Delhi District Court
Smt Shashi Jain Ors vs Raghubir Singh Ors on 4 October, 2025
IN THE COURT OF SH. MAYANK MITTAL, LD. ASCJ-CUM-JSCC-
CUM GUARDIAN JUDGE, SOUTH WEST DISTRICT, DWARKA,
NEW DELHI
Suit No. 425534/2016
CNR No. DLSW03-000103-2014
In the matter of :-
1. Smt Shashi Jain
W/o Sh Sushi Kumar Jain,
R/o H-17/81, Sec-7,
Rohini, New Delhi
2. Sh Sushi Kumar Jain
S/o Sh Shikhar Chand Jain
R/o H-17/81, Sec-7,
Rohini, New Delhi
........Plaintiffs
VERSUS
1. Sh. Raghubir Singh,
S/o Sh Baljeet Singh,
R/o M-256, Gali No.4,
Jeevan Park, Delhi
Also at:- Village Mohammad Pur,
Rai Singh, Teh. Budhana
Distt. Muzaffar Nagar, U.P.
2. The S.H.O
P.S Dabri,
New Delhi
.....Defendants
Date of institution : 15.03.2014
Reserved for Judgment : 17.09.2025
Date of decision : 04.10.2025
CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 1
Suit for Permanent and Mandatory Injunction
JUDGMENT
1. This is a suit for Permanent and Mandatory Injunction filed by plaintiff against defendants restraining the defendant no.1 his associates, agents, relatives, etc. from selling the property i.e. bearing Plot No. Plot No.41, Block M, measuring 168 sq. yds. out Khasra No. 99/24, Village Palam, New Delhi, presently known as Gali No. 11 and 12, Raja Puri, New Delhi and the defendant no. 1 be further restrained from selling, transferring, alienating, parting with the possession of the suit property in the interest of justice and defendant no. 1 is directing not to enter into the suit property in any manner whatsoever and create any hindrance or disturbance or nuisance in the peaceful possession/occupation of the plaintiff in the suit property in any manner whatsoever and the defendant no. 2 may be directed to secure the life and property of the plaintiffs.
2. Plaintiffs' Case
(i). The case of the plaintiffs as avered in the plaint is that the plaintiffs are the lawful owner and in possession of the property bearing Plot No.41, Block M, measuring 168 sq. yds. out Khasra No.99/24, Village Palam, New Delhi, presently known as Gali No.11 and 12, Raja Puri, New Delhi, which is clearly shown in red colour in the site plan annexed with the plaint.
(ii). That the suit property/plot was purchased by the plaintiffs from its erstwhile owner Shri Rakesh Kumar Sharma son of Shri Hem Raj Sharma, in the year 1989 on the basis of the title documents i.e. Agreement to Sell, G.P.A., Receipt and Affidavit all made and executed on dated 17.04.1989. The Agreement to Sell, Receipt are made and CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 2 executed in favour of the plaintiff No.1 and the G.P.A. is made and executed by its erstwhile owner in favour of the plaintiff No.2 (who is the husband of the plaintiff NO.1).
(iii). The said property was purchased by the plaintiffs from their own funds, savings and hard earned money. After purchasing the suit property, the plaintiffs constructed one room and the remaining portion of the suit property has been lying vacant and the boundary wall has been made and constructed on the said plot/suit property. The plaintiffs have been regularly visiting the suit property from time to time.
(iv). Since the date of purchase of the said property, the plaintiffs have been regularly visiting the suit property from time to time and since the date of its purchase there has been no let or hindrance from any corner.
(v). That in the first week of March, 2014 the plaintiffs came to know from their neighbourers that the defendant No. 1 alongwith the property dealers has been visiting the suit property and a talk was going on between them with regard to sale of the suit property.
(vi). That after knowing about the said fact, the plaintiffs visited the suit property and tried to know about the defendant No. 1. The plaintiffs also tried to make a contact with the area property dealers but it was transpired after meeting the property dealers that somewhere the property dealers are having connivance with the bhoomi mafias and they want to encroach upon the property of the plaintiffs, using the name of the defendant No. 1.
(vii). That thereafter on 03.03.2014 the plaintiffs made a call at 100 CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 3 number and an A.S.I. namely Ram Niwas Yadav, from P.S. Dabri, Delhi visited the suit property. Thereafter the plaintiff narrated all the story to the said A.S.I. and requested to take appropriate action against the defendant NO.1, but the said A.S.I. did not take any action against the said defendant No.1.
(viii). That thereafter the defendant No.2 made assurance to the plaintiffs that they are taking action against the defendant No.1 and will call him in the police station. However, on two - times the plaintiffs were called by the concerned police officials in the police station but the defendant No.1 did not bother to visit the said police station and neither the defendant No.2 took any action in that regard.
(ix). That on 10.03.2014 when the plaintiffs tried to raise construction on the suit property, the defendant NO.2 in connivance with the defendant NO.1 stopped the said construction work on the suit property and told to the plaintiffs to get the stay order in their favour and in against of the defendant NO.1 from selling the property in question or creating third party interest, from a competent court of law.
(x). That the defendant No.1 has absolutely no right, title or interest in respect of the suit property in any manner as the plaintiffs are the sole and absolute owner of the suit property. The threatened action of the defendants are illegal, unjustified, malafide one.
(xi). That there is every apprehension that the defendant No.1 in connivance of the defendant No.2 shall sell out the suit property on the basis of forged and fabricated documents and dispossess the plaintiffs from the suit property at any moment by use of force.
CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 43. Defendants' Case
(i) (i).Written statement has been filed on behalf of defendant no. 1/Sh. Raghubir Singh stating that in facts of the present suit, plaintiffs ought to have filed suit for declaration and not mere simplicitor injunction suit.
(ii). That in the present case, plaintiffs are trying to stake claim over property of answering defendant which bears No. M-40 in khasra No. 99/25, area measuring 170 sq. yards in the Revenue Estate of Village Palam, colony known as Raja Puri, New Delhi in garb of documents of property bearing No. M-41, in khasra No. 99/24, Village Palam, colony Raja Puri, New Delhi. This fact can be verified merely by directing demarcation of the plot in question, which will clarify the entire dispute between parties herein.
(iii). That answering defendant is filing copies of certain electricity bills of properties which situated just in line of the property of the answering defendant which clearly indicate that property bearing No. M-40(which plaintiffs illegally claim to be property No. M-41 in khasra No 99/24) falls in khasra No. 99/25 and not 99/24. Similarly, plaintiff is also filing documents of one Smt. Munni Devi, wife of Shri Suraj Singh, which is situated two plots after plot of the answering defendant. These documents nullify the claim of plaintiffs that property of answering defendant is their property.
(iv). Plaintiffs themselves were illegally trying to usurp property of the answering defendant detailed above and when requests of answering defendant failed, he got served a legal notice upon plaintiff No. 1. That suit is based on false and frivolous allegations. Moreover, documents filed by plaintiffs even do not support their case.
CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 5(v). That answering defendant has no concern with alleged property of plaintiffs and he has no intention to sell their property bearing No. M-41. in khasra No. 99/24, Palam Village, Raja Pun, New Delhi.
(vi). It is submitted that GPA does not make plaintiff No 2 as owner and absence of complete set of documents in favor of plaintiff No. 1 also disentitles her of the ownership rights in favor of alleged plot No. M-41. Be as it may be, plaintiffs are projecting plot of answering defendant as their own plot. Most of the documents are without witness and are incomplete, invalid and not enforceable at law. Rest of the allegations are false and frivolous, hence denied and contents of preceding paras may kindly be read as part of this para also as the same are not being repeated herein for the sake of brevity.
(vii). Plaintiffs are trying to project plot of answering defendant as their own plot for malafide reasons. It seems that plot of plaintiffs is at some other place and on basis of documents filed in the present case, they are trying to usurp plot of answering defendant also. Rest of the allegations are false and frivolous, hence denied and contents of preceding paras may kindly be read as part of this para also as the same are not being repeated herein for the sake of brevity.
(viii). Since answering defendant has no concern with plaintiffs' plot, he had no occasion to visit or sell the same. However, plaintiffs are trying to project plot of answering defendant as their own plot and are illegally staking their claim over the same. Allegations in para under reply are vague and lack material particulars.
CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 6(ix). That since answering defendant had done no wrong to alleged plot of plaintiffs bearing No. M-41 in khasra No. 99/24, hence there was no occasion for police to take any action against answering defendant.
(x). Plaintiffs were trying to raise illegal construction over property of answering defendant bearing No. M-41, in khasra No. 99/25 and for that reason only, answering defendant was constrained to interfere in the same.
(xi). Answering defendant has every right to deal with his own property bearing No. M-40 in khasra No. 99/25. Apprehension of plaintiffs is mis-founded and without any basis. In fact, it is answering defendant who is now apprehending that plaintiffs will sell his property bearing No. M-40, Khasra No. 99/25, area measuring 170 square yards in the Revenue Estate of Village Palam, colony known as Raja Puri, New Delhi on the basis of documents in possession of plaintiffs by misrepresenting and projecting the said property as their own property bearing No. M-41, in khasra No. 99/24.
4. Replication has been filed by the plaintiff to the written statement of the defendant no. 1 wherein the contents of the plaint have been reiterated and the contentions of the defendant in his written statement have been denied except the admissions made.
