Delhi District Court
Major Mohan Singh vs . Shri Narain Singh (Since Deceased) ... on 18 June, 2020
Major Mohan Singh vs. Shri Narain Singh (since deceased) through Lrs
RCA DJ ADJ No. 100/2017
IN THE COURT OF SHRI TARUN YOGESH
ADDL. DISTRICT JUDGE03: SOUTH WEST DISTRICT:
DWARKA COURTS: NEW DELHI
Regular Civil Appeal No. 100/2017
CNR No. DLSW010076882017
In the matter of:
Major Mohan Singh
S/o Shri Amar Singh
R/o C2/B/84B
Janak Puri, New Delhi58 ..... Appellant
Versus
Shri Narain Singh (since deceased)
Through his LRs
i) Smt. Attar Kaur
Widow of Late Shri Narain Singh
ii) Shri Dilawar Singh
Son of Late Shri Narain Singh
iii) Shri Shamsher Singh
Son of Late Shri Narain Singh
iv) Shri Mahender Singh
Son of Late Shri Narain Singh
All residents of:
RZ82, Village Dabri, New Delhi. .....Respondents
PAGE NO.1/22 D.O.D.18.06.2020
Major Mohan Singh vs. Shri Narain Singh (since deceased) through Lrs
RCA DJ ADJ No. 100/2017
Date of Institution of Appeal : 13.07.2017
Date on which judgment was pronounced : 18.06.2020
: JUDGMENT :
1. Appeal impugning judgment and decree dated 24.04.2017 dismissing plaintiff's suit passed by Ld. Civil Judge09, Central District, Tis Hazari Courts, Delhi has been taken up for judgment in view of Order No. 7306 to 7363/DJ/NK/DWK/2020 dated 04.05.2020 of Ld. District & Sessions Judge, SouthWest District, Dwarka Courts, New Delhi pursuant to directions of Hon'ble High Court of Delhi communicated through the Ld. Registrar General vide Letter No. R123/RG/DHC/2020 Dated 30.04.2020.
2. A brief outline of dispute between parties is necessary for appreciating the facts set out in the plaint.
2.1 Shri Narain Singh (since deceased) filed Civil Suit No.239 of 1988 (107/2000) for restraining Shri Mohan Singh (plaintiff /appellant) and Shri Inder Singh Munjal from dispossessing him from plot/Gher measuring 400 sq. yds. out of Khasra No.10, Rectangle No.27, Village Dabri, New Delhi by claiming possession of plot for more than 14 years; construction of boundary wall and four shops (3 shops on front side and one shop on the southern side of the Gher) and electricity connection in the name of his son Shri Shamsher Singh which was sanctioned on 05.02.1975. The suit was contested as false, misconceived and untenable in law by Shri Mohan Singh and Shri Inder Singh Munjal by stating that plot measuring 375 sq. yds. forming part of rectangle No.27, Killa No.10 in village Dabri was owned by Smt. Hukam Devi who sold the property to Shri Shiv Ram, Shri Surat Ram and Shri Parshottam Ram Verma vide registered sale PAGE NO.2/22 D.O.D.18.06.2020 Major Mohan Singh vs. Shri Narain Singh (since deceased) through Lrs RCA DJ ADJ No. 100/2017 deed dated 26.04.1971 and the plot was thereafter sold to Shri Inder Singh Munjal for sale consideration of Rs.13,125/ vide Agreement of Sale, Irrevocable Power of Attorney and Affidavit dated 04.02.1978. Physical possession of the plot was handed over to defendant No.2 who constructed four shops with boundary wall and gate and the shops were let out to tenants namely Shri Shyam Chand, Shri Kapoor Chand, Shri Rameshwar and Shri Rajender Kumar who started paying regular rent to Shri Inder Singh Munjal. The plot was subsequently sold to Shri Mohan Singh vide Sale Agreement dated 20.05.1988 for valuable consideration of Rs.25,000/ received through DD No.486090 dated 19.05.1988 drawn on SBI, New Delhi and DD No.159167 dated 20.05.1988 drawn on PNB, Delhi Cantt. for Rs.12,500/ each and Shri Mohan Singh being owner in possession continued to collect monthly rent from tenants who attorned him as their landlord. Submissions were heard upon application for interim relief filed in Civil Suit No.239/88 and status quo order was passed by Shri J.P.S. Malik, the then Ld. SubJudge, Delhi vide order dated 15.07.1988. Another application under Order VI Rule 17 CPC was also filed by Shri Narain Singh for mentioning correct khasra number of the plot as 27/15 instead of 27/10 after proper verification from concerned authorities and the earlier suit for permanent injunction was eventually withdrawn by Shri Narain Singh on 28.08.2000. 2.2 Shri Narain Singh, in addition, also lodged complaint dated 07.06.1988 addressed to SHO PS Dabri alleging theft of electric meter connection bearing Consumer No.K770488 from disputed plot/shop in the intervening night of 06.06.1988 and 07.06.1988 and 'Cancellation Report' filed by the Investigating Officer in FIR No.78/88 under Section 380 IPC PS Dabri on the basis of investigation and statements recorded under Section 161 Cr.P.C. was accepted by Mrs. R. Kiran Nath, the then Ld. M.M. on 18.02.1989 by observing that complainant Shri Narain Singh had registered PAGE NO.3/22 D.O.D.18.06.2020 Major Mohan Singh vs. Shri Narain Singh (since deceased) through Lrs RCA DJ ADJ No. 100/2017 false complaint of theft of electric meter with ulterior motive to show his possession in view of civil dispute with Shri Mohan Singh and directing to initiate proceedings under Section 182/211 IPC against Shri Narain Singh.
