Delhi District Court
Arun Agarwala vs Rawat Singh on 3 June, 2024
IN THE COURT OF CIVIL JUDGE-01, WEST, TIS
HAZARI COURTS, DELHI
Presided over by- Sh. Vikas Madaan, DJS
CS SCJ No. : 611725/16
CNR DLWT 030001782009
Date of Institution : 19.09.2009
Date of reservation of judgment : 19.04.2024
Date of pronouncement of Judgment : 03.06.2024
Sh. Arun Agarwala
S/o Sh. S.P. Agarwala
R/o C-1/64, Rajasthali Apartments
Pitampura, Delhi-110034.
.................Plaintiff
Vs.
1. Sh. Rawat Singh
S/o Sh. Bhim Singh
Resident of Village Tikri Kalan, Delhi.
2. Sh. Atma Ram Aggarwal
S/o Sh. Bhim Singh
R/o F-49, Vishal Colony, Nangloi, Delhi.
3. Sh. Deepak Bhasin
S/o Sh. Prem Bhasin
R/o B-134, Naraina Vihar, New Delhi
Also at
C/o M/s Precision Steels
B-104, Phase 1 Block B,
Mayapuri Indl Area, Mayapuri, Delhi-110064
4. Sh. Sanjay Goyal
S/o Shri S.C. Goyal
Resident of A-10, Ashok Vihar
Phase-1, Delhi-110052. Digitally
signed by
VIKAS
....................Defendants VIKAS MADAAN
MADAAN Date:
2024.06.03
17:20:54
1 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 +0530
SUIT FOR MANDATORY INJUNCTION AND
RECOVERY OF POSSESSION
JUDGMENT
A FACTUAL MATRIX
1. Brief facts of the present case are that the plaintiff had purchased a plot of land in Khasra No. 34/23/1 situated in the revenue estate of village Tikri Kalan at Delhi measuring the area of 1 bigha for a consideration of Rs. 25,000/- and sale deed was executed on 07.03.1989 and the entire consideration amount has been duly received by defendant no.1 prior to the execution of sale deed. It is stated that defendant no.1 was the owner of the land measuring 2.14 bigha in Khasra No. 34/23/1 at village Tikri Kalan, Delhi. It is stated that defendant no.1 through defendant no.2 approached plaintiff and his sister, Amita with an offer to sell portion of defendant no.1's land in Khasra No. 34/23/1 at village Tikri Kalan, Delhi. It is further stated that negotiations commenced and an agreement to sell for the land measuring 1 bigha (1.008 Sq. Yards) in Khasra no. 34/23/1 at village Tikri Kalan, Delhi for Rs. 25,000/- was entered into between plaintiff and defendant no.1. It is further stated that plaintiff paid and defendant no.1 received the entire sale consideration of Rs. 25,000/- by demand draft no. 002261 dated 01.03.1988 issued by the Bank of India, Kirti Nagar, Delhi. It is further stated that plaintiff's sister paid and defendant no.1 received the entire sale consideration by demand draft no. 002262 dated 01.03.1988 issued by the Bank of India, Digitally signed by VIKAS VIKAS MADAAN MADAAN Date:
2024.06.03 17:21:05
2 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 +0530 Kirti Nagar, Delhi. It is further stated that defendant no.1 sold out an undivided share (1 bigha) in the land to plaintiff and no demarcated plot with dimensions was given.
2. It is further stated that plaintiff became a co-owner of land in Khasra no. 34/23/1 at village Tikri Kalan, Delhi with his sister Amrita and defendant no.1. It is further stated that defendant no.2 is the henchman of defendant no.1 through whom the deal was made. It is further stated that after purchasing the land, the plaintiff could never be given with the possession of the said land and defendant no.1 kept on delaying to give the physical possession and demarcation of land to the plaintiff on one pretext to another.
