Delhi District Court
Ishwar Singh vs Goswami Yudhvir Puri on 20 November, 2023
1
IN THE COURT OF MS. DISHA SINGH, CIVIL JUDGE
(WEST)-02, TIS HAZARI COURT, DELHI
SUIT NO.612512/2016
CNR NO. DLWT03-000039-1997
Sh. Ishwar Singh (through LRs):-
1. Smt.Leela Devi
W/o Late Sh. Ishwar Singh
2. Sh. Rajesh Kumar
3. Sh. Rajhans
4. Sh. Rakesh Kumar
5. Sh. Jagminder Singh
All sons of Late Sh. Ishwar Singh
R/o 9 & 11, Sawan Park Extension,
Ashok Vihr, Phse-3, Delhi-110052.
6. Smt. Vijay Laxmi Verma
D/o Lte Sh. Ishwar Singh
R/o WZ-13, Tatar Pur, Tagore Garden,
New Delhi.
7. Sh. Jai Singh
8. Sh. Surender Kumar
9. Sh. Sushil Kumar
10. Smt. Omwati
11. Smt. Saroj
All 7 to 11 are sons and daughters of Late Sh. Bhagwana
R/o WZ-241, Village Wzirpur, Ashok Vihar, Delhi.
..........................PLAINTIFFS
VERSUS
1. Sh. Goswami Yudhvir Puri
2. Sh. Goswami Paras Ram Puri
Both S/o Sh. Parmanand
3. Sh. Parma Nand
All R/o H.No.12, Swarn Park Extension,
Wazirpur, Delhi.
.....................DEFENDANTS
Suit filed on :- 04.09.1997
Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-1/49
2
Judgment Reserved on :- 18.11.2023
Date of decision :- 20.11.2023
SUIT FOR POSSESSION U/S 6 OF THE SPECIFIC
RELIEF ACT
JUDGMENT
By this judgment, the undersigned shall dispose of the present suit filed by the plaintiffs against the defendants seeking the decree of possession under Section 6 of the Specific Relief Act, 1963 in favour of the plaintiffs and against the defendants by removal of the super structures raised by the defendants over plot no. 10, measuring 267 sq. yds. situated at Swarn Park Extension, Wazirpur, Delhi. Before adjudicating upon the issues framed in the present suit, it is necessary to state the pleadings in the present suit concisely.
Pleadings of the Plaintiffs: -
1. The plaintiff filed the present suit seeking decree of possession U/s 6 of the Specific Relief Act, 1963 [hereinafter "the SRA"]. The case of the plaintiff is that, at the time of commencement of Delhi Land Reforms Act, 1954 [hereinafter "the DLR Act"] Sh. Bhagwana, the father of plaintiffs was tenant under Seth Tulsi Ram in respect of the land bearing following Khasra numbers 780/659, 660; 638 and 639 min; 781/659, 676, 677, 678, 679 min; 840/805/644, 441, 443, 444, 449, 707 min;
824/439, 642 min. situated in Village Wazirpur, Delhi, besides other land.
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2. It has been stated by the plaintiffs in the plaint that, Sh. Tulsi Ram Seth was wrongly declared as Bhumidar of the land under the tenancy of Sh. Bhagwana, so Sh. Bhagwana filed a petition for declaration of Bhumidari in the revenue Courts on 04.02.1955 and there the matter was compromised, and Sh. Bhagwana and Sh. Tulsi Ram were declared joint Bhumidars of half shares each vide order of the Revenue Assistant dated 03.12.1966 and mutation was sanctioned on 27.08.1968; accordingly the plot bearing no.10, Swarn Park Extension, Wazirpur, Delhi i.e. the suit property fell to the share of Sh. Bhagwana.
3. It has been further averred by the plaintiffs that, Sh. Tulsi Ram Seth, in order to defeat the provisions of DLR Act and to defeat the claim of Sh. Bhagwana, executed a large number of fictitious and benami sale deeds in favour of his relatives and friends including Sh. Premjas Rai and also made oral gift favouring his only son Sh. Raja Ram during the pendency of the case filed by Sh. Bhagwana. That, Sh. Tulsi Ram had also executed sale deed of suit property in favour of Premjas Rai.
4. It has been further averred that, Sh. Bhagwana challenged the sale deed in favour of Sh. Premjas Rai as not binding on him. Sh. Premjas Rai seeing the fact that he has no title, further executed several fictitious sale deeds, one of which was in favour of the defendant no.1 and 2 in respect of the suit property. However, defendant no.1 and 2 never came Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-3/49 4 in possession of the same. It may be submitted that, the suit property is out of the said Khasra numbers and sale deed in favour of the defendant no.1 and 2 was got executed by their father Sh. Parma Nand i.e., defendant no.3, from Sh. Premjas Rai, when they were minors. It was further submitted that, the sale deeds in favour of Sh. Premjas Rai and the defendant no.1 and 2 were hit by the doctrine of lis-pendence.
5. It has been further averred that, in the year 1969 Sh. Parma Nand, defendant no.3, tried to forcibly dispossess Sh. Bhagwana from the suit property, whereupon a scuffle took place and proceedings under Section 145 of the code of Criminal Proceedure, 1973 was initiated with respect to the suit property. The question as to which party was in possession, was referred to Civil Court. The case was tried by the Ld. Court of Sh. S.P. Singh Choudhary, the then Sub-Judge, Delhi and the sale deeds in favour of defendant no.1 and 2 and Sh. Premjas Rai were also produced and same were discarded by the Court. The said case was decided by the Ld. Judge on 01.05.1972 in State Vs. Parma Nand & Ors. in case no. 154/70 and the possession of the second party i.e., of Sh. Bhagwana was upheld. The said finding was accordingly accepted and the proceedings under Section 145 Cr.P.C terminated in favour of Sh. Bhagwana vide order dated 12.06.1972 by the Court of Sh. R. Narayana, SDM, Delhi in case no.440/4 Goshwara no.2443 C.M. 72. Thereafter, the defendant no.1, 2 and 3 Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-4/49 5 who were jointly living in house at plot no.12, neither raised their title nor filed any appeal/revision against the said order, nor they took any step whatsoever to regain possession of the suit property. Thereafter Sh. Bhagwana remained in possession. The ration card of Jai Singh i.e., plaintiff no. 2 was registered at this plot and the house tax was being paid by him.