2.3 Dispute over suit property also led to Kalandra under Section 145 Cr.P.C. filed in the court of SDM, Patiala House, New Delhi by impleading Shri Narain Singh, Major Dilawar Singh and Shri Shamsher Singh as First Party and Major Mohan Singh an Shri Kapoor Chand as Second Party wherein it was reported by SHO, PS Dabri that plot No. 27/10, measuring 375 sq. yds. was purchased by Smt. Amarjit Kaur W/o Shri Inder Singh who went abroad leaving the plot under supervision of her neighbor Shri Narain Singh who constructed 45 shops in the plot in her absence without consulting the owner. Smt. Amarjit Kaur being surprised to find newly constructed shops in the plot after returning from abroad settled the matter with Shri Narain Singh but remained doubtful of his intention and thereafter sold the property to Shri Mohan Singh who tried to take over possession of the plot and shops in May 1988 which was objected by Shri Narain Singh and dispute between parties resulted in FIR under Section 325/356/34 IPC registered against Major Mohan Singh and his four labourers and one civil suit pending in the court of Ld. Sub Judge, Tis Hazari Courts, Delhi. ACP concerned vide endorsement dated 30.07.1988 recommended for sealing the property under Section 145 Cr.P.C. and SDM, Patiala House, New Delhi on the basis of recommendation passed order dated 16.12.1988 directing attachment and sealing of disputed plot under Section 146 Cr.P.C. Order of SDM directing sealing of property was assailed by Shri Narain Singh and set aside by Shri N.K. Gupta, Additional Sessions Judge vide order dated 15.10.1998 passed in Cri. Revision No.55/97 and possession of the plot was restored to Shri Narain Singh in compliance of order of SDM directing SHO, PS Dabri to restore physical possession of property which was PAGE NO.4/22 D.O.D.18.06.2020 Major Mohan Singh vs. Shri Narain Singh (since deceased) through Lrs RCA DJ ADJ No. 100/2017 recorded vide DD No.28A dated 04.03.1999. Shri Narain Singh being restored in the property pursuant to order dated 15.10.1998 of Shri N.K. Gupta withdrew the earlier suit for injunction on 28.08.2000 and plaintiff's suit for possession, mesne profits, declaration and injunction was filed against this backdrop on 31.08.2000.
3. It is averred by plaintiff that plot measuring 375 sq. yds. was purchased by Shri Shiv Ram, Shri Surat Ram and Shri Purshottam Ram Verma from original/recorded owner Smt. Hukam Devi vide sale deed dated 26.04.1971 which was registered in the office of SubRegistrar, New Delhi on 29.04.1971. The plot was thereafter sold and transferred by aforesaid vendees in favour of Smt. Amarjit Kaur, wife of Shri Inder Singh Munjal vide General Power of Attorney, Agreement to Sell, etc. dated 04.02.1978 and property being mutated in her name in municipal records was assessed in the name of Smt. Amarjit Kaur for property tax. Suit property was subsequently transferred in the joint name of plaintiff and Shri Kapoor Chand vide General Power of Attorney, Sale Agreement and Affidavit dated 20.05.1988 executed by Smt. Amarjit Kaur after receiving total sale consideration of Rs.25,000/ and vacant possession of the plot along with symbolic possession of four shops occupied by tenants was delivered to plaintiff at the time of execution of documents. The tenants were informed about transfer of suit property in favour of plaintiff and started paying monthly rent of shops to the plaintiff against receipt whereas Shri Kapoor Chand S/o Shri Suraj Bhan subsequently executed Sale Agreement of half share of the property in favour of plaintiff who thereafter became exclusive owner of suit property.
4. Plaintiff has referred to affidavits dated 31.05.1988 executed by tenants namely Shri Rajender Kumar, Shri Rameshwar, Shri Shyam Chand and Shri Kapoor Chand attorning him as their landlord and undertaking to pay monthly rent of shops to the plaintiff w.e.f. 01.06.1988. It is averred that defendant Shri Narayan Singh having PAGE NO.5/22 D.O.D.18.06.2020 Major Mohan Singh vs. Shri Narain Singh (since deceased) through Lrs RCA DJ ADJ No. 100/2017 failed in his evil design to grab the property had filed suit for injunction bearing CS No.239/88 claiming possession of the plot and application for interim relief filed in the earlier suit was disposed of by Shri J.P.S. Malik, the then Ld. Sub Judge, Tis Hazari Courts, Delhi on 15.07.1988 by directing parties to maintain status quo.