3. It is further stated that plaintiff relied upon the words of defendants and was being assured by the defendants that there is no dispute in the land purchased by the plaintiff. It is further stated that in the third week of August, 2005, the plaintiff wanted to sell the property to Sh. Ashok Kumar Jain and made a deal for selling it out, followed by receiving of some amount of money from the said purchaser and the said party enquired from the concerned Tehsildar and found that the land bearing Khasra No. 34/23/1, Village Tikri Kalan is a disputed property as some persons claiming themselves to be the owner and also threatened to create obstruction in the process of possession. It is further stated that on being came to know the dispute nature, defendant no.1 was informed that the land purchased from him was being disputed. Thereafter Digitally signed by VIKAS VIKAS MADAAN MADAAN Date:
3 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 2024.06.03 17:21:42 +0530 the defendant no.1 diredted to plaintiff to contact the defendant no.2, whereas on being contacted defendant no.2, it was assured that they will sort out but till date there is no solution and no possession was given to the plaintiff.
As a result, the deal for sale fizzled out. It is further stated that defendants are in collusion against the plaintiff for cheating and usurping the hard earned money of the plaintiff.
4. It is further stated that defendant no.3 claims to have purchased a land measuring 1 bigha 06 biswas in Khasra No. 34/23/1 by (alleged) sale deed dated 27.05.1988 executed by defendant no.1 in his favour. It is further stated that it is a collusive transaction. It is subsequent to the agreement of sale in favour of plaintiff. It is illegal, null and void and not binding on the plaintiff.
5. It is further stated that defendant no.4 claims execution of the registered sale deed dated 26.09.1980 by defendant no.1 through its attorney Sh. Magtu in his favour. It is further stated that defendant no.3 and defendant no.4 on the basis of said sale deeds, got the land in Khasra NO. 34/23/1 at village Tikri Kalan, Delhi mutated in the land revenue records in their favour.
6. It is further stated that defendant no.1 to 4 hatched a conspiracy to cheat the plaintiff and usurp plaintiff's property. It is further stated that in furtherance of the criminal conspiracy it appears that they created (alleged) Digitally signed by VIKAS sale deeds dated 27.05.1988 and 26.09.1990 in respect of VIKAS MADAAN MADAAN Date:
2024.06.03 17:21:50 4 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 +0530 land in Khasra No. 34/23/1 at village Tikri Kalan, Delhi.
It is further stated that defendant no.1 to 4 played a fraud on the plaintiff to defeat his rights over the suit property.
7. It is further stated that defendant no.1 and 2 own many other lands in the same area. It is further stated that defendant n o.1 and defendant no.2 kept on taking delay- delaying tactics to cheat the plaintiff as the plaintiff gave many visits as well as through attorney and requested for handing over the possession but all in vain.
8. Prayer is made as under :
(a) To direct the defendants to hand over the possession of the land measuring 1 bigha (1,008 Sq. Yards) in Khasra No. 34/23/1 at Village Tikri Kalan, delhi to the plaintiff and if there is no land in the same Khasra then, the defendant will give the possession from the adjoining land of the defendants to the plaintiff.
(b) To declare that the sale deeds dated 27.05.1988 executed by deendant no.1 in favour of defendant no.3 in respect of land in Khasra No. 34/23/1 at village Tikri Kalan, Delhi is illegal, null and void and not binding on the plaintiff.
(c ) To declare that the sale deeds dated 26.09.1990 executed by defendant no.1 through his attorney Sh. Mangtu in favour of defendant no.4 in respect of land in Khasra No.34/23/1 at village Tikri Kalan, Delhi is illegal, null and void and not binding on the plaintiff.
(d) To declare that the mutation carried out the revenue Digitally signed by VIKAS authorities in favour of defendant no.3 and 4 on the basis VIKAS MADAAN MADAAN Date:
2024.06.03 17:21:57 +0530 5 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 of the alleged sale deeds are not binding on the plaintiff.
(e) Pass any such orders
9. Written statement has been filed on behalf of defendant no.1 wherein it is stated that the present suit is not maintainable and is liable to be dismissed with cost as the plaint of the plaintiff is contrary to the plaintiff's own documents. It is further stated that the present suit is not maintainable as the plaint is based on false and frivolous facts. It is further stated that the plaintiff has not come to the Court with clean hands and has suppressed the material facts. It is stated that the defendant no.1 had sold the suit property to plaintiff and executed the necessary documents in favour of plaintiff and handed over the physical vacant possession of the suit property to the plaintiff and the defendant no.1 has no concern with the suit property. It is further stated that plaintiff is harassing the defendant no.1 without any cause or reason. Prayer is made for dismissal of suit.