6. It has been further averred that, in the end of 1981 defendant no.1 and 2 cleverly got manipulated the ration card and house tax in their name in collusion with the concerned staff and filed a suit for permanent injunction against Ishwar Singh i.e., plaintiff no. 1 malafidely and in collusion with Premjas Rai in respect of the suit property. That, previous to 1981, the petitioners neither had any ration card nor paid any house tax in respect of the suit property. Rather, their ration card was in respect of the plot no.12.
7. It has been further averred that, said suit filed by the defendant no. 1 and 2 was dismissed by the Court of Sh. R.K. Jain, Sub-Judge, Delhi in suit no. 4/82 titled Goswami Youdhvir Puri & Anr. vs. Ishwar Singh vide judgment and decree dated 25.08.1989, upholding the possession of the plaintiffs over the suit property.
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8. Thereafter, defendant no. 1 and 2 filed an appeal in RCA no.299/93, which was decided on 27.09.1994 by the Court of Addl. Senior Civil Judge, Delhi. The said appeal was dismissed by the Court giving the finding that "appellants (defendant no.1 & 2) were never in possession of the disputed plot. Therefore, the relief of injunction could not have been granted to them".
9. It has been further averred that; the plaintiffs were peacefully enjoying the possession over suit property being the owners thereof. It has been further averred that, the plaintiffs were having some family dispute and taking advantage of the same, the defendants trespassed over the suit property on 03.04.1997. The defendants after remaining unsuccessful in their earlier attempts by filing false cases, were successful in taking illegal possession and raising constructions thereon illegally and forcibly. Thus, under these circumstances, the plaintiffs have filed the present suit for possession. It has been further averred that since plaintiffs have been dispossessed within six months of the filing of the suit i.e., on 03.04.1997, so the plaintiffs are entitled to a decree for injunction U/s 6 of the Specific Relief Act, 1963.
Pleadings of the Defendants: -
10.Thereafter summons for settlement of issues were issued upon the defendants. Thereafter, the defendants appeared and filed their written statement [hereinafter "WS"].
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11.The written statement was filed on behalf of defendants, denying the allegations as contained in the plaint wherein inter alia, it was submitted that there is no cause of action to file the present suit against the defendant/ DDA as the plaintiffs were never in possession of the suit property. It has been further averred that the suit is liable to be rejected as the plaintiff undervalued the relief claimed in order to escape from payment of court fees. It has been further stated that the defendants have been in possession of the suit property for the last thirty years and more; and about some time back the defendant no.2 applied for grant of loan after mortgaging the suit property with the Delhi Financial Corporation, Connaught Place and a sum of Rs.3,94,000/- were sanctioned towards the loan. The Delhi Financial corporation had assessed the market value of the suit property at about Rs.8 Lakh i.e., four years prior to filing of the present case. Further, the property in dispute has already been mutated in the name of defendant no.1 & 2 and they have been regularly making the payment of house tax.
12. It has been further stated that, in the year 1991, MCD had sent a notice U/s 126 of DMC Act, wherein they proposed to raise the rateable value of the property in question from Rs.97,391/- to Rs.1,05,180/- w.e.f. 01.04.1991 onwards and thus the value of the property was more than Rs.10 Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-7/49 8 Lakh even prior to the filing of present suit and a separate application on this issue moved U/O 7 Rule 11 CPC is already pending disposal before the Court. It has been further stated that this Court does not have pecuniary jurisdiction to entertain and try the present suit and hence, the plaint be returned as per provisions Order 7 Rule 10A CPC.
13.It has been further stated that Late Sh. Tulsi Ram Seth had sold out the suit property along with some other plots to Sh. Premjas Rai vide registered sale deed dated 20.12.1957 and thereafter on 29.06.1971, Sh. Premjas Rai had executed a sale deed in favour of the defendants no.1 and 2 vide registration no.4859, Volume I, Book No.260 and from pages 151 to 152 and since then defendant no.1 and 2 are in continuous and uninterrupted possession of the same till date. Thus, the plaintiffs have taken a false plea that, the defendants trespassed over the suit property on 03.04.1997.
14. It has been further stated that, the plaintiff has not come before the Court with clean hands and has suppressed material facts. The plaintiffs no.1 to 4 have filed suit for declaration against Sh. Premjas Rai, Sh. Goswami Yudhvir Puri, Sh. Goswami Paras Ram Puri and Sh. Tulsi Ram Seth with respect to sale deed dated 19.12.1957 and 25.06.1971 to be declared as null and void, the aforesaid suit was Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-8/49 9 returned back by the then Ld. SJIC for want of pecuniary jurisdiction.
15. It is further stated that, being aggrieved from said order, the plaintiffs have preferred the Civil Revision Petition before the Hon'ble High Court of Delhi, however, said petition was dismissed for non-prosecution vide order dated 09.05.1997. Thus, the story of the plaintiffs is concocted, motivated and self-contradictory.
16.It is further averred that the present suit is not maintainable in the present form i.e., in other words the provisions of Section 6 of Specific Relief Act are not applicable in the present case as the plaintiffs have falsely stated before the Court that they have been forcibly dispossessed by the defendants on 03.04.1997. It is stated that no corroborative evidence has been placed regarding their forcible removal from the suit premises. Thus, the suit of the plaintiffs is liable to be dismissed.
Replication: -
17.Thereafter replication to the WS of defendants was filed by the plaintiff denying the averments made in the WS.
Issues: -
18.From the pleadings of the parties, following issues were framed in the suit vide order dated 24.12.2004: -
1). Whether the suit is liable to be dismissed for absence of cause of action? OPD Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-9/49 10
2). Whether the suit has not been properly valued for the purpose of Court fees and jurisdiction? OPD
3). Whether the suit is liable to be dismissed in view of preliminary objection no.5? OPD
4). Whether the plaintiff is entitled for the relief of possession U/S 6 of the Specific Relief Act, as prayed for? OPP
5). Relief.
19.Thereafter the matter was fixed for plaintiff's evidence.
Plaintiff Evidence: -
20.In order to prove his case, the plaintiff got examined six witnesses i.e., Sh. Rakesh Kumar as PW-1, HC Rajinder Kumar as PW-2, Sh. Naresh Kumar as PW-3, Sh. Rakesh as PW-4, Sh. Raj Singh as PW-5 and Sh. Laxmi Narayan as PW-6 and they deposed as under: -
a). PW-1 Sh. Rakesh Kumar led his evidence by way of affidavit which is Ex. P-1, wherein he reiterated the averments made in the plaint. PW-1 also relied upon certain documents which are tendered in evidence from Ex. PW-1/1, PW-1/2, PW-1/3, PW-1/6 to 11 and PW-1/13 to 15. PW-1 was also cross-examined on behalf of Ld. counsel for defendant at length.