5. Defendant, however, under the garb of status quo order tried to take forcible possession of suit property which led to proceedings under Section 145 Cr.P.C. and Smt. Dheera Khandelwal (IAS), SDM, Patiala House, New Delhi passed order dated 16.12.1988 directing attachment and sealing of suit property in order to maintain peace and in view of pendency of Civil Suit No. 239 of 1988.
6. Order of SDM directing attachment and sealing of property was assailed by Shri Narain Singh and Criminal Revision No.55/97 impugning order passed under Section 146(1) Cr.P.C. was allowed by Shri N.K. Gupta, Ld. Addl. Sessions Judge, Delhi by setting aside order of SDM and all consequential actions taken in pursuance of impugned order.
7. Plaintiff has stated about 'Cancellation Report' filed in criminal case bearing FIR No.78/88 which came up in the Court of Mrs. R. Kiran Nath, the then Ld. M.M. who observed that complainant Shri Narain Singh had lodged false FIR about theft of electric meter with ulterior motive to claim possession of property and relied upon following documents for contending that there is no dispute over identity of property involved in the present suit and the earlier suit filed by defendant which was dismissed as withdrawn on 28.08.2000:
(i) application for amendment of plaint filed by Shri Narain Singh in the earlier suit for mentioning correct particulars of disputed plot as Khasra No. 27/15, Village Dabri, New Delhi;
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(ii) letter dated 26.10.1988 addressed to SubRegistrar, Delhi for rectification and correction of typographical mistake in various documents commencing from sale deed dated 26.04.1971 executed by Smt. Hikam Devi;
(iii) letter of SubRegistrar, Kashmiri Gate, Delhi addressed to Tehsildar, Mehrauli, New Delhi to ascertain the correct position of rectangle No. 27 of Killa No. 10 and rectangle No. 27 of Killa No. 15 and
(iv) report of Halqa Patwari and Tehsildar clarifying from Revenue Record that land mentioned in sale deed executed by Shri Ram Kishan in favour of Smt. Hukam Devi registered as Document No. 12601 in Addl. Book No. I, Volume No. 859 on page 177 to 178 dated 09.10.1961 falls in Khasra No. 27/15.
8. Defendant having no right, title and interest in the property is stated to be in unlawful and unauthorized possession of suit property comprising four shops and vacant plot w.e.f. March 1999 after evicting the tenants who were occupying the shops and paying rent to plaintiff in terms of their undertaking dated 31.05.1988 and plaintiff left with no efficacious remedy has therefore filed suit praying for:
(a) decree declaring suit property bearing municipal No. RZ84F/1 as part of Khasra No. 27/15, Village Dabri, New Delhi;
(b) decree of possession of suit property by dispossessing defendant, his agents and associates from property bearing No. RZ84F/1 forming part of Khasra No. 27/15, Village Dabri, New Delhi;
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(c) mesne profits/damage by directing defendant to pay damages @ Rs.5,000/ per month or at any other rate w.e.f. 01.04.1999 till delivery of physical possession of suit property to plaintiff and
(d) restraining defendant, his agents and associates from transferring, alienating, creating any encumbrance, third party interest or partying with possession of suit property to any third person in any manner.
9. Plaintiff's suit has been contested by defendant Shri Narain Singh by raising following preliminary objections in his written statement:
i. Plaintiff is not the owner of plot measuring 375 sq. yds. and superstructure comprising four shops forming part of rectangle No.27, Killa No.15 Village Dabri, New Delhi in the absence of title deed/sale deed in his favour and alleged Agreement to Sell relied upon by plaintiff does not create any interest or charge in his favour;
ii. Alleged Agreement to Sell, Afidavit and Receipt are in respect of property bearing Khasra No.27, Killa No.10 which is different from property mentioned in the prayer clause and plaintiff's suit is liable to be dismissed with heavy costs and special compensatory costs under Section 35A of CPC as defendant being owner is occupying the plot since 1972 which is assessed to house tax in his name whereas Shri Chotu S/o Shri Mulkha was bhumidhar of land measuring 2 bighas 19 biswas comprised in Khasra No. 27/10 which was acquired by the Government vide Award No. 2064/67; iii. Plaintiff is not entitled to protection under Section 53A of the Transfer of Property Act which is available by way of defence only and does not create or confer any title on the transferee;
iv. Plaintiff's suit is beyond the pecuniary jurisdiction of the court and
PAGE NO.8/22 D.O.D.18.06.2020
Major Mohan Singh vs. Shri Narain Singh (since deceased) through Lrs RCA DJ ADJ No. 100/2017 v. Plaintiff's suit is bad for nonjoinder of necessary party as Smt. Amarjit Kaur has not been arrayed as defendant.
10. Defendant has asseverated himself as owner by claiming continuous possession of the plot since 1972 and plaintiff's averments have been denied in corresponding paras of reply on merit.
