROHINI COURTS, DELHI WHEREBY THE SUIT OF
THE RESPONDENT HAS BEEN DECREED
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JUDGEMENT
1. This judgement shall dispose of appeal under section 96 CPC filed by appellants against judgement and decree dated 04.11.2020 passed by Ld. JSCJ, North, Delhi in Suit No. 538181/16 titled as "Inder Singh v. Kamla Devi & Ors." whereby suit filed by respondent herein was decreed against the appellants.
2. For the sake of convenience parties have been referred to in this judgment as per their original rank before the trial court that is to say appellants No.1 and 2 have been referred to as defendant No. 1 and 2 respectively whereas respondent has been referred to as plaintiff.
3. Respondent/plaintiff filed suit for permanent and mandatory injunction and for mesne profit stating that during his service in the army he had purchased a plot bearing No. 50/19 admeasuring 200 sq. yds. in the year 1989 in the revenue estate of Holambi Kalan, Delhi from erstwhile owner Shri Lal Chand S/o Shri Khajaan Singh on 11.08.1989.
4. In the year 2005, defendant No. 1 and 2, who are daughter in law and son respectively of plaintiff, requested plaintiff for allowing them to reside in the aforesaid property assuring that whenever plaintiff would need the said property for any purpose, they would hand over the peaceful, physical and vacant possession of the aforesaid property to the plaintiff. On the request and on account of blood relation with RCA DJ 03/2020 Kamla Devi & Anr. vs. Inder Singh DoJ 09.09.2022 Page No. 2 of 14 the defendants, plaintiff had constructed a separate portion in 65 sq. yds. out of total 200 sq. yds. more specifically shown in red colour in the site plan, out of his own funds and permitted the defendants to reside in the said suit property.
5. With the passage of time intention of the defendants turned hostile and defendants along with another son of the plaintiff namely Pramod started conspiring against the plaintiff to grab the said property. Defendants along with Pramod started quarreling with the tenant in another portion of 200 sq. yds. of plot and thereby caused financial loss to the plaintiff. Defendants and their children also started quarreling with plaintiff on many occasions and started pressurising the plaintiff to transfer the said property in the name of defendant No. 1. They also threatened the plaintiff that if plaintiff did not transfer then they would implicate the plaintiff in false criminal case.
6. In the month of May 2016 plaintiff planned to reconstruct the said property and he requested the defendants to vacate the above said portion of 65 sq. yds. out of 200 sq. yds. but defendants refused and also stopped the construction work of the plaintiff. Plaintiff has disowned/debarred the defendants along with their children from all his immovable and movable properties by way of publication dated 02.09.2016 in daily newspaper Virat Vaibhav. Plaintiff severed all his relation with defendants and their children and served them with notice dated 07.09.2016 asking them to remove themselves from the suit property and also claimed damages/mesne profits at the rate of RCA DJ 03/2020 Kamla Devi & Anr. vs. Inder Singh DoJ 09.09.2022 Page No. 3 of 14 Rs. 5000/- per month. As defendants failed to comply with notice dated 07.09.2016, plaintiff filed the present suit for damages, permanent and mandatory injunction against defendants.
7. Defendant No. 2 was proceeded against ex-parte whereas defendant No. 1 filed written statement wherein while raising legal objections regarding the maintainability of the suit and about the valuation of the suit, stated that plaintiff's claim of ownership based on notarised document was not sustainable in view of the ruling of the Hon'ble Supreme Court in "Surya Lamp v. State of Haryana & Anr." (2009) 7 SCC 363. As per defendant, plaintiff purchased the suit property after selling the property bearing No. 120, measuring 50 sq. yds., Lal Dora, Holambi Kalan, Delhi which was the ancestral property, therefore defendant No. 1 and her children have share in the suit property and plaintiff cannot maintain the present suit. The suit property was purchased in the year 1989 and since then the defendant No.1 has been residing in the suit property and plaintiff admitted in his own handwriting that defendant No. 1 has been residing in the said property for the last more than 33 years. Plaintiff and his other family members have an evil eye upon the suit property and consequently they are regularly harassing, humiliating and torturing defendant No.1 and in this regard a complaint to police officials have been made but police officials in connivance with the plaintiff had not taken any action. Hence, it has been prayed that suit filed by the plaintiff be dismissed.