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b). PW-2 HC Rajinder Kumar, the Record Clerk, CPCR Record Branch, Katwaria Sarai, New Delhi being a summoned witness submitted that, the summoned record has been destroyed vide the orders of Ld. Assistant Commissioner of Police and he exhibited the attested copy of the said order as Ex.PW-2/1 (colly). PW-2 was not cross-examined on behalf of defendant despite opportunity.
c). PW-3 Sh. Naresh Kumar, Inspector from Circle-17, Wazirpur, Food & Supply Department being the summoned witness submitted that as per report dated 10.02.2016, the summoned record i.e., ration card no.3375 dated 17.09.1979 of Sh. Jain Singh, has been weeded out on or before 2010 with the prior permission of the higher authorities and exhibited the said report as Ex.PW-3/1. PW-3 was not cross-examined on behalf of defendant despite opportunity.
d). PW-4 Sh. Rakesh, Kanoongo from SDM Office, Saraswati Vihar, New Delhi brought the summoned record i.e., Khasra Girdwari pertaining to the year 1980-81, Khata no.36, Khasra No.677, 678, 679 situated in Village Wazirpur, Delhi and exhibited the photocopy of the same as Ex.PW-1/4 (colly) (OSR). PW-4 was also cross- examined on behalf of defendant.
e). PW-5 Sh. Raj Singh, Head Clerk from Voter Center, AC-17, Wazirpur, Ashok Vihar, Delhi brought a report Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-11/49 12 pertaining to election voter list for the year 1984 and 1991 and election voter survey of the same in regard of H.No.10, Sawan Park Extension, Ashok Vihar, Phase-III, Wazirpur constituency, Delhi-110052. As per the report given by Sh. Balbir Singh, Record Keeper, the concerned record which is summoned is not available in their office. He exhibited on record the report in this regard as Ex.PW- 5/1 (colly). PW-5 was not cross-examined on behalf of defendant despite opportunity.
f). PW-6 Sh. Laxmi Narayan, UDC from House Tax Department, 16, Rajpur Road, Civil Line brough the summoned record i.e., a mutation application in respect of plot no.10, bearing Khasra no.677/2 and 677/2 measuring 5 Biswas situated at Sawan Park Extension, Wazirpur Road, Delhi now built-up property known as H.No.10, Sawan Park Extension, Delhi moved by Sh. Ishwar Singh and Sh. Jai Singh dated 25.03.1991. He identified the said application on record and stated that it is the same which he has brought and same is already Ex.PW-1/15. PW-6 was also cross-examined on behalf of defendant.
Thereafter, vide separate statement, Ld. counsel for plaintiff closed PE on 05.11.2016 and defendant was given an opportunity to lead DE.
Defendant Evidence:
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21.The defendant got examined thirteen witnesses and they deposed as under:-
a). DW-1 Sh. Ranbir Singh, Record Keeper from Transport Department, Mall Road, North Zone, brought the summoned record i.e., the record pertaining to the driving license bearing no. DL-0119920118667 issued in the name of Sh. Yudhvir Puri. The driving license details are attested by M. Sunderiyan, Inspector at Mall Road office of the Transport Department. He exhibited on record the driving license details as Ex. DW-1/1.
DW-1 was also cross-examined on behalf of plaintiff and during cross-examination DW-1 also exhibited one document i.e., his office identity card as Ex. DW-1/P1.
b). DW-2 Sh. Sylvester Kujur, Inspector in the Food & Civil Supplies, Wazirpur, Ashok Vihar, Delhi brought the report signed by Food and Supplies officer at point A on all the three pages and exhibited the said report as Ex. DW- 2/1 (colly).
DW-2 was not cross-examined on behalf of plaintiff despite opportunity.
c). DW-3 Sh. Raj Singh exhibited on record the electoral roll of the locality Sawan Park Extension, Ashok Vihar, Delhi (running into 43 pages) as Ex. DW-3/1 (colly), attested copy of the voter list of the property bearing no.H.No.241, Wazirpur Village, Wazirpur, Delhi ad Ex.
Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-13/49 14 DW-3/2. It is stated by the witness that the summoned record is not available in their office. The record so summoned can be available at Kashmere Gate Office. This witness also brought reply regarding non-availability of the voter list of the property bearing plot no.10, Sawan Park Ext. and H.No.241, Wazirpur Village, Wazirpur, Delhi and with regard to the voter card, the same are exhibited as Ex. DW-3/3 to DW-3/5.
DW-3 was also cross-examined on behalf of plaintiff.
d). DW-4 Ms. Madhu Madan, UDC from Delhi Jal Board, Ashok Vihar, Delhi brought the original allotment register of Ashok Vihar Zone. It is stated by DW-4 that the water connection no.6547 was sanctioned in the name of Goswami Yudhvir Puri on 06.07.1984 at the address 10, Sawan Park Extension, Delhi and exhibited page no.182 as Ex. DW-4/1 (OSR). He also brought and exhibited on record the latest water bill with regard to the aforesaid connection as Ex. DW-4/2. The witness stated that the water bill Ex. DW-4/3 was also issued from their office. The water bill bearing the due date 21.12.1989 bears the correct sanction number and the payment entry through NCR machine at point X-1 and X-2. He also exhibited on record the bills for the period 19.01.1996 to 19.08.1996 and 19.08.1996 to 26.11.1996 as Ex. DW-4/4 and DW-4/5. DW4 was also cross-examined on behalf of plaintiff.
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e). DW-5 Sh. Asha Ram, Record Keeper from the office of MLO, GNCTD, IP Estate brought the summoned record with regard to the transfer of scooter no. DL-2SG-7109 in the name of Yudhvir Puri and exhibited the certificate issued by the MLO as Ex. DW-5/1. He also brought the complete file with regard to the process taken place for the transfer of the aforesaid vehicle in the name of Yudhvir Puri and exhibited the same as Ex. DW-5/2 (colly, OSR). DW-5 was also cross-examined on behalf of plaintiff.
f). DW-6 Sh. Jagdish Chand, Reader from the office of Labour Commissioner, Shop and Establishment Department, 5, Shyamnath Margh, deposed that the relevant summoned record is not available in their office as the same has been weeded out by the orders dated 20.06.2010 and exhibited on record the copy of the said order as Ex. DW-6/1 (OSR).