11. Eleven issues were framed on 04.04.2001 after replication and completion of pleadings and following issues were eventually settled by the Court by deleting issue No. 9 and reframing issues No. 1, 4 & 6 vide order dated 25.01.2002 passed upon defendant's application under Order XIV Rule 5 CPC:
1) Whether the suit in the present form is maintainable? ... OPD
2) Whether the suit is barred under the provisions of Delhi Land Reforms Act? ... OPD
3) Whether this Court has no jurisdiction as regards the relief of declaration sought by the plaintiff? ... OPD
4) Does the suit property over which the defendant is in possession falls in Khasra No. 27/15 VIII, Dabri, New Delhi? ... OPD
5) Whether the suit of the plaintiff is barred by limitation? ... OPD
6) Does the provisions of Section 53A of Transfer of Property Act confer any locus standi on the plaintiff to seek eviction of the defendant from the suit property? ... OPP
7) Whether this Court has pecuniary jurisdiction to entertain and try the present suit? ... OPP
8) Whether the suit is bad of nonjoinder of necessary parties? ...
OPD PAGE NO.9/22 D.O.D.18.06.2020 Major Mohan Singh vs. Shri Narain Singh (since deceased) through Lrs RCA DJ ADJ No. 100/2017
9) Whether the plaintiff is entitled to the relief claimed in the plaint? ... OPP
10)Relief.
12. Plaintiff during trial examined five witnesses including himself in support of his case and tendered his affidavit Ex.PW1/A in evidence by relying upon following documents:
i. Site Plan Ex. PW1/1;
ii. Certified copy of sale deed executed by Smt. Hukam Devi Ex. PW1/2;
iii. Certified copy of GPA dated 04.02.1978 Ex. PW1/3;
iv. Certified copy of receipt of house tax Ex. PW1/4;
v. Certified copy of GPA dated 20.05.1988 Ex. PW1/5;
vi. Certified copy of sale agreement dated 20.05.1988 Ex. PW1/6;
vii. Certified copy of affidavit of Smt. Amarjeet Kaur Ex. PW1/7;
viii. Certified copy of affidavits signed by the tenant namely Shri Rajender
Kumar, Shri Rameshwar, Shri Shyam Chand and Shri Kapoor Chand Ex. PW1/8, to Ex. PW1/11 respectively;
ix. Certified copy of letter written by the previous owner to aforesaid tenants Ex. PW1/12 to Ex. PW1/15;
x. Certified copy of rent receipts Ex. PW1/16 to Ex. PW1/19; xi. Certified copy of status quo order dated 15.07.1988 Ex. PW1/20; xii. Copy of letter of SDM, New Delhi addressed to SHO, PS Dabri for explaining incomplete compliance of order dated 16.12.1988 Ex. PW1/21;
PAGE NO.10/22 D.O.D.18.06.2020 Major Mohan Singh vs. Shri Narain Singh (since deceased) through Lrs RCA DJ ADJ No. 100/2017 xiii. Copy of order dated 18.02.1989 accepting Cancellation Report in FIR No. 78/88 Ex. PW1/22;
xiv. Certified copy of plaint dated 25.05.1988 titled "Narain Singh vs. Mohan Singh & Anr." Ex. PW1/23;
xv. Certified copy of amended plaint Ex. PW1/24;
xvi. Copy of letter No. SRII/88/322 dated 26.10.1988 Ex. PW1/25;
xvii. Another copy of letter dated 26.10.1988 of SubRegsitrar II, Kashmere Gate,
Delhi Ex. PW1/26;
xviii. Copy of report of Halqa Patwari and Tehsildar Ex. PW1/27; xix. Certified copy of statement/testimony of Shri Kali Ram Sharma, Shri Ram Kumar and Shri Narain Singh recorded in the previous suit Ex. PW1/28 to Ex. PW1/30;
xx. Copy of application under Order XXIII Rule 1 CPC for withdrawal of the earlier suit Ex. PW1/31;
xxi. Certified copy of order dated 28.08.2000 dismissing suit No. 239/1988 (107/2000) as withdrawn Ex. PW1/32;
xxii. Copy of Assessment Order dated 29.03.1988 under Section 126 DMC Act Ex. PW1/33;
xxiii. Copy of Demand notice dated 19.08.1988 Ex. PW1/34; xxiv. Copy of house tax receipt paid by Smt. Amarjeet Kaur Ex. PW1/35; xxv. Copy of Demand notice of house tax bill for the year 198990 Ex. PW1/36; xxvi. Copy of complaint dated 14.11.1988 to Local Police Station Ex. PW1/37;
xxvii. Copy of report of Local Commissioner Ex. PW1/37 and PAGE NO.11/22 D.O.D.18.06.2020
Major Mohan Singh vs. Shri Narain Singh (since deceased) through Lrs RCA DJ ADJ No. 100/2017 xxviii. Ten photographs Ex. PW1/38 (colly).