5. Issues After completion of pleadings, vide order dated 08.09.2014, the following issues were framed by my learned Predecessor for trial :
(i) Whether the plaintiff is entitled for permanent injunction CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 7 restraining the defendants from selling the property in question and from dispossessing the plaintiff from the suit property, as shown in RED colour in the site plan, as prayed? OPP
(ii) Whether the plaintiff is entitled to mandatory injunction as prayed? OPP
(iii) Whether there is no cause of action in favour of plaintiff and against the defendants? OPD
(iv) Whether the suit is barred, as contended in the preliminary objections to the W.S? OPD
(v) Relief
6. Plaintiff's Evidence
(i) Smt Shashi Jain was examined as PW-1, who tendered her affidavit in evidence Ex. PW1/A has stated in her affidavit of examination in chief and bears her signature at Point 'A' and Point 'B'. She has relied upon the documents the following documents:
1. Ex.PW1/1: Site Plan.
2. Ex.PW1/2: Photographs.
3. Ex.PW1/3: Election identity Card.
4. Ex.PW1/4: Payment receipts.
5. Ex.PW1/5: Deed of Agreement.
6. Ex.PW1/6: Complete chain of documents.
7. Ex.PW1/7: Khata Khatouni(photocopy).
8. Mark X: Complaint dated 10.03.2014 alongwith postal receipts.
During her cross examination she deposed that she was an M.A. in Hindi from Delhi University, that her husband worked in the share market as an accountant and she assisted him in his accountancy work; and that she had never calculated her own income. She stated that, CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 8 apart from helping her husband, she occasionally gave tuition classes but maintained no records of the amounts earned. She further testified that she had been married for 35 years.
When she asked how much income she had earned to date and what were her savings then she replied that she did not know the exact figures of her earnings or savings, that, whenever she saved money, she invested it in property and that the exact amounts would be known only to the Income-Tax Authority. She deposed that She used to give tuition classes but never calculated her income and could not state even today how much she has earned to date. The suit property in this case is Plot M-41 in Khasra No. 99/24, of which she is the absolute owner, having purchased it in April 1989. It was wrong to suggest that the property in dispute is comprised in Khasra No. 99/25.
When asked whether she had raised any construction over the suit property, she stated that she had constructed a room and a boundary wall thereon.
It was wrong to suggest that the alleged suit property bears No. M-40 in Khasra No. 99/25. She had been read the contents of Exhibit PW-1/4 (payment receipt) and admit them to be correct, but it is observed that Exhibit PW-1/4 makes no mention of any transaction (sale and purchase) regarding the property.
She stated that a sale deed in her favour pertaining to the suit property was executed and placed on record in this case, but, after examining the file, she was unable to show any sale deed or any other receipt evidencing payment of sale consideration apart from Exhibit PW-1/4. That she confirmed that receipts of the kind of Exhibit PW-1/4 were registered in the year 1989.
It was wrong to suggest that the site plan (Exhibit PW-1/1) is incorrect. It is correct that one Mahender Singh S/o Mange Ram and CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 9 Kedar Yadav S/o Manager Yadav reside around alleged suit property but did not know whether Mahender Singh resides in Plot No. M-38 or Kedar Yadav in Plot No. M-44 (1st floor). She was unaware whether Bhim Singh S/o Jai Ram, Ram Singh S/o Mange Ram, Neelam W/o Narender Kumar, Anand Ram Sharma S/o Harak Ram, Anjali Devi Bisht W/o Govind Singh Bisht or Smt. Munni Devi W/o Suraj Singh reside around the alleged suit property.
She testified that she paid the entire sale consideration of ₹ 40,000/- for the purchase of the alleged suit property. She files income- tax returns for every year and might have also placed them on record, however, no ITR could be traced in the case file. She offered to bring the available ITR copy. She could not say whether Photograph Ex. PW-1/D1 pertains to the suit property, but confirmed that Photograph Ex. PW-1/D2 did so. She has testified that she was the owner of the suit property as on date. That she does not know its street number. That the property is identified as Plot M-41 in Khasra No. 99/24.
That the documents of ownership relied upon by her--Ex. PW-1/5, Ex. PW-1/6, Ex. PW-2/2 and Ex. PW-2/3--contain no street number, as no number was allocated at that time. That her husband had gone for their execution of title documents i.e. Ex. PW-1/5, EX. PW-1/6, Ex. PW-2/2 and Ex. PW-2/3, but she did not remember.
That she has not placed the negatives or any billing records for Photograph Ex. PW-1/2 on the record. That some of the title documents are in her name and some in her husband's; she does not know why they were executed in two different names. That she cannot say how much she has earned or saved to date. That she can disclose her earnings only after reviewing her records, including Income-Tax Returns, but has no written record or ITR prior to April 1989. That she paid the sale consideration of the suit property by way of cheques. In neighbourhood CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 10 of the suit property her known person are residing and they had talking terms with them.
She replied in negative that there is a plot/house of her real sister adjacent to the suit property. That she stated that Sh. Anil Jain of Plot M-40 informed her regarding visits by Defendant No. 1 and an alleged attempt to grab the suit property on 03.03.2014. That she said that date might appear in her plaint, but did not remember; it is, however, mentioned in para 6 of her affidavit (Ex. PW-1/A). She admitted that she did not specifically allege in her plaint that dealers accompanied Defendant No. 1.
She was confronted with para 6 of her plaint (points A-B) and para no. 5 of Ex. PW-1/A, both of which stated that dealers accompanied Defendant No. 1, and affirmed that the statements in her plaint and affidavit are correct. When she asked whether Sh. Anil Jain named Defendant No. 1 specifically or not, she replied that Mr. Anil Jain talked to her husband in this respect, but she did not know whether he had named Defendant No. 1 by name.
PW-1 admitted that Exhibit PW-1/4 (payment receipt) does not record the purpose of the ₹ 40,000 payment. She did not know the identity of the witness named on that receipt (Shyam Lal Bhatia), but said it was prepared at Kashmere Gate in her presence. She could not say who signed the said receipt Exhibit PW-1/4 . That at the time of its execution, she, her husband and her father-in-law were present. That she thought Sh. Rakesh Sharma was also present and identified him as the vendor, but could not recall whether any other person was there. She did not know if Sh. Rakesh Sharma is still alive. She testified that after purchase, the existing structure on the suit property was demolished and one room was constructed around year 1992, however, she could not tell the exact year or produce any bills for that work. That she confirmed that CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 11 no further construction was carried out thereafter.
That she stated that she could not say where Exhibits PW-2/2, PW-2/3 and PW-1/5 had been executed. When asked whether she was aware who had signed those documents and when and where they were signed, she replied that with respect to Exhibits PW-2/2, PW-2/3 and PW-1/5, PW-1 stated that they must have been signed on 17.04.1989, and that they could have been signed at Kashmere Gate, although she was not sure.
She affirmed that all the documents i.e. (Ex. PW-2/2, PW-2/3 and PW-1/5) were signed in her presence. That she noted that her father- in-law is not alive and conceded that she never inquired into the roles of Sh. Shyam Lal Bhatia (Notary Public) or Sh. H.N. Sharma (Advocate) as the attesting witnesses named on those documents and on Ex. PW-1/4.
That she had filed a police complaint against Defendant No. 1 at PS Dabri on or about 03.03.2014. That, she acknowledged that the complaint could have been dated any day between 03.03.2014 and 07.03.2014, and conceded that no complaint bearing those dates appears on record. She used to attend the police station for four to five days thereafter but could not recall the exact date on which the complaint was received. She confirmed that the first complaint dated 03.03.2014 was personally submitted by the plaintiffs at PS Dabri and that she does not know whether any subsequent criminal proceedings were initiated. She denied that any complaint dated 03.03.2014 was omitted from the record because it was never filed.
PW-1 stated that she alone paid the sale consideration for the suit property, although her husband contributed from household savings approx. ₹ 5,000 to ₹ 7,000. She did not know whether her husband later received any notice from Defendant No. 1. That when being asked how she concluded Defendant No. 1's documents were forged and fabricated, CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 12 she stated that, having purchased the suit property on 17.04.1989 and possessing a complete chain of title predating that date, all documents relied upon by Defendant No. 1 were executed subsequently and must therefore be "forged and fabricated."
• She admitted that she never had Defendant No. 1's title documents officially verified, but asserted that plaintiffs are nonetheless the true owners of the property in question.
• She has testified that she and her husband had visited the concerned Tehsil office after filing the suit to ascertain the correct Khasra number; that she could not recall whether any written demarcation request was filed or whether demarcation was carried out (her husband might know). • She denied that the property in question is Plot M-40 in Khasra No. 99/25 rather than in Khasra No. 99/24. She denied that electricity bills filed by Defendant No. 1 establish a rival title to Plot M-41 in Khasra No. 99/25. She denied that plaintiffs lack any right, title or interest in the suit property. She denied that she and her husband have attempted to project Plot M-40 (Khasra 99/25) as Plot M-41 (Khasra 99/24). She denied that Defendant No. 1 never interfered with her possession of the property. She denied that her case is false or that she is deposing falsely.