10.Written statement has been filed on behalf of defendant no.2 to the amended plaint wherein it is stated that the present suit is not maintainable as the same is time barred and is liable to be dismissed with cost. It is stated that the present suit is not maintainable and is liable to be dismissed with cost as the plaint of the plaintiff is contrary to the plaintiff's own documents. It is further stated that the plaintiff has not come to the court with clean hands and suppressed the substantial and material facts from this Digitally signed by court. It is further stated that the suit is not properly VIKAS VIKAS MADAAN MADAAN Date:
2024.06.03 17:22:07 +0530 6 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 valued and appropriate court fees has not been affixed.
Prayer is made for dismissal of suit.
11.Written statement has been filed on behalf of defendant no.3 wherein it is stated that the suit is not maintainable and is liable to be dismissed since the same is beyond the period of limitation as has been prescribed U/s 5 of Limitation Act. The plaintiff has made a categorical admission that the last cause of action arose in third week of August, 2005 whereas the present suit has been filed in September,2009 much beyond the period of limitation and hence the suit cannot be entertained and is thus liable to be dismissed.
12.It is further stated that in plaint it has been alleged that the alleged sale deed was executed on 07.03.1989 between plaintiff and defendatn no.1. Even if it is assumed for the sake of arguments that such alleged sale deed was ever executed, the possession was not handed over to the plaintiff and if any cause of action arose against defendant no.1, it arose in year 1989 when the suit property was not handed over. Till 2009, the plaintiff did not file any suit for declaration or for operation of the sale deed. It has been admitted by the plaintiff that he was never in the possession of the property, therefore the cause of action for declaration, if any, arose in year 1989 and since the suit has been filed in year 2009 the same is time barred and is liable to be dismissed on this ground alone. It is further stated that no notice has ever been received from the Digitally plaintiff by the defendant no.3 Deepak Bhasin with respect signed by VIKAS VIKAS MADAAN MADAAN Date:
2024.06.03 7 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 17:22:19 +0530 to the said suit property.
13.It is further stated that the present suit has been filed by the plaintiff in collusion with defendant no.1 although the plaintiff has claimed that the property was not handed over to him at the time of execution of alleged sale deed dated 07.03.1989. There is an admission on record that sale deed dated 27.05.1988 was executed between the defndant no. 3 and defendant no.1 on 27.05.1988 and the same was registered on 07.06.1988, even then the defendant no.1 has allegedly claimed to have sold the property a year later to the plaintiff vide alleged sale deed dated 07.03.1989. There was no occasion for defendant no.1 to admit the subsequent sale deed 07.03.1989 to the plaintiff.
14.It is further stated that it is an admitted position that defendant no.3 is the owner and in possession of property at Khasra No. 34/23/1, Village Tikri Kalan, Delhi by virtue of a sale deed dated 27.05.1988 and the same was registered on 07.06.1988 and the sale deed was executed between Sh. Deepak Bhasin and defendant no.1 which was much prior to the alleged sale deed put on record by the plaintiff. Further Sh. Deepak Bhasin has been in possession and occupation of the said property since 27.5.1988 and has been paying taxes and other incidental expenses.
15. It is further stated that the suit is liable to be dismissed as the same is undervalued and no proper court fee has been paid on the relief claimed. It is submitted that no Digitally signed by VIKAS VIKAS MADAAN MADAAN Date:
2024.06.03 8 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 17:22:26 +0530 assurance with respect to land belonging to defendant no. 3 can be given by defendant no.1 or defendant no.2 therefore the averment made by plaintiff in para 4 of plaint are false and hence denied. It is submitted that plaintiff cannot transfer a better title than what he has. Since the plaintiff did not have any right in the property. The story that he wanted to sell the land allegedly bought vide sale deed dated 07.03.1989 is false and concocted. In rest of the reply the averments made in plaint are denied and prayer is made for dismissal of suit.
16.Written statement has been filed on behalf of defendant no.4 wherein it is stated that admittedly suit land was purchased on 07.03.1989 from defendant no.1 by plaintiff. It is further stated that the possession was not transferred to the plaintiff by defendant no.1. It is further stated that possession was promised to be handed over but it was never given and defendants kept on delaying giving of possession. It is further stated that suit for possession could have been filed within 12 years under the general law, though suit has been filed after a gap of 19 years, so the suit is barred by limitation and is liable to be dismissed only on this ground.