13. Official witnesses examined by plaintiff include:
(i) Shri R. N. Aggarwal, J.E. (Bldg.), MCD, Najafgarh Zone, Delhi examined as PW2 who has produced official record of property No. RZF1/84, Dabri Extension, Palam, New Delhi and referred to (a) copy of complaint received from SHO, Dabri on
14.02.2003 as Ex.PW2/1; (b) copy of another complaint from SHO PS Dabri regarding unauthorized construction in property No. RZF1/84, Dabri Extension, Palam, New Delhi as Ex.PW2/2; (c) photocopy of photographs as Ex.PW2/3 (colly);
(d) copy of letter dated 20.02.2003 addressed to SHO PS Dabri with copy of Dy. Commissioner, MCD as Ex.PW2/4 and (e) copy of notice under Section 343/344 DMC Act issued to the builder as Ex.PW2/5;
(ii) Shri B.K. Sharma, AZE, MCD, Najafgarh Road, New Delhi examined as PW3 who has produced official record of property No. RZ84/F1, Dabri Extension, New Delhi and referred to copy of notice bearing serial No. 46315 sent on 29.03.1988 as Ex.PW3/1;
(iii) Shri Rakesh Kumar, UDC, office of SubRegistrarIX, Kapashera, Delhi examined as PW4 who has brought office record of Rectification Deed registered as Document No. 1669, Book I, Vol. 461 at pages 30 to 32;
(iv) Advocate Shri Dalip Mishra, Local Commissioner examined as PW5 who has referred to (a) copy of notice given to defendant as Ex.PW5/1; (b) original proceedings at the site as Ex.PW5/2; (c) statements of persons recorded during local inspection as Ex.PW5/3; (d) rough siteplan of suit property as Ex.PW5/4 and (e) negatives of photographs as Ex.PW5/5 and PAGE NO.12/22 D.O.D.18.06.2020 Major Mohan Singh vs. Shri Narain Singh (since deceased) through Lrs RCA DJ ADJ No. 100/2017
(v) Shri Vinod Rai, Office Kanungo, Tehsil Najafgarh, Delhi examined as PW6 who has deposed that no record of letter No. SRII.88/322 dated 26.10.1988 sent by Shri Shyam Chand, SubRegistrar II, Kashmiri Gate, Delhi on the subject of clarification of ownership of land and sale deed No. 12601 dated 09.10.1961 in Khasra No. 27/15, Village Dabri, Delhi and report of Patwari and Tehsildar, Mehrauli in response to the said letter of SubRegistrar II is available in the office.
14. Plaintiff's evidence was closed on 19.03.2012 as order dated 09.08.2005 and 22.07.2006 passed upon plaintiff's application under Order XVI Rule 1 CPC were affirmed by Hon'ble High Court of Delhi vide order dated 09.01.2007 passed in CM(M) No. 33/2007 and matter was thereafter posted for defendant's evidence.
15. Shri Narain Singh having expired on 19.01.2007, his legal heirs were impleaded in his place vide order dated 22.09.2008 and Smt. Attar Kaur (widow); Shri Shamsher Singh (son) and Shri Nitin Sharma, LDC, Record Room (Civil), Tis Hazari Courts who produced Goshwara Register of August 2000 bearing entry of Suit No.107/2000 titled "Narain Singh Vs. Mohan Singh" decided on 28.08.2000 against Goshwara No. 671/ND were examined as DW1 and DW2.
16. Final arguments were heard and plaintiff's suit was dismissed by Ld. Trial Court on the basis of its findings upon Issue No. 1, 3, 6 & 9.
17. Aggrieved by dismissal of suit, plaintiff Major Mohan Singh has filed appeal for setting aside impugned judgment and decree dated 24.04.2017 inter alia on following grounds:
17.1 Suit has been wrongly dismissed without appreciating plaintiff's evidence and findings of Ld. Trial Court are against well settled principle of law. 17.2 Finding of Ld. Trial Court upon Issue No.1 by observing that plaintiff has not sought declaration of title is unsustainable in law as Ld. Trial Court has failed to PAGE NO.13/22 D.O.D.18.06.2020 Major Mohan Singh vs. Shri Narain Singh (since deceased) through Lrs RCA DJ ADJ No. 100/2017 appreciate that plaintiff being owner on the basis of title documents in his favour is not required to seek declaration of ownership.
17.3 Judgment of Hon'ble Supreme Court of India titled Annathula Sudhakar Vs. P. Buchi Reddy (dead) by LRs & Ors. has not been interpreted correctly as Hon'ble Apex Court in para 11.2 of the judgment has clearly stated that when title is not in dispute the remedy is to file a suit for possession and injunction. Finding upon issue No.1 is therefore unsustainable in law as Ld. Trial Court has failed to appreciate that defendant/respondents (LRs) have not produced any title document in their favour. 17.4 Ld. Trial Court has failed to exercise its judicial discretion for deciding Issue No.3 in favour of plaintiff notwithstanding its observation that there is no dispute about the identity of suit property being part of Khasra No. 27/15. 17.5 Finding of Ld. Trial Court upon Issue No.6 is vague because provisions of Section 53A of Transfer of Property Act is not attracted in the present dispute. 17.6 Issue No.9 declining reliefs sought by plaintiff has been wrongly decided on the basis of finding upon Issue No.1 notwithstanding the fact that plaintiff's suit has been filed in compliance of all legal requirements as per Order VII Rule 1 CPC. 17.7 Finding of Ld. Trial Court are palpably wrong, perverse and contrary to well established law of the land as no issue challenging title of the plaintiff was framed in the suit.