DW-6 was not cross-examined on behalf of plaintiff despite opportunity.
g). DW-7 Sh. Ashok Kumar, AG-1 from NDPL District Office, Keshav Puram brought and exhibited on record the attested copy of relevant summoned record of CA no.502- 1254596, which was installed in the name of Sh. Goswami Parmanand Puri at 10 Sawan Park Extension, Ashok Vihar, Phase-III, Delhi, as Ex. DW-7/1.
DW-7 was also cross-examined on behalf of plaintiff.
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h). DW-8 Sh. Laxmi Narayan, AZI from the office of House Tax Department brought and exhibited on record the copy of inspection report running in two pages as Ex. DW-8/1 (OSR) and the copy of the notice U/s 126 DMC Act as Ex. DW-8/2 (OSR). DW-8 deposed that after the beginning of self-assessment scheme in the year 2004, no house tax has been paid.
DW-8 was also cross-examined on behalf of plaintiff.
i). DW-9 Sh. Praveen Kumar Rana, UDC from Sub- Registrar-I, Kashmere Gate, Delhi brought the summoned record and exhibited on record the original agreement as Ex. DW-9/1.
DW-9 was not cross-examined on behalf of plaintiff despite opportunity.
j). DW-10 Sh. P.C. Tiwari, UDC, Land & Building Department, Vikas Bhawan, I.P. Estate stated that despite making all possible efforts with all the branches in tracing the records or file, the same is not available. DW-10 was not cross-examined on behalf of plaintiff despite opportunity.
k). DW-11 Sh. Raj Singh, Head Clerk from Motor Center, Ac-17, Wazirpur, Nimdi Colony, Ashok Vihar brought the voter list of the Wazirpur Constituency pertaining to the year 1980, 1993 and 1998 and exhibited the attested copy of the same as Ex. DW-11/1, DW-11/2 and DW-11/3.
Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-16/49 17 DW-11 was not cross-examined on behalf of plaintiff despite opportunity.
l). DW-12 Sh. Chetan Sharma stated that earlier he was residing at A-91A, Harihar Apartment, Phase-II, Ashok Vihar, Delhi. It is stated that he had taken a shop at pot no.10, Sawan Park, Ground Floor on rent in the year 1992 from Sh. Yudhvir Puri. A rent agreement was also executed in respect to the same, however, it is stated that he does not have the copy of the same. The witness was shown the original rent agreement and he pointed out his signatures at point A on every page. He further stated that the signatures of Sh. Yudhvir Puri might be at point B. He exhibited on record the said rent agreement as Ex. DW-12/1. It is stated that he vacated the shop in the year 2004 and no document was prepared at the time of vacation of the said shop. He exhibited on record the accompanying affidavit as Ex. DW-12/2 bearing his signature at point A. DW-12 was also cross-examined on behalf of plaintiff.
m). DW-13 Sh. Goswami Yudhvir Puri led his evidence by way of affidavit which is Ex. DW-13/A. DW-13 also relied upon a plethora of documents which are tendered in evidence as Ex. DW-13/1, 2, 4, 6 to 13, 18 to 23, 27 to 39 and not being reproduced for the sake of brevity. DW-13 was also cross-examined on behalf of Ld. counsel for plaintiff at length.
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Decision with reasons:
22.The final arguments were extensively heard on behalf of both the parties at length and the entire record has been carefully perused. Further, detailed written final arguments were also filed on behalf of both the sides, same is a part of record and has been thoroughly perused. The contents of the same are not being reproduced herein for sake of brevity, though have been discussed at relevant junctures.
Now, this Court shall give its issue-wise findings as mentioned below:-
23. Issues no. (1):
1). Whether the suit is liable to be dismissed for absence of cause of action? OPD The onus of proving this issue rests upon the defendant.
This issue has arisen from the pleadings of the defendant, wherein it has been mentioned that, the present suit has been wrongly and malafidely filed by the plaintiffs against the defendants; therefore, the suit is liable to be dismissed for absence of cause of action against the defendants since, defendants are the owners in possession of the suit property as a matter of right.
Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-18/49 19 Though except for raising this issue, no separate evidence has been led by the defendants, except to prove and discharge the onus cast upon them that, they are in the possession of the suit property and have not dispossessed the plaintiffs, forcibly or otherwise, as is being claimed by the plaintiff. Nevertheless, in this regard, the germane law is enshrined under Order VII Rule 11 of the Code of Civil Procedure, 1908, which provides for rejection of plaint on the ground of non-disclosure of cause of action or lack of cause of action and reads as under:
"11. Rejection of plaint. - The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action
(b) xxx;
(c) xxx;
(d) xxx;
(f) xxx:
[xxx]"
[Emphasis Supplied] The law on rejection of plaint U/O 7 R 11 CPC is well settled that, if upon comprehensive reading of the contents of the plaint alone along with the documents annexed along with the plaint, if any, the Court comes to a conclusion that, the cause of action in favour of the plaintiff has not been clearly and unambiguously disclosed, then the plaint is liable to be rejected at once. The Courts are empowered to exercise this power upon Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-19/49 20 application or suo-moto and the same is a mandatory provision. The purpose behind such a provision is to nip in the bud the false, frivolous and vexatious proceedings. Further, the essential considerations for rejecting the plaint U/O 7 Rule 11 CPC are that, only the contents of the plaint along with the documents annexed with the plaint are germane and the defence of the defendant cannot be considered at this stage.
At this stage, it is pertinent to mention that a cause of action is a bundle of facts which affords opportunity to a party to institute a legal proceeding on the ground that there was a legal right in such a party and the same has been violated by the opposite party. It is further the settled proposition of law of pleadings as enshrined U/O 6 & 7 of the CPC that, all the instances which gives rise to a cause of action in the plaintiff must be clearly and explicitly pleaded in the plaint, so as to sufficiently explain and aver the facts due to which the cause of action has inhered in the plaintiff such as date, time, place, mode and manner etc. Further, it has been held by the Hon'ble Supreme Court of India in the case of Ramisetty Venkatanna & Anr. Vs. Nasyam Jamal Sahib & ORs. (Civil Appeal 2717 of 2023) as follows: -
Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-20/49 21 5.1 In the case of T. Arivandandam (supra) in paragraph 5 while considering the provision of Order VII Rule XI, this Court has observed as under: "5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to.
From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful -- not formal -- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-21/49 22 under Order 10 CPC. An activist Judge is the answer to irresponsible law suits."
5.2 In the case of Sopan Sukhdeo Sable Vs. Charity Commr., (2004) 3 SCC 137 in paras 11 and 12, this Court has observed and held as under:
"11. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-22/49 23 at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467].)"