(ii) PW-2, Sh. Sushil Kumar Jain S/o Sh. Shikhar Chand Jain, was examined on his affidavit as PW-2/A.. He stated that he relied upon the following documents, all of which were brought on record as exhibits:
• Ex. PW-2/1: Election identity card • Ex. PW-2/2: General power of attorney (GPA) • Ex. PW-2/3: Affidavit
PW-2 was recalled for cross-examination. Under questioning by Defendant No. 1, nil opportunity was given. Under cross-examination by Defendant No. 2 (ex parte). Then he deposed that He is now retired CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 13 person. That he joined J.C. Mehta & Company, a private firm, in 1978 as an accountant and remained in its employ until retirement. He testified that no other member of his family has ever worked for that firm. During his tenure of his employment, he drew a salary of ₹ 500/- per month; during his tenure he received a maximum monthly salary of ₹ 25,000/-. That his regular working hours were from 10:00 a.m. to 6:00 p.m., although for two to three months each year he sometimes worked until 8:00 p.m. That he invested in the stock market to the extent of ₹ 4 to ₹ 5 lacs and it must be around ₹ 10 lacs. Apart from his salary, he earned additional income from the stock market. That, he could not state exactly how much income he has generated from the stock market since 1978 but said he could approximate it after reviewing his records. He further deposed that his wife (PW-1) holds an M.A. in Hindi. She imparted tuition classes since the year 1980 till the 1992. Since about 1985-86 she, too, has invested in the stock market. His wife (PW-1) began giving tuition at home in 1986 to primary-class students and, from 1992 onwards, has also invested in the stock market. That she does not understand the accounting business and was unaware of the nature of the work he performed at J.C. Mehta & Co.; that she only knew that he handled the company's accounts. He could not say how much his wife has earned from the stock market since 1992, nor how much she earned from tuition, he estimated that approximately 10-12 students took tuition from her at the relevant time at a fee of ₹ 100 per student per month, but admitted that he had no documentary evidence to substantiate her income. That he had no idea as to what are his savings till date from his salary and stock-market income, but tell the same upon reviewing his ITRs. That he also deposed that He has not yet checked his total savings to date from salary and stock-market investments against his ITRs, which the same record pertains to last 35 years; although he possesses all of CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 14 those ITRs and he had checked the same. That he does not own any property in his individual name. Around 1992-93, he and his wife (PW-1) demolished the existing structure on the suit property (Plot M-41, Khasra No. 99/24, Rajapuri, Delhi) and constructed one room and a boundary wall. The old construction had subsequently fallen down. It was incorrect to suggest that the suit property falls in Khasra No. 99/25.
He stated that he had not checked his savings till date from his salary an stock market from his ITRs. That he had not placeed any bills on record to show that he or his wife had raised construction over alleged suit property. Apart from documents placed on record, he had no other document to show his ownership and ownership of his wife. It is correct that receipt Ex.PW1/4 does not bear details of suit property in the present case. He also stated that only names of receipent and person making payment were mentioned. He stated that it is correct that no registered sale deed was executed in favour of plaintiffs qua alleged suit property. That the GPA and affidavit stand executed in my favour by erstwhile owner and agreement to sell and receipt of payment stand executed in favour of plaintiff no.1. That said documents pertain to year 1989. He stated that it is correct that receipts as receipt Ex.PW1/4 used to get registered at contemporary period in 1989. That he do not remember whether any person namely Mahender Singh s/o Mange Ram and Kedar Yadav s/o Manager Yadav reside around alleged suit property. He do not know whether said persons reside or not around the alleged suit property. He do not know whether Mahender Singh reside in property No.M-38 and whether Kedar Yadav reside at plot no.M44 at first floor. That he was not aware whether Bhim Singh S/o Jai Ram, Ram Singh S/o Mange Ram, Neelam W/o Narender Kumar, Anand Ram Sharma S/o Harak Ram, Anjali Devi Bisht W/o Govind Singh Bisht and Smt. Munni Devi W/o Suraj Singh reside in the vicinity of the suit property.
CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 15He testified that the entire sale consideration was paid by PW-1 (his wife) from her own resources, supplemented by household savings provided by him. He estimated that approximately ₹ 34,000- 35,000 represented his wife's tuition-and-investment earnings, the balance coming from his contributions. He confirmed that PW-1 files income-tax returns annually but did not know when she first began doing so; she must have filed her most recent ITR for the last financial year. He affirmed that Photographs Ex. PW-1/D1 and Ex. PW-1/D2 pertains to the suit property.
He described the suit property as situated in Gali Nos. 11 and 12, with access on two sides. He agreed that the property documents filled by plaintiff on record (Ex. PW-1/5, PW-1/6, PW-2/2 and PW-2/3) bear no reference to street numbers 11 or 12. He testified that plaintiffs and his father went to Kashmere Gate for the execution of Exs. PW-1/5, PW-1/6, PW-2/2 and PW-2/3. That he could not recall whether they placed the negatives and bill records for Photographs Ex. PW-1/2, after examining the file, he was unable to produce any such bills and negatives. He further stated that PW-1 has been the owner of the suit property since its purchase in April 1989 and throughout the pendency of this suit.
PW-2 further stated that, at the time of purchase in 1989, the suit property had no street number and that street numbers were allotted only after a considerable interval. He explained that PW-3, Sh. Anil Jain
--who resides adjacent to the suit property and is not a relative and had telephonically him in the first week of March 2014 to report visits by Defendant No. 1 accompanied by three to four persons which he did not know about the credentials, after which PW-2 had called the PCR regarding the dispute, although he could not recall the exact date (possibly 3rd or 4th March). He denied any personal acquaintance with CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 16 Shyam Lal Bhatia ( Exhibit PW-1/4), but said Shyam Lal Bhatia had attended the execution of Exhibits PW-1/4, PW-2/2 and PW-2/3 alongside the seller, Sh. Rakesh Sharma, and his own father; that he believed the documents had been drafted at Kashmere Gate. PW-2 confirmed that he had filed a police complaint at PS Dabri in the first week of March 2014 concerning Defendant No. 1's conduct, yet he was unaware whether any such complaint appears on the record. That he did not know whether Plaintiff No. 1 had filed any complaint against Defendant No. 1 in 2014. He stated that he did not know whether the notice dated 14.03.2014 issued on behalf of defendant no. 1 as Exhibit PW-2/D1, was ever received by him or not. When asked how he could say that Defendant No. 1's title documents were "forged and fabricated,"
PW-2 replied that he did not know. He admitted that he had never caused any of the defendant's alleged ownership documents to be officially verified, and conceded that they may be correct, but cannot say anything about the same. PW-2 stated that he and PW-1 never approached the Tehsildar's office to ascertain whether the suit property falls in Khasra No. 99/24 or No. 99/25, nor did they recall filing any written application for demarcation. That he confirmed that the electricity bills relied on by Defendant No. 1--now marked collectively as Exhibit PW-2/D2-- pertain only to properties surrounding the suit property, not to Plot M-41 itself. It was wrong to suggest that the suit property is owned by Defendant No. 1 or that it falls in Khasra No. 99/25 rather than No. 99/24. It was wrong to suggest that the plaintiffs (PW-1 and PW-2) are not the owners of the property in question. It was wrong to suggest that the plaintiffs are attempting to project Plot M-40 (Khasra 99/25) as Plot M-41 (Khasra 99/24). He confirmed that the plaintiffs have no concern with Plot M-40 (Khasra 99/25), which is claimed by Defendant No. 1 as his own property. It was wrong to suggest that Defendant No. 1 never CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 17 interfered with the plaintiffs' possession of Plot M-41. It was wrong to suggest that Defendant No. 1 is trying to project Plot M-41 as Plot M-40. Plaintiffs had gone to Police Station Dabri on the date of the incident, i.e. 3ᵈ or 4ᵗʰ March 2014. Defendant No. 1 did not come to PS Dabri on that date in their presence. Then asked about How and when did you come to know about the name, address and other particulars of Defendant No.1? He answered Perhaps from PS Dabri. The concerned investigating officer might have provided the afore-stated particulars of Defendant No. 1. Apart from the present case, plaintiffs have not filed any other litigation against Defendant No. 1. It is wrong to suggest that the suit filed by plaintiffs is false and that PW-2 is deposing falsely.
(iii) PW-3, Sh. Anil Jain was sworn and examined on his affidavit-
in-evidence. He produced his affidavit, which was marked as Exhibit PW-3/A. He deposed that he was acquainted with Sh. Sushil Kumar Jain (PW-2) and his family, but has no prior knowledge of Defendant No. 1; that he became aware of Defendant No. 1 only when the latter allegedly attempted to encroach upon the suit property. That the suit property lies immediately adjacent to PW-3's own house . That the disputed plot, together with two others, bears the number "41"; it falls in Khasra No. 24, whereas PW-3's house falls in Khasra No. 25. That he does not know who purchased the suit property or when the purchase occurred, and denied that Defendant No. 1 holds title to it. He further deposed that he has never inspected any title deeds for the suit property and denied that Defendant No. 1 effected any construction thereon; he added that Defendant No. 1's construction activity occurred only in connection with the alleged attempt to grab the land, the exact date of which he could not recall. He testified that since the institution of this suit, he is unaware of CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 18 any construction carried out by the plaintiffs on the suit property or of the source of any such funds. He had not been served with any court summons but came to testify of his own accord as a neighbour. It was wrong to suggested that PW-3 is not aware of the facts of the present case and only knows what has been told to him by the plaintiffs. He replied that, as the immediate neighbour of the plaintiffs and of the suit property, he is fully aware of the facts of the case. PW-3 volunteered that he constructed his own house in 2001 and, at that time, he had taken a room in the suit property from the plaintiffs. It was wrong to suggest that there was no room on the suit property in 2001. It was wrong to suggest that he was deposing falsely at the behest of the plaintiffs.
(iv) PW-4: Sh. Desh Bandhu, UDC, Office of the Sub-Registrar-II, Basai Darapur, New Delhi. The witness stated that he was the summoned official and produced the original sale-consideration receipt dated 17.04.1989, executed by Sh. Rakesh Kumar Sharma S/o Sh. Hem Raj Sharma for ₹ 40,000 registered vide registration No. 19088 in Book No. 4, Volume No. 2266, at page 121 on 17.04.1989 (OSR). The document was admitted in evidence as Exhibit PW-4/1.
(Sh, Mokhtar Mahto, who was present as PW4 in place of Sh. Desh Bandhu) PW-4: Sh. Mokhtar Mahto, Record Keeper, Office of the Sub-Registrar- II, Kashmere Gate, He stated that he was the summoned official and produced the original receipt dated 17.04.1989 executed by Sh. Rakesh Kumar Sharma S/o Sh. Hem Raj Sharma for ₹ 40,000. He identified the registration particulars as Registration No. 19088 in Book No. 4, Volume No. 2266, at page 121 dated 17.04.1989 (OSR). The document was marked and admitted in evidence as Exhibit PW-4/1. He admitted that Exhibit PW-4/1 does not record the purpose for which the amount was CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 19 received. He stated that he did not know whether such receipts may be registered for any purpose. He confirmed that no photograph of any party is affixed to the receipt; at the time of registration photographs were not affixed, although he noted that photographs are now commonly attached. He observed that modern receipts likewise omit the purpose of receipt and that no revenue ticket is on the office copy on file; however, the original receipt given to the party bears the requisite revenue ticket.