18. Appeal assailing judgment of Ld. Trial Court filed along with application under Order XXXIX Rules 1 & 2 read with Order XLI Rule 5 CPC for restraining respondents from creating any third party interest in the property till disposal of appeal and application under Section 5 of Limitation Act read with Order XLI Rule 3(A) and Section 151 CPC for condoning delay was filed on 13.07.2017 which was assigned of Ld. ADJ04, SouthWest, Dwarka, Delhi.
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19. Another application under Order XXXIX Rules 1 & 2 CPC was thereafter filed by appellant on 13.08.2019 for restoring suit property to its original form and restraining respondents, etc. from raising any construction in the suit property followed by application under Order XLI Rule 27(1) (aa) CPC filed on 21.08.2019 for permission to lead additional evidence by filing 'Rectification Deed' executed by Smt. Hukam Devi.
20. Appeal was thereafter withdrawn from the court of Ms. Mamta Tayal, Ld. ADJ 04, Dwarka Courts, Delhi and assigned to this Court vide order dated 03.09.2019 passed by Ld. District & Sessions Judge, SouthWest District, Dwarka Courts, Delhi in TA No.79/19 and written arguments on behalf of appellant was filed on 17.09.2019 along with photographs.
21. Advocate Shri Gaurav Singh for appellant and Advocate Ms. Komal Chhiber for LRs of Late Narain Singh have addressed their submissions and second application under Order XXXIX Rules 1 & 2 CPC for restoring suit property to its original form and restraining respondents, etc. from raising any construction in the suit property was dismissed in the absence of any ground for interim relief in favour of plaintiff.
22. I have perused pleadings, issues, testimony of witnesses examined before Ld. Trial Court and carefully gone through written submissions filed by Ld. Counsels in support of their respective contentions.
23. Plaintiff's case claiming that property No. RZ84F/1 is the subject matter of GPA, Sale Agreement and Affidavit dated 20.05.1988 which is described as land measuring 375 sq. yds. with four shops constructed on it out of Rectangle No.27, Kila No.10 situated in the area and abadi of Village Dabri, New Delhi is based on following two premises:
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(i) Khasra No.27/10 has been wrongly mentioned instead of Khasra No.27/15 in the chain of title documents viz. (a) sale deed dated 26.04.1971 executed by Smt. Hukam Devi in favour of Shri Shiv Ram, Shri Surat Ram and Shri Purshotam Ram Verma; (b) GPA, Agreement to Sell and Deed of Will dated 04.02.1978 executed by aforesaid vendees in favour of Smt. Amarjit Kaur; (c) GPA, Sale Agreement and Affidavit dated 20.05.1988 executed by Smt. Amarjit Kaur in the joint name of plaintiff and Shri Kapoor Chand and (d) Sale Agreement dated 20.06.1988 of half share of property executed by Shri Kapoor Chand in his favour.
(ii) There is no dispute between parties w.r.t. identity of suit property as amended plaint mentioning correct Khasra No.27/15 instead of Khasra No.27/10 was filed by Shri Narain Singh in Civil Suit No.239/1988 (107/2000) after proper verification from concerned authorities.
24. It is urged by Ld. counsel for appellant that application for amendment was allowed in the earlier suit as figure "5" written in Urdu was wrongly understood as "0" and plaintiff upon knowledge of typographical mistake in the chain of documents starting from sale deed dated 26.04.1971 executed by Smt. Hukam Devi wrote application dated 26.10.1988 to SubRegistrar, Delhi for rectification and correction of documents. SubRegistrar II, Kashmiri Gate, Delhi thereafter vide letter even dated wrote to Tehsildar, Mehrauli, New Delhi to ascertain the correct position of Rectangle No.27 of Killa No.10 and Rectangle No.27 of Killa No.15 and Halqa Patwari and Tehsildar, Mehrauli in their report pursuant to letter of SubRegistrar clarified that land mentioned in sale deed registered as Document No.12601 in Addl. Book No. I, Vol. No. 859 on page 177 to 178 dated 09.10.1967 executed by Shri Ram Kishan in favour of Smt. Hukam Devi falls in Khasra No.27/15 of Village Dabri, Delhi.
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25. Respondent's counsel, per contra, has disputed cause of action in favour of plaintiff by insisting that alleged Agreement to Sell, Affidavit and Receipt relate to property bearing Khasra No.27, Killa No.10 which was acquired by the Government vide Award No. 2064/67 and plaintiff's suit in the absence of any sale deed or title deed of property/plot forming part of land Rectangle No.27, Killa No.15, Village Dabri, Delhi is liable to be dismissed with heavy costs and special compensatory costs under Section 35A CPC.