5.3 In the case of Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal, (2017) 13 SCC 174, this Court observed and held as under: "7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-23/49 24 have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage." 5.4 In the case of Ram Singh Vs. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364, Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-24/49 25 this Court observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation. Similar view has been expressed by this Court in the case of Raj Narain Sarin (supra).
6. Applying the law laid down by this Court in the aforesaid decisions on the applicability of Order VII Rule XI to the facts of the case on hand, we are of the opinion that the plaint ought to have been rejected in exercise of powers under Order VII Rule XI(a) and (d) of CPC being vexatious, illusory cause of action and barred by limitation. By clever drafting and not asking any relief with respect to partition deed dated 11.03.1953, the plaintiffs have tried to circumvent the provision of limitation act and have tried to maintain the suit which is nothing but abuse of process of court and the law."
[Emphasis Supplied] Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-25/49 26 At the same time, it has been held by the Hon'ble Apex Court in the case of Gurdev Singh vs Harvinder Singh SLP(C) 19018/2022 as follows:
"The application preferred by the petitioner to reject the plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (CPC) has been dismissed by the Trial Court which has been confirmed by the High Court. It is the case on behalf of the petitioner that the plaintiff is not entitled to any relief in the suit. The aforesaid cannot be a ground to reject the plaint at the threshold in exercise of powers under Order 7, Rule 11 of the CPC. The learned Trial court has rightly rejected the application under Order 7, Rule 11 of the CPC, which is rightly not interfered with by the High Court. We are in complete agreement with the view taken by the High Court. The Special Leave Petition stands dismissed."
[Emphasis Supplied] In the matter at hand the perusal of plaint transpires that, upon the bare and a meaningful reading of the plaint, it clearly transpires that there exists a cause of action in the plaintiff i.e., there are certain triable issues which must be decided having regard to the merits of the case. It is Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-26/49 27 needless to say that, having a cause of action is not akin to having proved the same automatically, since the same needs to be proved by leading evidences. At the most, it can be said that, the plaintiffs have certain legal grievance(s) against the defendants, but the plaintiffs will have to prove the same. At the same time, merely on the averments of the defendants that, the case of the plaintiffs is not maintainable as there is no cause of action to entitle the plaintiff to get the reliefs sought, cannot be a ground to reject the plaint or dismiss the suit.
Therefore, issue no. (1) is decided in favor of the plaintiffs and against the defendants
24. Issues no. (2): -
2). Whether the suit has not been properly valued for the purpose of Court fees and jurisdiction? OPD The onus of proving this issue rests upon the defendants.
This issue has arisen from the pleadings of the defendant, wherein it has been mentioned that, the plaintiff has deliberately and intentionally undervalued the relief claimed in the plaint in order to escape themselves from the mandate of paying proper court fees. It has been mentioned in preliminary objections in the written statement that, the defendants are in possession of the suit property for past 30 years and more. That, they applied for grant of loan after mortgaging the suit property with the Delhi Financial Corporation, Connaught Place, Delhi and a Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-27/49 28 sum of Rs.03,95,000/- was sanctioned towards the loan, sometime prior to the institution of the suit.
It has been further mentioned that, in the year 1991 the MCD had sent a notice under Section 126 of the Delhi Municipal Corporation Act wherein they proposed to raise the ratable value of the property in question from Rs.97,391 to Rs.01,05,180/- w.e.f. 01.04.1991 onwards. Therefore, it has been contented on behalf of the defendants that, even at the time of institution of the present matter, the market value of the suit property was more than Rs.10,00,000/-. Therefore, it was argued on behalf of defendants that, the plaintiffs have improperly valued the relief for the purpose of the Court fees and suit valuation and therefore, liable to be dismissed.
At this stage, it is prudent to discuss Schedule I, Article 2 of the Court-fees Act,1870 which provides that, in a suit for possession under Section 9 of Specific Relief Act, 1877 (now Section 6 of the Specific Relief Act, 1963) half of the court-fee payable is to be paid in a suit under Section 6 of the Specific Relief Act. It is the settled proposition of law on the court fees and suit valuation that, a payment of higher court-fee would not determine the nature of the suit. Rather, the same is to be determined from the nature of relief sought on the assertion in the plaint.
Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-28/49 29 Furthermore, in the present matter, the defendants except for raising this issue, have not placed any document on record in support of the aforesaid averments, more so specifically the ones as referred to by them above. Further, no separate evidence, documentary or ocular, has been led by the defendants to show that the value of the suit property was beyond the pecuniary jurisdiction of this Court as on the date of institution of this suit. Therefore, the defendants have not substantiated their objections with any material and have thus failed in discharging the onus cast upon them.
Therefore, issue no. (2) is decided in favor of the plaintiffs and against the defendants.
25.Issues no. (3):
3). Whether the suit is liable to be dismissed in view of preliminary objection no.5? OPD The onus of proving this issue rests upon the defendant.
W.r.t preliminary objection no. (5) mentioned in the WS of the defendants, the contents of the same are being reproduced hereunder for convenience:
"5. That the plaintiff has not come before this Hon'ble Court with clean hands and has suppressed material facts from this Hon'ble Court. It is stated that the plaintiff no. 1 to 4 have filed suit for declaration against Sh. Premjas Rai, Sh. Goswami Yudhvir Puri, Sh.
Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-29/49 30 Goswami Paras Ram Puri and Sh. Tulsi Ram Seth whereby they sought the declaration of decree in respect of sale deed dated 19.12.1957 and 25.06.1971 to be declared as null and void, the aforesaid suit of the plaintiff was returned back by the Ld. Court of Sh. I.C. Tiwari, the then SCJ for want of pecuniary jurisdiction. Being aggrieved against the said order the plaintiffs have preferred the Civil Revision Petition before the Hon'ble High Court of Delhi but the said Revision Petition was dismissed for non-prosecution vide orders dated 9th May 1997. Hence, in these circumstances, the story put forth by the plaintiffs in their case is wholly concocted, motivated (with a view to grab the possession over the plot no. 10 which is under use and occupation of the defendants) and self- contradictory, therefore, unreliable and false. In these circumstances suit filed by the plaintiff deserves to be dismissed with exemplary costs."