(v) PW-5: Sh. B.R. Sharma, Patwari, Office of the SDM, Dwarka, New Delhi.
He stated that he was the summoned official and produced the original Khatauni/Fard of Gaon Palam for the year 2002-2003 in respect of Khasra No. 99/24, showing the following owners in equal shares:
Narender Swaroop, Surender Swaroop, Devender Swaroop and Yogender Swaroop (sons of Ram Swaroop), and Kishan Swaroop (son of Keshav Ram). The record bears the official stamp and was marked and admitted in evidence as Exhibit PW-5/1.
Plaintiff's evidence was closed on 11.03.2024 and the matter was adjourned for defendant's evidence.
7. Defendant's Evidence
(i) D1W1: Sh. Raghubir Singh S/o Late Sh. Baljeet Singh, tendered his evidence by way of affidavit, marked as Exhibit D1W1/A. He relied on the following documents, which had already been exhibited in the cross-examination of PW-1 and PW-2 and are now to be referred to as follows:
• Ex. P1/D1 and Ex. PW-1/D2 were photographs mentioned Ex. D1W1/2 in his affidavit (Ex. D1W1/A) and were previously exhibited. They are now referred to as Ex. D1W1/2 (colly).CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 20
• Ex. D1W1/1 (colly) is the office copy of the notice and postal receipt. This document was earlier marked as Ex. PW-2/D1.
• Ex. PW-2/D2 (colly) refers to four electricity bills, which were inadvertently marked as "Mark A" in his affidavit (Ex. D1W1/A) and had already been exhibited during the cross-examination of PW-2. These are now to be read collectively as Ex. D1W1/A (colly).
He stated that he aged 79 years, was born in Village Mohammadpur Rai Singh, District Muzaffarnagar, U.P. and is currently a pensioner from Delhi Police, having retired as an SI in 2005. He mentioned that during the COVID-19 pandemic, he suffered tuberculosis (T.B.), which caused his lungs to fill with water, and he continues to receive medication for the same from RML Hospital. He acknowledged that at times, he gets confused due to his age. He denied being confused about identifying the plot in question and stated that it does not belong to the plaintiffs. He confirmed that he can read, speak, and understand Hindi, with limited understanding of English. That he served in Delhi Police from 07.01.1967 until his retirement in 2005. He did not recall whether the affidavit Ex. D1W1/A was prepared at his instructions, nor did he recall whether the affidavit was attested at the time of preparation. He clarified that he did not remember the specific details regarding the attestation of Ex. D1W1/A by the Oath Commissioner. He denied suggestions that the signatures on the affidavit for the identification of the plot were not made during the attestation by his counsel. He confirmed that he does not file ITR and was unaware of the requirement to declare assets and file ITR during his employment.
In response to the question about filing original title deeds for the suit property, he stated that he had not filed such deeds in the present suit also explained that his counsel had advised him not to submit the CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 21 original title deeds of the property in question at this stage but assured that they could be produced if required. He confirmed that he can bring the original title deeds in his favour and rejected the suggestion that he had not filed the title deeds of the property in the present suit. He testified that the property never belonged to him until now, but he is the owner and holds the original title deeds in his name.
He was asked if there were any other property disputes involving his name in any other court. He answered negatively, confirming that there were no such disputes. He further detailed that the property in question is located at M-40, Khasra no. 99/25, Rajapuri, Palam, and was purchased by him in 1989. He stated that in that year, he was working with Delhi Police and residing at Jeewan Park. He mentioned that a friend named Ranjeet Singh had informed him about the sale of the property. He also added that Ranjeet Singh, who was under private employment and lived in Bulandshahr, is still alive but unable to attend the court due to a serious injury in his backbone. Sh. Raghubir Singh emphasized that Ranjeet Singh had not taken any brokerage for the purchase of the property by him.
He stated that he did not remember his exact salary in 1989 but claimed that he could determine the same through the RTI. He also confirmed that he had paid the entire sale consideration for the property in question, amounting to Rs. 1,00,000/- and Rs. 70,000/- from his department in the year 1989 was sanctioned by the Delhi Police in two tranches of Rs. 35,000/- each. However, he did not have any documentary evidence to show that he had availed of the said loan from his department. That all relevant documents were in possession of the Delhi Police. He refuted the suggestion that he had not filed any document related to the loan. He confirmed that he had purchased the property in question from Sh. Surender Saroop but did not remember CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 22 when or where he had first met him. According to Sh. Raghubir Singh, Surender Saroop appeared like an ordinary human being without any distinguishing features. Upon being asked for a description, Sh. Raghubir Singh stated that Surender Saroop was approximately between 5 ½ to 6 feet tall and appeared to be a healthy person. He also clarified that he had met Surender Saroop 3-4 times, once in Pusa where Surender Saroop was working, and also in Palam. He did not know Surender Saroop's department or where he was currently residing, nor did he know if he was alive or not. He further stated that he had not tried to contact Surender Saroop after the plaintiffs claimed ownership of the property. He denied the suggestion that he had failed to try to reach out to Surender Saroop, affirming that he did not contact him as the plaintiffs had already claimed ownership of the property. He also confirmed that he had never met Surender Saroop post the plaintiffs' claims. That he was no way related to Surender Saroop in any way. He affirmed that he had purchased the property in question for a sum of Rs. 25,000/- in a single transaction. He made the payment in cash to Surender Saroop. This transaction took place in front of the court, where the title deeds were also prepared in his favour. The title deeds were prepared at Kashmere Gate, with both Ranjeet Singh and Surender Saroop present at the time of preparation. He further stated that the possession of the property was handed over to him by Surender Saroop, and at the time of possession, the property was a vacant plot. Sh. Raghubir Singh had built a room along with a boundary wall on the property after taking possession. He could not confirm whether the title deeds in his favor were registered sale deeds. Also, he was uncertain whether the receipt for the payment of Rs. 25,000/- had been filed as part of the present case record. The receipt, he noted, was executed by Surender Saroop in his favor. When shown the judicial file to identify the receipt, he could not point out the receipt in CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 23 the file. He denied the suggestion that the receipt had been filed in the present case, asserting that no such receipt was available in the record.
He further deposed that apart from the property in question, he owns property in his ancestral village, which he acquired through inheritance. He denied owning any property in Dwarka, apart from the property in question. He also could not remember how many people were residing near the property at the time of its purchase. He confirmed that the entire colony was underdeveloped and had no construction at the time of purchase.
He denied the suggestion that he was unaware of who was residing near the property, stating that he never visited the locality at the time of purchase. Sh. Raghubir Singh also stated that he could not provide any details about the construction of nearby properties at that time, as he had not visited the locality. He further denied knowledge of the development around the property in question, as he had never purchased it.
Regarding the ownership of adjacent plots, he denied knowing the owner of such properties and stated that he did not purchase the property in question. He had not attached the site plan of the property in question, stated that the property is surrounded by constructed houses on all four sides and has roads on two sides. He was unable to tell the direction in which the front of the house faces, nor could he specify which side of the gali is bigger. He mentioned that the property is located in gali numbers 11 and 12, but he could not provide the property number of the adjacent properties on either side. Asked about regarding the ability to draw a rough sketch of the property, he admitted that he is not a draftsman and could not provide a sketch. He stated that the property is square in shape, measuring 170 square yards. He confirmed that he had raised a room and boundary wall in 1989 after purchasing the property, CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 24 engaging local mason and labor from the area for the construction. He was present on the property during the construction and personally oversaw the work.
When questioned about the exact location of the room, he explained that there are two streets around the property; one is lower, and the other is higher. The room he constructed was built towards the higher street. He also stated that he did not know who resides around the property as he was not familiar with the neighbors. The room that he had constructed still exists in a dilapidated condition, and one of the neighbors has been throwing debris into the property. He did not know when the room was partly demolished by unknown individuals and confirmed that he had not filed any report qua said demolition. He did not know as to who has damaged the room, when it was damaged and he had not filed any report qua said damage as neither he purchased the property in question nor he was in possession of the same. He further clarified that the room raised by him in the property in question was adjacent to wall of Mr. Jain.
He also stated that he was unaware of whether the other neighbor had constructed their house. He mentioned that he did not know about any of these constructions because he had neither purchased the property in question nor visited the area. He explained that he did not remember the cost of raising the room and boundary wall but confirmed that the entire boundary wall and room were made of bricks. He had not applied plaster over the room or boundary wall.
Regarding the gate and boundary wall, he deposed that a linter was laid on the room and a gate was installed at the boundary wall. However, he also stated that the gate has been stolen. The gate was divided into two parts, one of which was stolen, and the other was lying in the debris on the property. He further clarified that the gate facing the CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 25 road was black in color, while the other gate was no longer functional and lacked color.
When asked if there was any gate or door on the property, Sh. Raghubir Singh explained that there were two doors on the room, one of which had been stolen while the other was covered with debris. He confirmed that the gate inside the plot of the room had also been stolen and that he had not filed any receipts for the constructions made on the plot.
He further clarified that he was shown the photograph Ex. PW1/D2, which depicted a blue door. He confirmed that the blue door is the same door shown in the photograph, which exists towards the road/gali, although it was covered in debris. He could not recall when the door turned blue. Additionally, he mentioned that there was an iron window in the room he had constructed on the property in question, but the iron window was stolen. He stated that the iron window had provided visibility of his plot, as well as the house of the adjacent neighbor in the property in question. From that window, the street on the lower side was also visible, but he did not know the covering used on the bricks between points A, B, C, and D in the photograph Ex. PW1/D2.