17.It is further stated that this court has no jurisdiction to try and entertain the present suit. It is further stated that the land is governed by the provisions of Delhi Land Reforms Act, 1954. It is further stated that under the said Act, a person who is owner/bhoomidar of the proeprty, can seek Digitally signed by VIKAS possession under Section 84 of the Delhi Land Reforms VIKAS MADAAN MADAAN Date:
2024.06.03 17:22:32 +0530 9 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 Act, 1954 from the person who is in unauthorized possession of the suit property. It is further stated that jurisdiction to entertain such petition/suit lies with the Revenue Assistant and jurisdiction of civil court is barred U/s 185 of Delhi Land Reforms Act, 1954 to entertain any suit or proceedings in respect of subject matter which can be decided by the revenue authorities.
18.It is further stated that the suit is not maintainable in the present form and suffers from non-joinder of necessary parties. It is further submitted that though the land stands recorded in the defendant but he never claimed possession nor ever remained in physical possession of the said land. The fact is that one Sh. Mangtu was attorney holder in respect of suit land on behalf of Sh. Rawat singh, present defendant no.1 and also in respect of land bearing khasra no. 34/20 on behalf of recorded owners Sh. Rakesh, Sh. Mukesh and Sh. Mahak Singh all sons of Sh. Charan Singh. It is further stated that defendant no.4 negotiated sale of khasra no. 34/20 and identified possession of the said khasra number on the spot through Sh. Mangtu. All the negotiations with Sh. Mangtu were in respect of Khasra No. 34/20 which was promised to be transferred to defendant no.4, however said Sh. Mangtu played a fraud by incorporating Khasra No. 34/23/1 in the sale deed presented before sub-registrar instead of correct Khasra No.34/20. In fact sale deed was drafted in respect of Khasra No. 34/20 and was presented in the same manner, however after the sale deed was presented, name of owner and khasra number were changed which is apparent from Digitally signed by VIKAS VIKAS MADAAN MADAAN Date:
10 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 2024.06.03 17:22:42 +0530 the perusal of sale deed also. It is further stated that since fraud was played by Sh. Mangtu by incorporating wrong khasra number in the sale deed and agreed to sell different khasra number, therefore, the defendant no.4 was apprehending of loosing the amount paid to said Sh.
Mangtu for purchase of Khasra No. 34/20. It is further stated that under the fear of loosing the amount paid to Sh. Mangtu, defedtn no.4 wanted to get the said land mutated on the basis of sale deed wrongly executed in respect of khasra no.34/23/1 as a mark of security and this was the assurance of Sh. Mangtu that till sale deed in respect of Khasra No.34/20 is executed, mutation will remain in defendant no.4 in respect of Khasra no.34/23/1 though defendant no.4 never intended to get said loand or to be become owner thereof. It is further stated that Sh. Mangtu did not come true to his this promise also and never executed the sale deed in respect of Khasra No.34/20 which is still under the possession of the defendant no.4, so it is within the knowledge of plaintiff that for the last more than 20 years, the defendant no.4 never claimed possession of Khasra no. 34/23/1 and defendant no.4 has no objection if mutation standing in his name is cancelled or withdrawn. It is further stated that when defendant no.4 is neither claiming possession nor ownership in respect of suit property, the present suit for mere possession cannot be maintained.
19.Replication has been filed by the plaintiff wherein the averments made in the plaint are reiterated and contentions raised in the W.S are denied. Digitally signed by VIKAS VIKAS MADAAN MADAAN Date:
2024.06.03 11 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 17:22:51 +0530
20.Vide Order dated 25.05.2010, the following issues were framed by Ld. Predecessor of this Court :
(1) Whether the suit of the plaintiff is barred by time ? OPD (2) Whether the suit of the plaintiff is bad for mis joinder and non joinder to the necessary parties ? OPD 1 (3) Whether the suit of the plaintiff is not maintainable in its present form ? OPD 1 (4) Whether the plaintiff is entitled to a decree for possession as prayed for ? OPP (5) Relief.