[Emphasis Supplied] The defendants in support of this claim have tendered in evidence the certified copy of the order of return of plaint for lack of pecuniary jurisdiction being valued at Rs.01,28,000/- dated 04.04.1981 as Ex. DW-13/7 and certified copy of the revision petition and proceedings/ order sheets as Ex. DW-13/8 and Ex. DW-13/9. The Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-30/49 31 averments of the defendants have merit to the extent that, the plaintiffs have suppressed this fact from the Court and has come to this Court with unclean hands. Though, this may amount to drawing an adverse inference against the plaintiffs. However, same cannot be taken as a ground to out rightly dismiss the suit of the plaintiff; since, it is the settled law that an order of return of plaint or dismissal for non-prosecution do not operate as a decree/deemed decree and therefore, does not attract the doctrine of res judicata.
Therefore, issue no. (3) is decided in favor of the plaintiffs and against the defendants.
26.Issues no. (4):
4). Whether the plaintiff is entitled for the relief of possession U/S 6 of the Specific Relief Act, as prayed for? OPP The onus of proving this issue rests upon the plaintiff.
The present suit has been filed under Section 6 of the SRA on the cause of action that, the defendants trespassed over the suit property on 03.04.1997, took the illegal possession of the suit property and have even raised constructions thereon illegally and forcibly. Therefore, before adverting further, let us first discuss the law applicable. Section 6 of the Specific Relief Act, 1963, is an extra-ordinary provision and a self-contained code in itself. Section 6 of the SRA provides as follows:
Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-31/49 32 "6. Suit by person dispossessed of immovable property. -- (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person [through whom he has been in possession or any person] claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought--
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof."
[Emphasis Supplied] Section 6 of the Specific Relief Act, 1963 clearly states that, when a person is wrongfully and illegally deprived of possession of his immovable property, the person may either sue himself or through any other person, under whom such person is claiming, may also sue to recover the possession of the suit property. Section 6 is aimed at Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-32/49 33 providing expeditious remedy against such wrongful acts and henceforth, there shall lie no appeal against any order or decree in any suit instituted under this section, nor shall any review of such decree or order be allowed. However, institution of a suit under Section 6 of the Specific Relief Act does not bar the aggrieved party to seek the relief under Section 5 of the said Act i.e. for the recovery of immovable property on the basis of title.
Therefore, the crux of Section 6 rests on two essentials i.e., the only things which the plaintiff is required to prove, in order to get a decree of possession under Section 6 of the SRA is that, the plaintiff was in the juridical possession of the suit property and that, he had been wrongfully dispossessed without his consent and without following the due process of the law. Further, in addition to the settled principles with respect to institution of suits and form of pleadings as per CPC, the alleged dispossession must have taken place within six months from the date of institution of the suit. The jurisprudential essence behind such an enactment is to provide speedy remedy for the aggrieved person who was in the physical and settled possession of the suit property and has been forcibly dispossessed from it against his will and consent. It aims at discouraging the individuals from such committing such illegal acts by taking the law in their hands. To state the same in the words of Pollock and Mulla, 'disputed rights are to be decided by the due process of law and not Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-33/49 34 otherwise and existing peaceable possession will be protected against disturbance without regard the question of its origin.' It has been held in the case of Sanjay Kumar Pandey & Ors. vs Gulbahar Sheikh & Ors., [(2004) 4 SCC 664] as follows:
"A suit under Section 6 of the Act is often called a summary suit inasmuch as the enquiry in the suit under Section 6 is confined to finding out the possession and dispossession within a period of six months from the date of the institution of the suit ignoring the question of title. Sub- Section (3) of Section 6 provides that no appeal shall lie from any order or decree passed in any suit instituted under this Section. No review of any such order or decree is permitted. The remedy of a person unsuccessful in a suit under Section 6 of the Act is to file a regular suit establishing his title to the suit property and in the event of his succeeding he will be entitled to recover possession of the property notwithstanding the adverse decision under Section 6 of the Act. Thus, as against a decision under Section 6 of the Act, the remedy of unsuccessful party is to file a suit based on title. The remedy of filing a revision is available but that is only by way of an exception; for the Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-34/49 35 High Court would not interfere with a decree or order under Section 6 of the Act except on a case for interference being made out within the well settled parameters of the exercise of revisional jurisdiction under Section 115 of the Code."
[Emphasis Supplied] Now, let us discuss the factual circumstances of the matter at hand. In the light of the law as citied above, the plaintiff in this matter is required to prove the following points:
i. That, as on 03.04.1997 the plaintiffs were in juridical possession of the suit property;
ii. That, the plaintiffs were wrongfully and illegal dispossessed by the defendants without their consent and without following the sue process of the law and;
iii. That, the suit seeking decree under Section 6 of the Specific Relief Act, 1963 has been instituted within a period of six months from the date of alleged dispossession.
Therefore, the proposition of law under Section 6 of the Specific Relief Act, 1963 stands settled by the celebrated case of Sukhjeet Singh vs Sirajunnisa, [AIR 2001 MP 59], which has stood the test of time and has held as follows:
Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-35/49 36 "10. As has already been stated that the moot question lies whether there has been forcibly dispossession. This is the basic ingredient of the section. In the case of M.C. Chockalingam v. Manickavasagam, AIR 1974 SC 104 the Apex Court observed as follows: - "13. ... All that Section 6 (new) of the Specific Relief Act provides is that a person, even if he is a landlord, cannot take the law into his own hands and forcibly evict a tenant after expiry of the lease. This section has relevance only to the wrongful act of a person, if it be by the landlord, in forcibly recovering possession of the property without recourse to law. Section 6 frowns upon forcible dispossession without recourse to law but does not at the same time declare that the possession of the evicted person is a lawful pos- session. ..."
12. In this context I may usefully refer to the case of Onama Glass Works (AIR 1966 MP 282) (supra) wherein Bhargava, J was dealing with the consent with regard to handing over of pos session by a Company. In that case the Board of Directors of Company by resolution transferred the company's property but no resolution was passed by the General Body of Shareholders.
The Court opined as under: Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-36/49 37 "8. .... This section becomes applicable only when the plaintiff is dispossessed 'without his consent.' The matter in issue is not whether the transaction was valid but whether the plaintiff was dispossessed 'without his consent'. ...." The facts of the present case are to be tested on the touchstone of the aforesaid enunciation of law. The Court is not required to delve into the illegality of transaction. The Court has to see whether there was consent at the time of hand ing over of possession. Mr. Rajeev Shrivastava, learned counsel for the nonapplicant, has im pressed upon this Court that there was misrepre sentation to the tenant that the premises in ques tion would be handed over after marriage cere mony was over and hence, the consent obtained under these circumstances would not amount to real consent. Though of first flush this con tention looks attractive, on a close scrutiny I am of the view that it has no legs to stand upon. At the time of delivery of possession there was ad idem between the parties and the possession was delivered by the tenant/plaintiff. The possession was given out of total volition. There was no ap plication of force of any kind in the most remote Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-37/49 38 sense. If the plaintiff was deceived later on, that will be a matter of regular suit but it cannot come within the ambit and sweep of Section 6 of the Act."