He also emphasized that it was incorrect to suggest that he did not know who applied the covering to the bricks or painted the gate blue. He stated that he was unaware of the persons responsible for these actions because he had neither purchased the property in question nor been in possession of it at that time. He also reiterated that he had not raised any construction on the property.
In response to a question regarding the direction of the window, he confirmed that the window faced the street on the lower side.
Further, he mentioned that he had contacted a documents writer at Kashmere Gate for the preparation of the title deeds for the CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 26 property in question. He stated that one Ranjeet Singh had served as a witness for his title deeds. He stated that the receipt of Rs. 25,000/- issued by Sh. Surender Saroop in his favor was not registered, and he was unaware of the receipts' registration status. He stated that it was incorrect to suggest that such receipts were registered as he had not purchased the property in question, no photography was done at the time of the handover of possession by Sh. Surender Swaroop. He also clarified that Mr. Ranjeet Singh was present at the time when possession of the property was transferred to him by Sh. Surender Swaroop. He emphasized that it is incorrect to suggest that there were no photographs of the handover process, as he had not bought the property and thus was not in possession of it at that time.
He further deposed that after raising construction on the property in question, he frequently visited the site and met several people. However, he could not confirm whether any of those individuals could vouch for his ownership of the property. Despite regularly visiting the property, he could not recall when the adjacent plots were constructed or who caused the damage to the room on his property. He also disagreed with suggestion that he could not remember these facts, stating that it was because he had not purchased the property and never visited it. The written statement in the present case had been filed as per his instructions. He had not filed any counterclaim or any other suit to seek a declaration of ownership in favor of the property, as he had all necessary proofs to establish his ownership.
He testified that had never filed a property tax return for the property in question and had not declared the ownership of the property to the Delhi Police department. Since the year 1989, he had never intended to sell it and did not get his name plate installed on the property until 2013, when an altercation took place with an individual, which was CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 27 noted as preliminary objection no. 9 in his written statement. Lastly, he stated that he did not remember any incident occurring regarding the property, particularly regarding any such incident taking place, and firmly denied any involvement in any incidents as claimed by the plaintiffs. That plaintiffs are not in possession of the suit property. In the year 2014, while he was getting some repairs done on the property in question, a neighbour namely Mr. Jain, along with 7-8 other persons, allegedly gathered at the site. Subsequently, Plaintiff No.2, along with 3- 4 persons, also joined them so he had called the police in response to this situation. He did not know whether the plaintiffs had also contacted the police at that time. He further stated that he did not know whether the individuals whose electricity bills had been filed by him in the case record would be in a position to identify him as the owner of the suit property. The said electricity bills, he asserted, were collected directly from the respective owners of those houses. It was deposed that all the individuals from whom the electricity bills were obtained resided in the same street as the property in question and that all of those properties fell within Khasra No. 99/25. That he had not filed any site plan to show the same. The defendant also stated his lack of knowledge about whether any other house in the same street fell in Khasra No. 99/24. That he was uncertain whether the house of his adjacent neighbour, other than Mr. Jain, fell within Khasra No. 99/24. He denied the suggestion that his defence was false. He denied that he was not the owner of the suit property or that he was deposing falsely.
(ii) D1W2 Sh. Harjeet Singh, MTS (Multi-Tasking Staff), SDM Office, Sec-10, Dwarka Sh. Harjeet Singh, the summoned witness, brought a letter dated 13.05.2024, of Sh. Ajay Pal, Tehsildar, Tehsil Dwarka, along with a CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 28 report dated 10.05.2024, prepared by Sh. Ashwani Kumar, Patwari, Tehsil Dwarka. According to the report, the demarcation of the property in question can only be done using Total Stationary Machine (TSM), for which a requisition has already been sent to TSM Surveyors. The letter dated 13.05.2024 is Ex. D1W2/A, and the report dated 10.05.2024 is Ex. D1W2/B. He stated in his cross examination that he had not brought any identification to prove that he is presently employed as an MTS at SDM Dwarka, Sec-10. He stated that he had only joined the current job a month ago. He claimed not to know the meaning or implications of urbanization that were mentioned in the matter. As a recent joiner, he admitted that he did not have the requisite knowledge or competence to explain the map filed by the SDM Office in the present case. Additionally, he expressed ignorance about the property in question, stating that he had no knowledge of the property's details. He also confirmed that he was unable to determine whether one gali can have properties falling into two khasras. Furthermore, he stated that he did not know if the maps had been changed since 1989 or if there had been any re-assigning of plot numbers in the locality where the property in question was situated.
(iii) D1W3 Sh. Kedar Yadav, s/o Sh. Manager Yadav Sh. Kedar Yadav, the summoned witness, testified that his house number M-44 falls in Khasra no. 99/25. He stated that he has not seen the property in question in the present suit. He had brought Aadhar card as identity proof but did not bring any original document to show that his house falls in Khasra no. 99/25. However, he mentioned that he has an electricity bill on his phone to support his claim, which was identified during judicial file examination. That the bill bearing a due date of CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 29 13.11.2013 was marked as D1W3/A. That he confirmed that he can bring the original title deeds of his property to prove it falls in Khasra no. 99/25.
He further testified that he purchased the house in 2006 from Smt. Ram Kala and has been residing there since then. He admitted that he did not know anything about the property in question or the present matter. He stated that he could not bring the original copy of the bill he identified in the judicial file. He also mentioned that he could not comment on the authenticity of the electricity bill identified. He was unsure whether there were any other properties in his locality bearing a different Khasra number. He also clarified that he has not given the said electricity bill to defendant no. 1, Sh. Raghuvir Singh.
(iv) D1W4 Ms. Anjali Bisht, w/o Sh. Govind Singh Bisht Ms. Anjali Bisht, the summoned witness, stated that her house number M-41 falls in Khasra no. 99/25. She clarified that she has not seen the property in question in the present suit. She brought her Aadhar card as identity proof but did not provide any original document to show that her house falls in Khasra no. 99/25. However, she did provide an electricity bill to support her claim, marked as Ex. D1W4/A, which she confirmed was identified through judicial files bearing the due date of 13.11.2013, and marked as MARK D1W4/B. She also stated that she could bring the original title deeds of her property to prove that it falls in Khasra no. 99/25.
She testified that she purchased the house in 2005, but she did not know from whom it was purchased. She has been residing there since 2021. She also mentioned that she was not aware of the property in question or the present matter being discussed. That she could not bring the original copy of the bill identified in the judicial file and could not CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 30 comment on the authenticity of the bill. Furthermore, she did not know whether there were any other properties in her locality bearing a different Khasra number. She confirmed that she had not given the electricity bill to defendant no. 1, Sh. Raghuvir Singh.
(v) D1W5 Sh. Mahender Singh, S/o Sh. Mange Ram Sh. Mahender Singh, the summoned witness, stated that his house number M-38 falls in Khasra no. 99/25. He admitted that he has not seen the property in question in the present suit. He brought a photocopy of his Aadhar card as identity proof, the same is Ex. D1W5/A (OSR). He further stated that he had not brought any original documents to show that his house falls in Khasra no. 99/25.
The witness, after reviewing the judicial file, confirmed that the electricity bill bearing the due date of 13.11.2013 was his, and this document is marked as D1W5/B. He also mentioned that he could bring the original title deeds of his property to show that it falls in Khasra no. 99/25.
He testified that he is the owner of the property and that he purchased the house in 1995 from a property dealer named Sh. Rishi. He has been residing in the house since 1996. He stated that he did not know anything about the property in question or the present matter. He clarified that he could not bring the original copy of the electricity bill identified in the judicial file and could not comment on the authenticity of the bill. He also stated that he could not confirm whether there are any other properties in his locality bearing a different Khasra number. Additionally, he confirmed that he had not provided the electricity bill to defendant no. 1, Sh. Raghuvir Singh.
(vi) D1W6 Sh. Bhim Singh, S/o Sh. Jage Ram CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 31 Sh. Bhim Singh, the summoned witness, stated that his house number M-37, falls in Khasra no. 99/25. He admitted that he has not seen the property in question in the present suit. He had brought his Aadhar card as identity proof, marked as Ex. D1W6/A (OSR). However, he did not bring any original documents to show that his house falls in Khasra no. 99/25.
The witness, after reviewing the judicial file, confirmed that the electricity bill bearing the due date of 13.11.2013 was his, and this document is marked as MARK D1W6/B. He further stated that he can bring the original title deeds of his property to show that it falls in Khasra no. 99/25, if the court directs him to do so.
He testified that he is the owner of the property and purchased the house in around 1998 from Sh. Rishi Pradhan. He has been residing in the house since 2023. He stated that he did not have any knowledge about the property in question or the present matter. He clarified that he could not bring the original copy of the electricity bill identified in the judicial file and could not comment on the authenticity of the bill. He also mentioned that he could not confirm whether there are any other properties in his locality bearing a different Khasra number. Additionally, he confirmed that he had not provided the electricity bill to defendant no. 1, Sh. Raghuvir Singh.
(vii) D1W7 Sh. Sanjeev Kumar, ASO, SDM Office, Najafgarh with additional charge at Tehsil, Dwarka, New Delhi.
Sh. Sanjeev Kumar, the summoned witness, stated that he is an ASO in the SDM office, Najafgarh, and he also holds the additional charge at Tehsil Dwarka, New Delhi. He testified that the demarcation report detailed in Ex. D1W7/A (colly) was signed by him at points A and B. The demarcation, as described in the report, was carried out in his CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 32 presence. He further added that although he had been promoted to ASO in the current year, he has been looking after the work of Kanungo as he has not yet been given charge of ASO till date.