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8. Plaintiff filed replications thereby denying the contents of the written statement and reiterated the contents of the plaint.
9. From the pleadings of the parties following issues were framed by the trial court:-
1. Whether the plaintiff is entitled for the relief of the mandatory injunction, as prayed for? OPP
2. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for? OPP
3. Whether plaintiff is entitled for the relief of the mesne profit, as prayed for? OPP
4. Whether plaintiff has not valued the suit property, as required? OPD
5. Relief.
10.Plaintiff examined himself as PW1 and also examined his son Sunil Kumar as PW2. Both were cross examined by the counsel for defendants and thereafter PE was closed.
11.Defendant No.1 examined as many as five witnesses including herself. Defendant No.1 examined herself as DW1. She also examined her two sons and daughter as DW2, DW3, DW4 and one head constable Anil Kumar as DW5. Thereafter, DE was closed vide order dated 20.04.2019 and matter was posted for final arguments.
12.After hearing parties and appreciating evidence and material on record, the court below decreed the suit in favour of plaintiff/respondent vide impugned judgement and decree dated RCA DJ 03/2020 Kamla Devi & Anr. vs. Inder Singh DoJ 09.09.2022 Page No. 5 of 14 04.11.2020 deciding all the issues in favour of the plaintiff and against the defendants.
13.Aggrieved from the said judgement, defendants herein have filed the present appeal and have also filed application under Order 41 Rule 27 CPC seeking permission to lead additional evidence.
14.In the application under Order 41 Rule 27 CPC it has been stated that the present appeal relates to built-up property bearing No. 307/2, Hazari Park, behind MCD Primary School, Holambi Kalan, Delhi, measuring about 65 sq. yds. which forms part of Khasra No. 59/19. Earlier grandfather of the defendant No. 2 namely Roop Chand was the owner and in possession of a built-up house situated in the lal dora, Holambi Kalan measuring 60 sq. yds., wherein said Roop Chand was living along with his family members including plaintiff which house was inherited by Shri Roop Chand from his forefathers/ancestors. Said Roop Chand during his lifetime had transferred the said property measuring 60 sq. yds. to the plaintiff.
15.Earlier one Shri Lal Chand S/o Sh. Khajaan Singh resident of village and post office Holambi Kalan Delhi was the owner of plot measuring 200 sq. yds. out of Khasra No. 59/19, village Holambi Kalan Delhi- 82 of which the suit property forms part. In or about the year 1989/90 Shri Lal Chand S/o late Sh. Khajaan Singh approached the plaintiff and his father as he intended to exchange his plot of land measuring 200 sq. yds. with the built-up property measuring 60 sq. yds. of the plaintiff inside the village.
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16.Plaintiff was having a large family comprising four sons and daughters and therefore plaintiff and his father acceded to the request of said Shri Lal Chand and consequently the built-up house measuring 60 sq. yds. was given to said Shri Lal Chand in exchange of aforesaid plot measuring 200 sq. yds. and as a result of which plaintiff became the owner of the plot measuring 200 sq. yds. and Shri Lal Chand became the owner of built-up property measuring 60 sq. yds.. Thus, plaintiff became owner of the plot measuring 200 sq. yds. on the basis of exchange of built-up house which was the ancestral property of the parties.
17.Plaintiff was allotted a plot measuring 100 sq. yds under the government's 20 point programme where plaintiff along with defendants and other family members were living together. However, as size of the family increased due to marriage and birth, it was mutually decided amongst all family members to partition the entire plot measuring 200 sq. yds. and other built-up house measuring 100 sq. yds amongst sons of the plaintiff and aforesaid properties were partition by meats and bounds orally. The plot measuring 200 sq. yds. was divided into three parts each measuring 65 sq. yds. approx. and were given to Pramod Kumar, Shri Rohtas and defendant No.2 all sons of plaintiff. After said oral partition, each party started using, occupying and living in their respective portions. Defendants had raised temporary construction in their portion and living there since 1993. In 2015-16 defendants raised fresh construction comprising two rooms, one kitchen at the ground floor latrine and bathroom at the first floor along with staircase.
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18.It has been further stated that defendant No. 2 was influenced against defendant No.1 and as such he did not file written statement before the trial court however now he has come back in the company of a defendant No.1. Defendants have further given details of alleged harassment, humiliation inflicted by plaintiff and his son Sunil Kumar who allegedly want to take/grab the property of the defendants and in the light of these facts defendants seek permission to lead additional evidence.