26. It is apt to note that copy of letter No. SRII/88/322 dated 26.10.88 of Sub Registrar II, Kashmiri Gate, Delhi for clarification of ownership of agricultural land of village Dabri and Report of Halqa Patwari and Tehsilar, Mehrauli referred as Ex.PW 1/25, Ex.PW1/26 and Ex.PW1/27 in para 13 of affidavit Ex.PW1/A of plaintiff could not be proved as Shri Vimal Rai, Office Kanungo, Tehsil, Najafgarh, New Delhi examined as PW6 to produce official record of aforesaid letter of Shri Shyam Chand, SubRegistrar II, Kashmiri Gate, Delhi and Report of Patwari and Tehsildar, Mehrauli has deposed that no such document/record is available in the office.
27. Though plaintiff has examined Shri Rakesh Kumar, UDC, Office of Sub Registrar IX, Kapashera, Delhi as PW4 who has produced office copy of Rectification Deed registered as Document No.1669, Book 1, Vol. 461 at pages 30 to 32 on 23.05.2001 and certified copy of Rectification Deed executed by Smt. Hukam Devi has been filed along with application under Order XLI Rule 27 CPC but such Rectification Deed by itself is not sufficient to record any finding to the effect that Khasra No.27/15 has been wrongly mentioned as Khasra No.27/10 in sale deed dated 04.10.1967 executed by Shri Ram Kishan in favour of Smt. Hukam Devi and subsequent chain of title documents without summoning official record of owner/holder of land bearing Khasra No.27/15 from Revenue Department.
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28. It is strange that plaintiff has neither summoned official record from Revenue Department showing Shri Ram Kishan as owner/holder of land bearing Khasra No.27/15 which was sold to Smt. Hukam Devi vide sale deed registered on 09.10.1967 nor title deed/conveyance deed of adjoining plot of plaintiff has been filed and proved by plaintiff who during his crossexamination has deposed that he being owner of adjoining plot measuring 200 sq. yds. bearing municipal No. RZ84, Khasra No.27/15 purchased from Smt. Hukam Devi has sold the land.
29. Chain of title documents starting from sale deed dated 04.10.1967 has been executed in respect of land bearing Rectangle No.27, Killa No.10 whereas disputed plot measuring 375 sq. yds. out of Rectangle No.27, Killa No. 10, Village Dabri, New Delhi is stated to be bounded by house of Major Mohan Singh on the North in the GPA and Sale Agreement dated 20.05.1988 referred as Ex.PW1/5 and Ex.PW1/6.
30. I am, therefore, unable to accept the submissions of Ld. Counsel for appellant that Issue No.3 w.r.t. relief declaring property No.RZ84F/1 as part of Khasra No.27/15, Village Dabri, New Delhi should be decided in plaintiff's favour in the absence of dispute between parties regarding identity of the property as alleged letter of SubRegistrarII, Kashmere Gate, Delhi and Report of Halqa Patwari and Tehsildar, Mehrauli could not be proved during trial and plaintiff having relied upon chain of title documents of plot forming part of Khasra No.27/10, Village Dabri, Delhi has failed to summon official record of Khatoni (Form PIV) from Revenue Department to prove that Shri Ram Kishan being owner/holder of agricultural land had sold one bigha kham of land = 1008 sq. yds. forming part of Rectangle No.27, Killa No.15 which was wrongly mentioned as Rectangle No.27, Killa No.10 (27/10), Village Dabri, Delhi in the sale deed dated 04.10.1967.
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31. Moving on to next contention regarding ownership of disputed plot, plaintiff has relied upon following set of documents for claiming himself as owner of land measuring 375 sq. yds. along with superstructure comprising four shops forming part of land Rectangle No.27, Killa No.15, Village Dabri, New Delhi:
(a) Chain of title documents viz. (i) sale deed dated 26.04.1971 executed by Smt. Hukam Devi referred as Ex.PW1/2; (ii) GPA, Agreement to Sell and Deed of WILL dated 04.02.1978 executed by Shri Shiv Ram, Shri Surat Ram and Shri Purshottam Ram Verma in favour of Smt. Amarjit Kaur referred as Ex.PW1/3; (iii) GPA, Sale Agreement and Affidavit dated 20.05.1988 executed by Smt. Amarjit Kaur in the joint name of plaintiff and Shri Kapoor Chand referred as Ex.PW1/5, Ex.PW1/6 and Ex.PW1/7 and (iv) Sale Agreement dated 20.06.1988 of half share of property executed in his favour by Shri Kapoor Chand which was produced during crossexamination of plaintiff and referred as Ex.PW1/D1.
(b) Documents claiming symbolic possession of four shops viz. (i) affidavits of tenants namely Shri Rajinder Kumar, Shri Rameshwar, Shri Shyam Chand and Shri Kapoor Chand attorning plaintiff as their landlord referred as Ex.PW1/8 to Ex.PW1/11;
(ii) letter of Shri Inder Singh Munjal addressed to tenants informing sale of shops in Khasra No.27/10, Village Dabri, New Delhi referred as Ex.PW1/12 to Ex.PW 1/15 and (iii) copy of rent receipts of shops in Khasra No.27/10, Dabri, Delhi referred as Ex.PW1/16 to Ex.PW1/19.