He stated that the demarcation of the property in question was conducted in his presence, and the Tehsildar Dwarka had directed him to oversee the demarcation. He further confirmed that he is the field Kanungo of South West District covering the entire revenue South West District. He further clarified that although he had not received the copy of the court's order directing demarcation, it must have been received in the Office of Tehsil, Dwarka. His responsibilities during demarcation included pointing out reference points/mustakil patha to the surveyor and other persons present on the spot at the time of demarcation. That he is also tasked with overseeing that the surveyor marks four corners of the khasra number to be demarcated. Sh. Kumar confirmed that the demarcation was completed on 03.10.2024.
When asked about identifying parties in litigation in the present case, he confirmed that he can identify the parties who were present on the spot at the time of demarcation. He stated that he had come to know about the parties involved in the dispute during the course of the inspection. That despite not having any official document at the time, he could identify the parties based on the information he received from a passerby present at the spot. That he had carried out inspections on 12.09.2024 and 03.10.2024. That during the inspection, the representative of plaintiff no. 1 refused to sign the inspection report, despite their insistence on doing so.
When asked if notices had been sent to both parties, he deposed that he believes the notice was pasted on the wall of the disputed property on 11.09.2024, although he could not comment on the exact timing. He clarified that posting the notice was part of the duty of the CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 33 Halka Patwari. When asked for the copy of the notice, he referred it to the counsel for the plaintiff, indicating that it was available for their review. However, he could not explain why the plaintiff's name was not mentioned in the notice, although the defendant's name, lineage, and address were clearly stated.
He also explained that the notice did not identify the case filed for the disputed property. Point 12 of the notice stated that all relevant members from the landholding families of Khasra no. 99/24 and 99/25 of Village Palam were informed. He admitted that between 12.09.2024 and 03.10.2024, when demarcation was completed, there had been a court hearing, although he did not attend it. That the representative from his office attended the hearing, and he mentioned a lack of cooperation from the representative of plaintiff no. 1 in his report dated 12.09.2024.
Furthermore, he clarified that although the demarcation had been carried out as per Delhi Land Revenue Act guidelines, the process lacked a dedicated court hearing between the two dates. He emphasized that it was incorrect to suggest that he was not cooperating with the defendant or hindering the plaintiff's involvement in the process. He affirmed that the demarcation had been done properly under the guidelines established by law, including the rules of the Delhi Land Revenue Act.
He stated that checking revenue records, such as Khasra Girdawari, Khatoni, Jamabandi, etc., is an essential part of the demarcation process. However, the witness admitted that he was not aware of the specific guidelines for conducting demarcation, but when carrying out the process, relevant records such as the field book, Sizra/Mosavi, and Khatoni/Jamabandi of the Khasra no. to be demarcated were referred to. He clarified that copies of these records were provided to the surveyor during the demarcation process.
CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 34That the data present in the Khatoni records must be synchronized with the outcome of the demarcation. It was further emphasized that the outcome of demarcation cannot override the data of Khatoni/Jamabandi. The witness mentioned that, in this case, all the necessary documents, including the field book and Sizra/Mosavi, were referred to during the demarcation process.
When asked about the possibility of bringing the field book, Sizra/Mosavi, and Khatoni/Jamabandi of the relevant Khasra numbers 99/24 and 99/25, the witness stated that he could not bring those documents himself, but confirmed that they could be brought by the Halka Patwari.
Regarding the continuation of the demarcation process even when parties do not identify the property in question or refuse to cooperate, the witness affirmed that the process continues, as seen in this case. Both parties were present at the site when the revenue staff arrived, and both parties had identified the property. However, the representative of the plaintiff in the current case refused to sign the demarcation report. The witness identified the plaintiff no. 2 his son and the defendant no. 1, who were present at the time of demarcation.
When the witness was asked if service of notice to interested parties for demarcation was mandatory before the actual process. He confirmed that, yes, while service of notice is typically mandatory, if time is short as per orders of the court, they paste the notice on disputed property through Halka Patwari. In the present case notice of demarcation was pasted on disputed property but not service upon both the parties.
He further clarified that notice was not served upon the parties for the inspection of the site for demarcation on 12.09.2024. The reason provided was that the written notice was not issued to the parties CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 35 involved; instead, a public notice was pasted at the spot to inform any interested persons about joining the demarcation proceedings. He was unable to confirm the exact time when the notice for demarcation on 03.10.2024 was pasted on the disputed property.
When questioned about why notice was not served on the parties for the demarcation on 03.10.2024, despite there being a gap between 12.09.2024 and a court date, the witness reiterated that the written notice was not served but a public notice was posted at the location. He further explained that Defendant no.1 had already arrived at the spot on 03.10.2024, though he did not recall the exact time he reached there. He stated that the demarcation was scheduled to begin at 3:00 pm on 03.10.2024, and the revenue staff and surveyors were waiting for the plaintiffs to arrive. Despite waiting until 5:00 pm, the plaintiffs did not arrive, and the witness mentioned he did not have any contact details for the plaintiffs.
Additionally, in response to whether he referred to the Khasra number of adjoining plots while conducting the demarcation, he clarified that during agricultural land demarcation, Khasra numbers are sometimes checked for reference.
He stated that during the demarcation process, any of the parties could have provided supporting documents or applications to substantiate their claim, but no such documents were provided during this particular demarcation process. That he acknowledged that while documents are typically taken into account during demarcations, none were submitted in this case.
While conducting the demarcation process for the property in question, Sh. Sanjeev Kumar did not cross-check the property or Khasra number of adjoining properties. He was unaware as to why Sh. Kedar and Smt. Munni Devi were notified to be present during the process, as CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 36 he was not the notice-issuing authority. He further stated that it was incorrect to suggest that only Sh. Kedar and Smt. Munni Devi were notified at the instruction of the defendants to substantiate their claim.
He explained that the demarcation process cannot proceed without the support of the TSM. He was uncertain whether the Khasra number of the present village had changed more than once, as chekbandi (boundary marking) could occur if the boundary of the map remains the same. He also expressed uncertainty about when and how the chekbandi is done. Furthermore, he clarified that the Khasra number typically undergoes changes only during the chekbandi process. He confirmed that the chekbandi would have been carried out at the time of the demarcation. He clarified that the chekbandi process was carried out when the land in question was agricultural. That the records of Sizra, available with the Patwari, confirm when and how many times chekbandi has been conducted in the village. Sizra is the map of the village that contains key details such as the Khasra no., village name, year of chekbandi, and the Tehsil, and it is available with the Patwari.
He rejected the suggestion that he was influenced by defendant no. 1, Raghubir Singh. He also refuted the claim that he was under any pressure from Raghubir Singh. Furthermore, he denied the suggestion that he had arrived late to the demarcation site on 03.10.2024 and informed defendant no. 1 in advance to prevent the plaintiff from being a part of the demarcation process.
(viii) D1W8 Sh. Ajay Pal, Tehsildar from SDM Office, Sec-10, Dwarka, New Delhi He was summoned witness in the present matter. He stated that at the time of the demarcation of the suit property, in compliance with the order of the court dated 19.04.2024, he was serving as the Tehsildar in the CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 37 mentioned office. He had submitted a letter to the court on 24.04.2024, under his signature, stating that the demarcation of the suit property could only be carried out by TSM. The letter submitted was marked as Ex. D1W8/A. Additionally, he had submitted a letter on 11.05.2024, bearing his signature, marked as Ex. D1W2/A, alongside the report of Halka Patwari with his signature on point A. He confirmed that the demarcation report, bearing his signature at point C on internal page 3, was submitted to the court and is marked as Ex. D1W7/A. He explained that as the Tehsildar, upon receiving the order from the court for demarcation, he issued a notice to the Kanungo to carry out the demarcation process. That once the demarcation was completed, the report was submitted to the court. He clarified that although demarcation is not generally allowed in land that has undergone urbanization, it was still carried out as per the court's order. He mentioned that he was not aware of the specific process for demarcation, but he was certain that the process was being carried out by the Kanungo. That he emphasized that the process was only carried out once they received the order from the court they inform the relevant Kanungo either in writing or verbally to carry out the demarcation and mark the letter received to the Kanungo. That he explained that after receiving the court's order via an application moved by Sh. Raghubir Singh on 22.04.2024, he issued an order to Sh. Raghubir Singh to submit the payment receipt for carrying out the demarcation. This receipt was deposited by Sh. Raghubir Singh on 23.04.2024. That he had instructed Patwari Ashwani Kumar and Kanungo Sanjeev Kumar to carry out the demarcation over a phone call. He did not recall the exact date when these instructions were given.
Regarding the delay in issuing the demarcation notice, he CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 38 clarified that the notice was issued by him on 11.09.2024 and 01.10.2024. He attributed the approximately 5-month delay in issuing the notice to the workload in the SDM Office.
He clarified that the delay in carrying out the demarcation was solely due to the unavailability of Kanungo, and not for any other reason. He explained that his role in the demarcation process is to mark the process and ensure the necessary officials follow court orders. That he also highlighted that the standard process for issuing notice to all concerned parties is done via Dak Post, which is sent 10 to 15 days in advance before carrying out the demarcation. He assured that he followed the standard operating procedure (SOP) in this case and sent the notices through Dak Post for both 11.09.2024 and 03.10.2024 well in advance. The tracking report of the Dak Post is available with the diary dispatch representative, Patwari of their branch.
He agreed that both the plaintiffs and defendants are concerned parties in the demarcation process. He further clarified the procedure for demarcation in urbanized lands. He stated that once land is urbanized, the authority to carry out the demarcation is transferred to MCD and DDA, and his office is not the requisite authority unless special court orders are issued for demarcation. He emphasized that court orders are sufficient for conducting the demarcation process, although he could not cite any statute that provides overriding power in this regard. That he was not sure about when the village of Palam became urbanized, but confirmed that the process of urbanization had taken place, as indicated by the Khasra number records.