[Emphasis Supplied] In the present matter profuse ocular and documentary evidence has been led on behalf of both the sides. The brief case of the plaintiff is that, Sh. Bhagwana and Sh. Tulsi Ram Seth were declared joint Bhumidars of half shares of Khasra no.s 780/659, 660; 638 and 639 min; 781/659, 676, 677, 678, 679 min; 840/805/644, 441, 443, 444, 449, 707 min; 824/439, 642 min. situated in Village Wazirpur, Delhi each vide order of the Revenue Assistant dated 03.12.1966 and thereafter mutation was also sanctioned on 27.08.1968; accordingly, the plot bearing no.10, Swarn Park Extension, Wazirpur, Delhi i.e., the suit property fell to the share of Sh. Bhagwana. That, consequently the plaintiffs are claiming to be the owner in possession of the suit property, until 03.04.1997 when the defendants allegedly dispossessed the plaintiffs without their consent and without following the due process of the law.
At this stage, it is not out of place to say that while deciding this issue, the fact of ownership of the suit property with the plaintiffs is not a sine qua non. Rather, what is to be seen by this Court is that, as on 03.04.1997 Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-38/49 39 the plaintiffs were in the settled lawful possession of the suit property and that they were forcibly dispossessed by the defendants without consent and without following the due process of the law.
In order to prove the factum of juridical possession with the plaintiffs, the plaintiffs have placed reliance on Ex. PW-1/1 i.e., certified copies of Khatoni in Urdu, though the same is not accompanied with any translated true copy. Plaintiff has further placed reliance on Ex. PW-1/2 and 3 i.e., certified copy of compromise dated 06.11.1963 and Hindi translation thereof, respectively. The perusal of said documents transpires that, though it contains the names of Sh. Bhagwana. However, the same does not explicitly mention the fact that the suit property i.e., House No. 10, Swarn Park Extension, Wazirpur, Delhi vested in the plaintiffs. Further, neither pleadings of plaintiff nor any document mentions that, in which Khasra number does the suit property falls. Further, the Hindi translation i.e., Ex. PW-1/3 also does not bear the name, signature, attestation of the translator and the same has also been admitted by the PW-1 during his cross-examination. Therefore, same is not a reliable piece of evidence.
Further, the plaintiff has placed reliance on Ex. PW-1/6 i.e., certified copy of the order of the SDM dated 12.06.1972 which proves the claim of the plaintiffs that, the proceedings under Section 145 of the Code of Criminal Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-39/49 40 Procedure, 1973 were terminated in favour of the Sh. Bhagwana i.e., the father of the plaintiffs and it was upheld that, two months prior to Kalandara case in 1969 Sh. Bhagwana was in the possession of the suit property. Therefore, it can be deciphered that during the period of 1969, the plaintiff side was in possession of the suit property. Though, the defendants herein were not a party to above-said proceedings and further these documents cannot be taken as a conclusive proof of fact of possession of suit property with the plaintiffs at the time of alleged dispossession on 03.04.1997 due to long paucity of time. It is further pertinent to mention here that, no other substantive ocular or documentary evidence has been led on the specific point that, on the date of alleged dispossession by the defendants on 03.04.1997, the plaintiffs were in the actual physical possession of the suit property.
Further, Ex. PW-1/7 i.e., certified copy of judgment dated 25.08.1989 dismissing the relief of permanent injunction sought by the defendants herein; Ex. PW-1/8 i.e., certified copy of judgment of dismissal of appeal dated 27.09.1994 filed by the defendants herein. However, the same also does not go onto proving that, the plaintiffs were in the possession of the suit property. Further, it also pertains to a dispute between the parties herein at about 1989.
Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-40/49 41 It is further noteworthy that, even during cross- examination, the PW-1 either merely denied the suggestions or failed to reply for want of personal knowledge the majority of the questions put by the opposite side. The PW-1 could not even affirm or prove the contents of his own evidence affidavit. Furthermore, the summoned witnesses of the plaintiffs could also not place anything material on the record so much so, either the record was not available/not existing/ weeded-out or the plaintiff failed to take further necessary steps to further summon the concerned record from the concerned witnesses.
Per contra, it has been averred on behalf of the defendants and also stated during the cross-examination by the defendant no. 1/DW-1 that, the suit property was purchased by them in the year 1971 and thereafter constructed eight shops at the suit property which were leased to several persons from time to time. Though no document of purchase has been placed on record. However, at the same time the defendants have placed on the record the lease deeds which were executed between the defendants and their lessees which are tendered in evidence as Ex. DW-13/12 dated 18.09.1991; Ex. DW- 13/18 dated 13.05.1994; Ex. DW-13/20 dated 18.01.1995; Ex. DW-13/22 dated 22.04.1995 along with affidavits of no-claim from the lessees i.e., Ex. DW-13/13; Ex. DW- 13/19; Ex. DW-13/21. Defendant further got examined Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-41/49 42 DW-12, who testified that he was one of the lessees of the defendants and took a shop situated at the suit property on lease from the defendants and the said rent agreement was tendered as Ex. DW-12/1 and affidavit as Ex. DW-12/2. DW-12 was cross-examined on behalf of the plaintiffs, though no material contradiction could be brought out.
It has been further placed on record that, the plaintiffs instituted a suit seeking the relief of declaration against the defendants thereby seeking declaration of their sale deeds dated 19.12.1957 and dated 25.06.1971 as null and void and valued the relief at Rs.01,28,000/-. However, the same was returned by the concerned Ld. Court being beyond pecuniary jurisdiction tendered in evidence as Ex.DW-13/7 dated 04.04.1981. Thereafter, the revision filed on behalf of the plaintiffs herein was also dismissed and tendered as Ex. DW-13/8 and Ex. DW-13/9. Further, certified copies of the order of the SDM, Patel Nagar in Kalandra proceedings against defendants herein, which was dismissed vide order dated 19.10.1982. It is noteworthy, that the plaintiffs never further challenged the title of the defendants nor any material to this effect has been placed on record. Further, the plaintiffs did not place these documents on record as the same would have amounted to the admission of knowledge of sale deeds with respect to the suit property in the favour of defendant. Whether the sale deeds are valid or not is not a question before this Court. However, it implores this Court to draw an adverse Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-42/49 43 inference against this conduct of the plaintiffs of not coming to the Court with clean hands and suppressing material facts.