(c) Assessment Order under Section 126 of DMC Act and House Tax Receipts of property No. RZ84F/1, Dabri Extension, Dabri, Main Road in the name of Smt. Amarjit Kaur referred as Ex.PW1/33 to Ex.PW1/36.
32. Ld. Trial Court being aware of various contradictions regarding possession, year of construction of superstructure, water and electricity connection in the property PAGE NO.19/22 D.O.D.18.06.2020 Major Mohan Singh vs. Shri Narain Singh (since deceased) through Lrs RCA DJ ADJ No. 100/2017 recorded during crossexamination of DW1 Smt. Attar Kaur and noted that defendant has not placed any document or material on record to prove ownership of property has nevertheless observed that a person in possession of immovable property has a right to protect his possession except against the true owner and plaintiff having approached the court has to prove his title in order to obtain the reliefs and cannot derive any benefit from the weakness in defence.
33. Next, Ld. Trial Court has also noted that Assessment Order of house tax of property No. RZ84F/1, Dabri Extension, Dabri, Main Road and House Tax Receipts were issued in the name of Smt. Amarjit Kaur but there is nothing on record to show that land measuring 375 sq. yds. forming part of Rectangle No.27, Killa No.10, Village Dabri, Delhi was given municipal No. RZ84F/1 by MCD at any point of time and plaintiff did not examine Smt. Amarjit Kaur to prove that she had actually sold property No. RZ84F/1, Dabri Extension, Village Dabri vide GPA, Sale Agreement & Affidavit dated 20.05.1988 and there was a mistake in description of property in the documents referred as Ex.PW1/5 to Ex.PW1/7.
34. The anomaly in description of property in Assessment Order dated 29.03.88 passed under Section 126 of DMC Act and GPA, Sale Agreement and Affidavit dated 20.05.1988 has been noted in para 79 of impugned judgment wherein Ld. Trial Court has observed that Assessment Order was passed before sale of property by Smt. Amarjit Kaur however municipal number of the property was not mentioned in the documents executed in favour of plaintiff and Shri Kapoor Chand and there was nothing on record that any property bearing municipal No. RZ84F/1, Village Dabri, New Delhi was sold to plaintiff at any point of time.
35. Plaintiff despite knowledge of apparent defect in the chain of title documents which were executed in respect of land measuring 375 sq. yds. out of Rectangle No.27, PAGE NO.20/22 D.O.D.18.06.2020 Major Mohan Singh vs. Shri Narain Singh (since deceased) through Lrs RCA DJ ADJ No. 100/2017 Killa No.10 situated in the area and abadi of Village Dabri, Delhi has failed to examine Smt. Amarjit Kaur or any official from Revenue Department to prove that property mentioned in those documents falls in Khasra No.27/15 and it is significant to note that no right, title or interest in the property has been created in favour of plaintiff and Shri Kapoor Chand by virtue of Sale Agreement dated 20.05.1988 which is in the nature of Contract for Sale as described in Section 54 of the Transfer of Property Act, 1882.
36. Relevant covenants of Sale Agreement dated 20.05.1988 executed by Smt. Amarjit Kaur in the joint name of Major Mohan Singh and Shri Kapoor Chand are extracted hereinbelow for reference:
"That in consideration of Rs. 25,000/ to be received in cash from the the 2nd party in the presence of S.R. Delhi by means of separate receipt and nothing remains due out of the sale price.
When the sale deeds are permissible then the 1 st party or their General Attorney shall sell and get the sale deed registered in favour of the 2nd part or nominee.
The possession of the abovementioned property has been given to the 2nd party who had occupied the same.
On default of the 1st party the 2nd party will be entitled to get it completed through court of law at the costs and expenses of the 1 st party."
PAGE NO.21/22 D.O.D.18.06.2020 Major Mohan Singh vs. Shri Narain Singh (since deceased) through Lrs RCA DJ ADJ No. 100/2017 All the expense of the registration will be paid and borne by the 2 nd party."
37. Plaintiff, therefore, cannot claim himself as owner of property No. RZ84F/1, Village Dabri, Delhi without conveyance of title of property by way of registered sale deed executed in his favour or by way of specific performance of sale agreement through court of law for conveying title of the property in his favour.
38. Judgment and decree dated 24.04.2017 of Ld. Trial Court dismissing plaintiff's suit on the basis of findings upon Issue No. 1, 3, 6 & 9 is therefore affirmed and appeal is dismissed. Parties to bear their own costs.
39. Decree sheet be prepared accordingly.
40. Trial Court Record by sent back along with copy of judgment.
41. Appeal file be consigned to Record Room after due compliance.
TARUN Digitally signed by
TARUN YOGESH
YOGESH Date: 2020.06.22
16:52:05 +05'30'
Announced in Video Conferencing (Tarun Yogesh)
held through Cisco Webex ADJ03/SouthWest
on 18.06.2020 Dwarka / New Delhi
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