Further, he clarified that Khasra numbers are used to identify land in the records, which also includes details such as the owner of the land. He mentioned that the intimation notice for the demarcation process, issued for 11.09.2024 and 01.10.2024 for carrying out the CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 39 demarcation on 12.09.2024 and 03.10.2024, is marked with 'A' and 'B' respectively. He also indicated that he was unaware of the mode of intimation to the parties, as it is the responsibility of the Patwari or Diary Dispatch to manage such matters. That the delay in the demarcation process was attributed to the unavailability of the Kanungo, who oversees the work of all Tehsils in the South West District. He also mentioned that he had visited the disputed property for demarcation but had to return due to an urgent issue requiring attention, as notified by the SDM.
He testified that his absence on 03.10.2024 during the demarcation process despite being present earlier for the same. He clarified that the delay was due to his inability to attend because of a preexisting engagement and because he trusted the Patwari and Kanungo to carry out the task. He stated that he did not directly participate in the demarcation process as the report was prepared and presented by them.
He further stated that he had not mentioned the specific suit properties in the report but had focused only on demarcating Khasra numbers as per the Revenue record. He acknowledged the inadvertent omission of the plaintiff's name in the report, which was crucial for maintaining impartiality during the demarcation process. He emphasized that Kedar and Munni, neighbors to the plaintiff, were the ones informed about the process to maintain fairness.
Regarding the confusion about the omission of the plaintiff's name, Sh. Ajay Pal denied any intentional wrongdoing. He explained that the process was properly conducted as he was busy with personal commitments and mentioned his role was only to oversee the procedures conducted by Patwari and Kanungo. There was only one sizra for the entire village and matches with the map appended with the said report. The statement was concluded with his assurance that the details CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 40 presented were true to the best of his knowledge.
8. Thereafter, the defendant's evidence was closed on 29.04.2025 and matter was listed for final arguments.
9. Final arguments have been heard. I have gone through the judicial record.
During final arguments, it is submitted by Ld. Counsel for plaintiff that the present suit has been filed by plaintiff for Permanent and Mandatory Injunction in respect of Suit Property i.e. Plot No. 41 Block M measuring 168 Sq. Yds. Khasra No 99/24 Village Palam Gali No. 11 and 12 Raja Puri New Delhi and sought the relief of permanent injunction in favour of the plaintiff and against the defendant No.1 thereby restraining the defendant No.1, his associates, agents, relatives, etc. etc. from selling the property in question and dispossessing the plaintiffs from the suit property i.e. bearing Plot No.41, Block M, measuring 168 sq. yds. out of Khasra No.99/24, Village Palam, New Delhi, presently known as Gali No.11 and 12, Raja Puri, New Delhi, which is clearly shown in red colour in the site plan annexed with the plaint, and the defendant No.1 be further restrained from selling, transferring, alienating, parting with possession of the suit property in the interest of justice and also the relief of mandatory injunction in favour of the plaintiff and against the defendant NO.1 thereby directing the defendant NO.1 not to enter into the suit property in any manner whatsoever and create any hindrance or disturbance or nuisance in the peaceful possession / occupation of the plaintiff in the suit property in any manner whatsoever and the defendant No.2 may be directed to secure the life and property of the plaintiffs.
It is submitted that during plaintiff's evidence, to discharge the CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 41 burden of proof the plaintiff has examined four witnesses i.e. Shashi Jain i.e. Plaintiff No. 1| PW-1, Sushil Kumar Jain i.e. Plaintiff No. 2 | PW - 2, Anil Jain i.e. Immediate Neighbouring to the Suit premises | PW 3, Mokhtar Mahto i.e. Record Keeper from office of Registrar II Kashmiri Gate Delhi 110006,| PW 4 BR Sharma i.e. Patwari from the office of SDM Dwarka, New Delhi. It is submitted that these witnesses have proved all the documents, which were required to be proved for discharging the burden of proof on plaintiffs. It is submitted that plaintiffs have proved that they are owner of property in question by proving the chain of documents as well as proving the title of previous owner by proving the original khatoni/fard Ex. PW5/1. It is submitted that PW-1, PW-2 and PW-3 who had deposed about the fact of present case had also been cross examined at length on behalf of defendant No. 1, and these witnesses have deposed in their cross examination consistently with their affidavit of examination in chief as well as the case of plaintiff and nothing could have come in the cross examination of PW-1, PW-2 and PW-3, which could have weaken the case of plaintiff. It is submitted that plaintiff has proved its ownership as well as possession of the property in question and the fact that defendant No. 1 has right to raise illegal construction, which has left the plaintiffs with no other option except the filing of present suit. It is submitted that though defendant No. 1 had alleged himself to be owner of suit property though stating the number of property to be plot No. 40, Khasra No. 99/25, Village Palam, however, no title document of any sort has been proved by defendant No. 1 to show that he is the owner of suit property or the fact that correct number of property is Plot No. 40, Khasra No. 99/25, Village Palam. It is submitted the falsehood of the defence of defendant has been emphasised by examination of D1W3 to D1W6, who are owners of plot whose electricity bills have been filed by defendant No. 1 CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 42 along with their WS as they have stated in the cross examination that they had not given the said electricity bills to defendant No. 1 and are not aware about the suit property. Ld. Counsel for plaintiff has taken the strong objection towards the demarcation conducted at the instance of defendant No. 1 and filing its report, on the ground that plaintiff was not served with the notice for the alleged demarcation, despite the clear directions in this regard by the Court and as a result of which the alleged demarcation taken place in the absence of the plaintiffs or their representatives and also on the ground that the SDM was not authorized to demarcate the property as the property as per examination of D1W7 and D1W8 was already urbanized and only DDA and MCD were authorized to demarcate the property in question. The Ld. Counsel for plaintiff has submitted that the said demarcation is also otherwise not required as plaintiff has already proved the ownership and identity of property. Ld. Counsel for plaintiff, has relied upon the following pronouncement of Hon'ble Superior Courts:
(i) Judgment passed by Hon'ble Delhi High Court in case titled as Nathu Ram v DDA & Anr dated 01.02.2022.
(ii) Judgment passed by Hon'ble Madras High Court in case titled as Renganathan & Ors v Loganathan and Ors dated 10.08.2022.
(iii) Judgment passed by Hon'ble Madhya Pradesh High Court in case titled as Arvind Chouhan v SDO Sehore & Ors dated 01.02.2023.
(iv) Judgment passed by Hon'ble Delhi High Court in case titled as Kamaljeet Bajwa & Ors v Govt. of NCT of Delhi & Ors dated 18.07.2023.
(v) Judgment passed by Hon'ble Delhi High Court in
case titled as Novel Trade Links LLP & Ors v DDA & Ors
dated 26.09.2024.
(vi) Judgment passed by Hon'ble Himachal Pradesh
High Court in case titled as State Of H.P. vs Laxmi Nand And Ors. dated 09.01.1992.
CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 43Ld. Counsel for defendant has submitted that suit of plaintiff is liable to be dismissed on the ground that plaintiff has filed suit for simplcitor injunction, though considering the fact that the defendant No. 1 has disputed the identity of property and asserted his own ownership with regard to suit property bearing correct Plot No.40, Out of Khasra No.99/25, Village Palam, New Delhi. It is submitted that defendant No. 1 has no concern with the property of plaintiff i.e. bearing Plot No.41, Block M, measuring 168 sq. yds. out of Khasra No.99/24, Village Palam, New Delhi. It is further submitted that chain of documents filed by plaintiffs, do not make the plantiffs as owner of property in view of judgment of Hon'ble Apex Court in Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana. It is further submitted that even if ownership of plaintiff is not to be considered, the plaintiff was required to prove the identity of property and the fact that the plaintiff was in settled possession of said property, which the plaintiff has not proved. It is submitted that PW-3 Mr. Anil Jain examined on behalf of plaintiff, has himself stated that there are two more properties which bear No. 41. It is further submitted that as SDM has demarcated the suit property on the written order of this Court, Same can be read in evidence, which clearly proves that the correct number and identification of suit property is Plot No.40, Out of Khasra No.99/25, Village Palam, New Delhi. It is further submitted that there is no issue of service of notice regarding the demarcation to plaintiff as order for demarcation was passed in open Court and the notice with regard to demarcation was affixed at the suit property itself. Further, it is submitted that as per report, the representative of plaintiff was present at the suit property, who had refused to sign the report. It is submitted that suit is liable to be dismissed with heavy cost.
During rebuttal arguments, Ld. Counsel for plaintiff has relied CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 44 upon the judgment of Hon'ble Apex Court in Annatulla Sudhakar vs. P. Buchi Readdy (2008) 4 SCC 594 and Kanta Goel vs. B. P. Pathak (1977) 2 SCC 814 to assert that plaintiff is not required to obtain declaration as plaintiffs are in possession of the property and the defendant is a trespasser.
10. Now I shall give my issue-wise findings.
Issue no. (i) and (ii)
(i) Whether the plaintiff is entitled for permanent injunction restraining the defendants from selling the property in question and from dispossessing the plaintiff from the suit property, as shown in RED colour in the site plan, as prayed? OPP
(ii) Whether the plaintiff is entitled to mandatory injunction as prayed?
OPP
(i) The burden of proving these issues was on plaintiff. These issues have been taken together for consideration as both issues are interlinked with each other. In order to discharge the burden of proving these issues, the plaintiff has proved the khatoni/fard Ex. PW-5/1 showing the ownership of previous owners. The plaintiff has also placed on record the chain of documents executed by such previous owner upto the plaintiffs, which shows the identification of property as plot no. 41, M Block, Khasra no. 99/24, Village Palam, Delhi. Apart from the same, the plaintiffs have examined themselves as well as one neighbour Sh Anil Jain as PW-3, to prove their possession on the property in question. A witness was also summoned to prove the original receipt dated 17.04.1989. The defendant has never challenged the ownership of plaintiff with regard to plot no. 41, M Block, Khasra no. 99/24, Village Palam, Delhi, however asserted that he (defendant no. 1) is owner of the suit property, which actually bears Plot no. 40, Khasra no. 99/29, Village Palam, Delhi. The defendant no. 1 has alleged his own CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 45 possession with regard to the suit property.