19.Plaintiff has opposed the application seeking permission to lead additional evidence submitting that it was categorically admitted by defendant No.1 and her witnesses who were none other than the children of defendants, to the effect that suit property was purchased by the plaintiff in the year 1989. Defendants failed to prove that the plaintiff has purchased the suit property from the sale proceeds of alleged ancestral property. So much so that defendants even failed to prove that any such ancestral property was existing in the hands of plaintiff. Hence, it has been contended that defendants cannot be permitted to change their stand. In the written statement they had stated that suit property was purchased from the proceeds of ancestral property now it is being claimed that suit property was exchanged with Lal Chand. It has been contended that no such plea was taken before the trial court and once such a plea is not available in the written statement, defendants cannot be permitted to prove something which has not been pleaded.
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20.As far as plea of partition of the suit property is concerned, it has been contended that admittedly during the lifetime of the owner of the property nobody else can claim ownership of the property on the basis of partition unless written registered document exist in his favour. It has therefore been contended that even if plea of the defendants about the partition and giving a share of the suit property is taken into consideration, defendants will not have any right in the property unless they have registered document in their favour. They cannot also claim ownership or right to possession on the basis of alleged permanent construction over the suit property as they had miserably failed to prove that construction were raised by them out of their own pocket. Hence, it has been contended that application for allowing/leading additional evidence be dismissed.
21.Having heard rival submissions of the parties and having perused the record of the case, this court is not able to understand how defendants want to lead evidence to prove partition without pleading about the same in the written statement. It is settled law that one cannot lead evidence on the point unless said fact has been pleaded. Perusal of written statement as filed before the trial court does not show any such plea having been taken by the defendants. In fact there it was claimed that defendants have share in the property as the suit property was purchased from the sale proceeds of the property bearing No. 120, measuring 50 sq. yds. in the said village, which was an ancestral property and therefore it was claimed that the nature of the suit property was also ancestral and consequently defendants had share in it. The plea of getting suit property in partition having not RCA DJ 03/2020 Kamla Devi & Anr. vs. Inder Singh DoJ 09.09.2022 Page No. 9 of 14 taken before the trial court cannot be allowed to be proved by leading additional evidence.
22.There seems to be some strength in the contention of Ld. counsel for the plaintiff to the effect that if someone is claiming ownership in the property from someone who is admittedly owner of the property, such claim cannot be sustained in the absence of a registered document even if such transfer is within family or blood relation. Admittedly, plaintiff is owner of the suit property and to claim ownership in the part of the suit property on the basis of partition during the lifetime of the owner is not possible in the absence of registered document transferring title in favour of the person claiming ownership on the basis of partition. Thus, even if defendants proves oral partition and consequent giving of share to him will not make him owner of the property. Hence, application under order 41 rule 27 CPC filed by defendants is hereby dismissed.
23.Coming to the appeal, defendants have assailed the impugned judgement and decree on the ground that 65 sq. yds. out of the suit property has fallen to the share of defendant No.2 in pursuance of oral partition that has taken place amongst family members, which fact obviously could not be taken into consideration by the trial court as the same was not part of pleadings before it. Such plea of partition having been taken for the first time before the appellate court cannot be considered, therefore, impugned judgement and decree cannot be assailed on the aforesaid ground.
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24.It has been contended by defendants that Ld. Trial Court failed to appreciate that construction in the 65 sq. yds. out of 200 sq. yds. were done by the defendants at their own cost as the children of defendants are working who took loans from government and private persons and more than Rs. 6,00,000/- was spent in raising the construction over the suit property. On this ground also impugned judgement cannot be assailed as defendants failed to prove that they had raised construction by spending money out of their own pocket. DW2, DW3 and DW4, the sons and daughter of defendants vaguely deposed that they had contributed amounts in the raising of construction but it was a general testimony without specifying as to how much amount was contributed by each of them and how much amount was spent on the construction. Besides, defendants did not prove any documents to show that they purchased building materials or paid the labourers or other necessary items. They did not place on record even a single document showing purchase of materials required for raising construction. Hence, the impugned judgement and decree cannot be assailed on the grounds that defendants had raised permanent construction over the suit property and trial court did not consider the same as there is absolutely no evidence on record in this regard from the side of defendants.