It is further pertinent to mention that, the defendants have tendered in evidence a plethora of documents showing the suit property as their residential address. DW-13 has tendered Ex. DW-13/1 i.e., certified copy of the order of mutation of names of defendants in revenue records dated 20.06.1980. Per contra, PW-1 has admitted during his cross-examination that, the plaintiffs have not got their names mutated in revenue records till date. Further, defendant has tendered house tax inspection report dated 23.03.1981 as Ex. DW-13/2 and assessment order dated 20.01.1999 for the period of 1991 to 1999 as Ex. DW-13/4. The defendants have placed on record the voter list and electoral record for the years 1984, 1987 and 1993 as Ex. DW-13/24, 27 and 28. Though DW-3 from the Electoral Office could not bring the other record summoned stating that, the same may be available with Kashmiri Gate Office, though no further record was summon therefrom.
Defendants have further tendered electricity bills for the years 1990 to 1994 as Ex. DW-13/29 (OSR); water bills for the months of July to September 1989 as Ex. DW- 13/31; Ex. DW-13/31A being the voter identity card of the defendant dated 19.05.1995; Copy of passport of the defendant issued on 25.09.1986 as Ex. DW-13/32 (OSR); sewer challans and receipts dated 21.10.1987 as Ex. DW-
Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-43/49 44 13/33 and 34 (OSR); Shop establishment certificates as suit property dated 25.10.1980; certain postcards bearing correspondence address of suit property and addressed to the defendant dated 30.05.1981 and 10.04.1987 tendered as Ex. DW-13/36 and 37; house tax receipts for the years 1993-1994 and 1995-1996 as Ex. DW-13/40. It is further pertinent to mention that, during cross-examination PW-1 was asked if plaintiffs have placed any documentary proof of electricity/ water connection at the suit property in their names or any letters of correspondence or house tax receipts or mutation record. However, the same was conceded to by the PW-1 that, no such record has been placed. Further Ex. PW-1/13 i.e., carbon copies given by election officers have not been proved by calling the concerned witnesses. Further, a meaningful reading of Ex. PW-1/15 i.e., an application made by the plaintiffs to MCD for change of name in mutation record dated 25.03.1991 transpires that, admittedly at that relevant time, defendants name stood in mutation records which was sought to be changed by the plaintiffs on the ground of collusion. However, neither same has been done till date by the concerned authorities for reasons best known to them nor plaintiffs have challenged the same before the concerned authority.
Further, w.r.t fact of forcible dispossession of the plaintiffs from the suit property by the defendants, no material has been placed on record by the plaintiff side, except for Ex.
Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-44/49 45 PW-1/11 i.e., the written complaint to the S.H.O dated 31.03.1997. However, the same has not been proved by the plaintiffs by calling the concerned official from the Police Authorities. Further, the same was conceded to by the PW- 1 that, he is not aware if any other document to this effect has been placed on record. Further, it has been conceded by PW-1 that, he is not aware if police authorities took any further action on this complaint or not. Further, no other documentary or ocular evidence, including testimony of neighbors, photographs or video etc., has been led on behalf of the plaintiffs to show and prove the fact of alleged forcible and wrongful dispossession by the defendants. Consequently, having regard to the evidence led on both sides, it is sufficiently clear that, firstly, plaintiffs have admitted the fact of some title in the defendants along with revenue records, utility bills and government issued identity proofs, though alleged to have been obtained out of collusion, however, same is not to be determined by this Court due to the limited purpose of the suit and relief sought. Secondly, plaintiffs have failed to prove the fact that as on 03.04.1997 also they were in the physical and actual possession of the suit property, let alone being dispossessed illegally.
Hence, this Court is of the considered opinion that, the plaintiffs have failed in proving their own case. It is the established law, that the general burden of proving the case rests upon the plaintiff in a civil suit and therefore, the case Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-45/49 46 of the plaintiff must stand on its own legs. Section 101 of the Indian Evidence Act, 1872 provides as under:
"Section 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."
[Emphasis Supplied] In this regard, it has been held in the recent landmark judgment of the Hon'ble Apex Court in the case of Smriti Debbarma (Dead) Through LRs V. Prabha Ranjan Debbarma & Ors [Civil Appeal no. 878 of 2009; Janaury 04, 2023] that, "The onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit."
Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-46/49 47 It has been further observed as follows:
"31. The burden of proof to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief. This is mandated in terms of Section 101 of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions, but in the factual background of the present case, the general principle is applicable. In terms of Section 102 of the Evidence Act, if both parties fail to adduce evidence, the suit must fail. Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit. The plaintiff could have succeeded in respect of the Schedule 'A' property if she had discharged the burden to Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-47/49 48 prove the title to the Schedule 'A' property which squarely falls on her. This would be the true effect of Sections 101 and 102 of the Evidence Act. Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed (...)."
[Emphasis Supplied] Henceforth, it is no more res integra that, the case of the plaintiff has to stand on its own leg and cannot take the advantage of discrepancy in the case of the defendants. In the present matter, it was for the plaintiffs to primarily prove the fact of actual juridical possession of the suit property with them at the relevant date and, that the question of forcible dispossession comes only second. Therefore, the plaintiffs have failed to discharge the burden of proving the case on the scale of preponderance of probabilities. It is needless to say that, neither the question of a valid title in any party is before this Court, nor the same has been gone into. However, suffice to say that, plaintiffs are not entitled to the specific and limited relief sought by them under the purview of Section 6 of the Specific Relief Act, 1963.
Therefore, issue no. (4) is decided against the plaintiffs and in favor of the defendants.
Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-48/49 49
27. (5) Relief - In view of the findings given on issues no. (1) to (4), documents placed on record, pleadings of the parties and evidence led by the parties, cross-examination of the witnesses, the plaintiffs have grossly failed to prove their case on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiffs is hereby dismissed.
Parties are to bear their own costs.
The costs imposed upon any party during the course of proceedings and not paid by the said party be recovered as per rules from the said party.
Thereafter, decree sheet be prepared accordingly.
File be consigned to record room after completing the necessary formalities.
Digitally signedDISHA by DISHA SINGH SINGH Date: 2023.11.23 17:48:59 +0530 (This judgment contains 49 pages and each page (DISHA SINGH) has been signed by the undersigned) Civil Judge-02, West, Announced in the open Court Tis Hazari Courts, Delhi on 20.11.2023 Suit No.612512/2016 Ishwar Singh Vs. Goswami Yudhvir Puri Page-49/49