In this situation, it was necessary for the plaintiff to prove its possession on the property in question and also to clear the clouds on the identification of the property in question as the question of identity has been raised by defendant in its written statement itself. No doubt, plaintiff has tried to prove its ownership over the suit property by proving document Ex. PW-5/1(khatoni) and payment receipt Ex. PW-1/4, deed of agreement Ex PW-1/5, chain of documents Ex. PW-1/6, however, the question of ownership of the plaintiff with regard to plot no. 41, M Block, Khasra no. 99/24, Village Palam, Delhi was not disputed and was also not required to be proved. Though it has also been vehemently argued on behalf of defendant that plaintiff should have filed the suit for declaration and not only for injunction simplicitor, however as neither defendant no. 1 has alleged himself to be owner of plot no. 41, M Block, Khasra no. 99/24, Village Palam, Delhi nor defendant no. 1 had filed his title documents to show that defendant no. 1 is owner of suit property so as to raise actual cloud on the title of plaintiffs, there does not seem to be any necessity for the plaintiff to seek the relief of declaration as well.
The question which remained to be considered by this court is whether plaintiffs have been able to prove their possession as well as identification of the suit property i.e. plot no. 41, M Block, Khasra no. 99/24, Village Palam, Delhi, allegedly owned and possessed by them. There is no doubt that plaintiff has not taken any steps for demarcation of the property in question, by moving appropriate application, during the pendency of present case. Though an application for demarcation was moved on behalf of the defendant no.1 and which was allowed, however the said demarcation report is Ex. D-1W7/A has been disputed on behalf of plaintiffs on the ground that SDM has no authority to conduct the CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 46 demarcation and even otherwise, the plaintiff was not notified by SDM concerned before undertaking the process of demarcation. The plaintiff has rightly relied upon the observation of Hon'ble High Court of Delhi in Nathu Ram (supra), Kamaljeet Bajwa (supra), Novel Trade Links LLP (supra) and observation of Hon'ble High Court of Madras in Ranganathan (supra) where it has been observed by the Hon'ble High Courts that after urbanization, the SDM concerned does not have authority/jurisdiction fordemarcation and appropriate authority for demarcation after urbanization is DDA/MCD. As it has been admitted by D1W8 Sh Ajay Pal Tehsildar that property in question has undergone urbanization, the report of SDM or Tehsildar cannot be considered to be proof of demarcation. For the lack of authority with SDM/Tehsildar for demarcation, the demarcation report Ex. D1W7/A cannot be read into evidence.
In the absence of any proof of demarcation, the court has to see whether plaintiff has been able to discharge the burden of proving his possession and identification of the property in question. Apart from the documents of ownership and oral examination of plaintiffs, plaintiffs have only called Sh Anil Jain as PW-3 to prove their possession. Sh Anil Jain has alleged himself to be next door neighbour of plaintiffs and residing in said house since the date of its purchase by his mother around 10 years back. However Sh Anil Jain has not proved that he is next door neighbour of plaintiffs by proving his identity proof or any other document, which could have shown that PW-3 Sh Anil Jain is residing at M-40, Gali no 11-12, Rajapuri, Delhi. In fact in the affidavit of examination in chief, PW-3 has not mentioned the khasra number of his plot and during his cross examination, he had deposed that his house falls in khasra no. 25, however the suit property falls in khasra no. 24. It is very reasonable to believe that plot no. 40, khasra no. 25, will be CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 47 adjacent to plot no. 41, khasra no. 25. However as PW-3 was alleging himself to be next door neighbour of plaintiffs and alleging himself to be residing in plot no. 40 (the plot number of plaintiff is 41) and at the same time mentioned (during cross examination) different khasra number of his plot from the plot of plaintiff, it was necessary for the PW-3 Sh Anil Jain or by the plaintiff to explain the situation of plots and khasra numbers. However it has not been explained either by PW-3 Sh Anil Jain or by plaintiffs. For these reasons, the oral testimony of PW-3 Sh Anil Jain cannot be considered to be proof of the fact that he is next door neighbour of plaintiffs and the fact that the plaintiffs are in possession of suit property i.e. plot no. 41, M Block, Khasra no. 99/24, Village Palam, Delhi. Apart from the testimonies of PW-1,2 and PW-3, nothing has been brought on record in the form of any documentary proof or testimony of neighbour who could have proved his own possession as well as possession of plaintiffs or any other proof on behalf of plaintiff to discharge the burden of proving that plaintiffs are in possession of suit property as well as its identification and as a result of which, the plaintiffs could not prove their possession as well as identification of suit property. The property in question is surrounded by boundary walls and there exists a room also in the same. Due to the said reasons and due to the fact that the neighbors also reside in vicinity it cannot be said that the suit property is vacant land and its possession goes with title. The same has also not been alleged in pleadings nor submitted during arguments.
It is established law that the initial burden of proof is on plaintiff, and on discharging such burden, the onus of proof shifts to the defendant. In the absence of discharging burden of proof or onus of proof, the case of the party concerned fails. In this regard it is important to refer to following judgments of Hon'ble Apex Court:
CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 48Anil Rishi Vs Gurbaksh Singh in civil Appeal No. 2413 of 2006 dated 02.05.2006.
The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:-
"Sec. 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."
In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be exception thereto. The learned trial Court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.
The fact that the defendant was in a dominant position must, thus, be proved by the plaintiff at the first instance.
Strong reliance has been placed by the High Court in the decision of this Court in Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity & Ors., [AIR 2003 SC 4351]. In that case, the question of burden of proof was gone into after the parties had adduced evidence. It was brought on record that the witnesses whose names appeared in the impugned deed and which was said to have been created to grab the property of the plaintiffs were not in existence. The question as regards oblique motive in execution of the deed of settlement was gone into by the Court. The executant was more than 100 years of age at the time of alleged registration of the deed in question. He was paralytic and CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 49 furthermore his mental and physical condition was not in order. He was also completely bed-ridden and though his left thumb impression was taken, there was no witness who could substantiate that he had put his thumb impression. It was on the aforementioned facts, this Court opined:-
"12 The onus to prove the validity of the deed of settlement was on the defendant No. 1. When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person, in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position"
This Court in arriving at the aforementioned findings referred to Section 111 of the Indian Evidence Act which is in the following terms:-
"Sec. 111. Proof of good faith in transactions where one party is in relation of active confidence. Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence."
But before such a finding is arrived at, the averments as regard alleged fiduciary relationship must be established before a presumption of undue influence against a person in position of active confidence is drawn. The factum of active confidence should also be established.
Section 111 of the Evidence Act will apply when the bona fides of a transaction is in question but not when the real nature thereof is in question. The words `active confidence' indicate that the relationship between the parties must be such that one is bound to protect the interests of the other.
CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 50Thus, point for determination of binding interests or which are the cases which come within the rule of active confidence would vary from case to case. If the plaintiff fails to prove the existence of the fiduciary relationship or the position of active confidence held by the defendant- appellant, the burden would lie on him as he had alleged fraud. The trial Court and the High Court, therefore, in our opinion, cannot be said to be correct in holding that without anything further, the burden of proof would be on the defendant.
Govt. of Goa through the Chief Secretary Vs Maria Julieta D'Souza(D) & Ors. in Civil Appeal No. 722 of 2016 dated 31.01.2024
8. On law, the position is as follows. There is a clear distinction between burden of proof and standard of proof. This distinction is well-known to civil as well as criminal practitioners in common law jurisprudence. What Ms. Ruchira sought to point out is that the documents relied on by the plaintiff did not point out the existence of title at all. She is right to the extent that no single document in itself concludes title in favour of the plaintiff, but this is not an issue of burden of proof. This is a matter relating to the sufficiency of evidence. While inquiring into whether a fact is proved, the sufficiency of evidence is to be seen in the context of standard of proof, which in civil cases is by preponderance of probability. By this test, the High Court has correctly arrived at its conclusion regarding the existence of title in favour of the plaintiff on the basis of the evidence adduced.
As plaintiffs could not discharge the initial burden of prooving their possession ad identification of suit property, the plaintiffs are not entitled to the relief of permanent and mandatory injunction as sought by plaintiff. Both the issues are accordingly decided against the plaintiffs.
(b) Issue no. (iii) and (iv) (iii Whether there is no cause of action in favour of plaintiff and ) against the defendants? OPD (iv Whether the suit is barred, as contended in the preliminary ) objections to the W.S? OPD
(ii) The burden of proving these issues was on defendant. However CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 51 defendant has not brought on record title documents of his own property i.e. plot no. 40, Khasra no. 99/25, Village Palam, Delhi so as to prove that there is cloud on the title of plaintiffs. The demarcation report Ex. D1W8 could also not be read in evidence for reasons explained while deciding issue no. (i) and (ii).
Accordingly, these issues are decided against defendant no. 1.
11. Relief For the reasons mentioned above, the suit of the plaintiff is dismissed. Parties shall bear their own cost.
No order as to costs. Decree sheet be prepared accordingly. File be consigned to the record room after due compliance.
Digitally signed by MAYANK MAYANK MITTAL
Announced in the Open Court MITTAL Date:
2025.10.04
on 04.10.2025 18:13:39 +0530
(Mayank Mittal)
ASCJ cum JSCC cum Guardian Judge
Dwarka Courts: New Delhi
CS SCJ 425534/2016 SHASHI JAIN Vs RAGHUBIR SINGH Page No. 52