25.It has been contended by the defendants that they have been living in the suit property as owner for years and plaintiff and his son Sunil Kumar started picking up quarrel with them to grab the property and also harassed the daughter of the defendants who lodged an FIR RCA DJ 03/2020 Kamla Devi & Anr. vs. Inder Singh DoJ 09.09.2022 Page No. 11 of 14 against plaintiff and her son Sunil Kumar and as a counter-blast to the said FIR, plaintiff filed the present suit.
26.This ground of appeal is not sustainable in law as even if same is true that will not affect the civil rights of the parties. Civil courts are concerned with the civil right of the parties and not with the intention. In the present case plaintiff has approached the court seeking mandatory injunction claiming that he is the owner of the property and defendants are licensee and defendants denied themselves claiming ownership in themselves. In the background of aforesaid pleadings what has got to be seen by the court is whether plaintiff has any right/title to seek such a prayer and whether the defendant has any right/title to the property so as to oppose the prayer sought by the plaintiff. It has nothing to do whether the suit was filed as a counter-blast to the FIR or otherwise.
27.Mere long stay in the property is also not a ground to deny plaintiff the right to claim relief in the suit particularly when there is no plea of adverse possession by defendants. Howsoever long the possession maybe, a permissive possession always remains a permissive one unless occupant does something openly to show hostility and adverse possession. Defendants have not taken any such plea of adverse possession, therefore the ground agitated here is not sustainable for assailing the impugned judgement and decree.
28.Similarly, impugned judgement and decree cannot be questioned on the ground that defendant No.2 was under the influence of plaintiff RCA DJ 03/2020 Kamla Devi & Anr. vs. Inder Singh DoJ 09.09.2022 Page No. 12 of 14 and his another son Sunil Kumar and thereby they prevented the defendant No. 2 to file written statement and as such he was proceeded against ex-parte. Admittedly, the defendant No. 1 has contested the suit and has taken all possible defence which she could have taken with all possible evidence in her favour and therefore merely because defendant No. 2 was allegedly under the influence of plaintiff, impugned judgement cannot be questioned. If at all said allegation is true, defendant No.2 could have filed an application under Order IX Rule 7 and 13 CPC before the Ld. Trial Court. These allegations cannot be adjudicated in appeal in the absence of plea before the trial court.
29.The grounds that other son of plaintiff and plaintiff were extending threats to the defendant and his children can also not be ground to assail the impugned judgement and decree as that was not the question before the trial court nor any such evidence was led before the trial court nor such question arose for adjudication in the present matter. Similarly, because plaintiff has withdrawn her suit on the alleged misguidance to the Court is also not a ground to agitate the impugned judgement because in the said suit defendant No. 1 had prayed for grant of injunction from illegal dispossession and as plaintiff herein gave statement to the court that he would not take law into his hands, there remained nothing for adjudication and therefore the said suit of the plaintiff was withdrawn. In any case even if said suit had been pending or had been adjudicated in favour of the defendant No.1 that would not have had any bearing on the present case. Therefore, to say that defendant No.1 withdrew said suit in RCA DJ 03/2020 Kamla Devi & Anr. vs. Inder Singh DoJ 09.09.2022 Page No. 13 of 14 pursuance to misguidance to the court will not affect the impugned judgement and decree and same cannot be disturbed for that reason.
30.Defendants have not been able to raise any grounds on which it could be said that Trial Court committed error in rendering the impugned judgement and decree in favour of plaintiff. Moreover they have not been even able to raise grounds requiring re-appreciation of evidence. All material grounds raised have been discussed above and almost all of them were extraneous to the pleadings before the Trial Court. Hence, in view of the above discussion and reasoning impugned judgement and decree does not call for any interference by this court and as such present appeal is hereby dismissed. Parties to bear their own respective cost of litigation.
31.TCR sent back with copy of judgement placed on it.
32.Appeal file be consigned to record room after necessary compliance. HARISH Digitally signed by HARISH KUMAR KUMAR Date: 2022.09.09 16:06:49 +0530 (Harish Kumar) Additional District Judge-02, North Announced in the open court Rohini Court Complex (Judgement contains 14 pages) Delhi/09.09.2022 RCA DJ 03/2020 Kamla Devi & Anr. vs. Inder Singh DoJ 09.09.2022 Page No. 14 of 14