21. Perusal of Order dated 02.06.2018 of Ld. Predecessor of this Court, shows that separate statements of Ld. counsel for plaintiff as well as Ld. counsel for defendants were recorded to the effect that affidavit of PW-1 Sh. Som Prakash Agarwala recorded in connected case pending between the same parties i.e. CS SCJ No. 611724/16 titled as "Ameeta Aggarwal Vs. Rawat Singh & Ors.' be adopted in the present case.
B. PLAINTIFF'S EVIDENCE
22. In order to prove his case plaintiff has examined Sh. Som Prakash Agarwala as PW-1 who has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 1/A and has Digitally relied upon following documents : signed by VIKAS VIKAS MADAAN MADAAN Date:
2024.06.03 17:22:58 +0530 12 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 Sr. Details of documents Exhibits No. 1 Sale Deed dated 07.03.1989 Ex. PW 1/1 (OSR)
2. Copy of bayana receipt dated Ex. PW 1/ 2 (OSR) 22.08.2005
3. Copy of General Power of Attorney in Ex.PW1/3 favour of plaintiff dated 19.03.2007 (OSR)
23.Besides PW-1, plaintiff has examined himself as PW-2 who has tendered his affidavit as PW 2/A and has relied upon the following documents :
Sr. Details of documents Exhibits
No.
1 Sale Deed dated 07.03.1989 Ex. PW
1/1 (OSR)
2. Copy of bayana receipt dated Ex. PW 1/
2 (OSR)
22.08.2005
24. It is pertinent to note that common evidence has been led in the present case as well as in connected case bearing CS SCJ NO. 11724/16.
25.Both the witnesses were cross-examined by Ld. counsel for defendant. Thereafter vide statement made by Ld. counsel for plaintiff PE was closed and the matter was listed for DE.
Digitally
signed by
VIKAS
C DEFENCE EVIDENCE VIKAS MADAAN
MADAAN Date:
2024.06.03
17:23:05
+0530
13 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16
26.In defendant evidence, defendant no.3 has examined Sh.
Deepak Bhasin as D3W1 who has tendered in evidence his affidavit as D3W1/A and has relied upon the following documents :
Sr. Details of documents Exhibits
No.
1 Sale Deed Ex.
D3W1/1
(OSR)
2. Copy of Khasra Khatoni Mark A
3 Copy of Khasra of Khatoni no. 34/22 Ex.
D3W1/3
and 23/1
(OSR)
27.Besides himself, defendant no.3 has examined Sh. Sevajit, Record Attendant, from the department of Delhi Archieves, 18 A, Satsang Vihar Marg, Spl. Institutional Area, New Delhi as D3W2 who had brought the summoned record i.e. Sale deed dated 27.05.1988 which was registered on 07.06.1988 as serial no. 9872 in book no. 1 Volume no. 5701 being at page no. 104 to 106. The said document was already exhibited as D3W1/1.
28.Defendant no. 3 has also examined Sh. Gynander Rana, Patwari (Field Inspector), from the office of Revenue Department, SDM, Punjabi Bagh, District West as D3W3 who had brought the summoned record i.e. Khasra Khatoni of khasra No. 34/22/1 & 23/1 at village Tikri Kalan, Delhi , bearing name of Khatedar as Deepak Bhasin. Copy of same is already exhibited as D3W1/3. Copy of same Digitally signed by VIKAS 14 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 VIKAS MADAAN MADAAN Date:
2024.06.03 17:23:15 +0530 was exhibited as Ex. D3W3/1 ( OSR).
29.Statement of Sh. Manish, Kanoongo, Record Room, SDM, Najafgarh was recorded to the effect that no mutation/missal number and date of order is mentioned in the summons, hence the same could not be produced.
30.Thereafter vide separate statements made by Ld. counsel for defendant no.2 and counsel for defendant no.3, DE was closed.
31.I have heard final arguments and perused the record.
D FINDINGS My issue wise findings are as under:ISSUE NO. 1 and 4
I. Whether the plaintiff is entitled for decree of possession of suit property as prayed for? OPP IV. Whether the suit is barred by limitation? OPD-3 Both the aforementioned issues are taken up together since common question of law and facts are involved.
32.Plaintiff is claiming the possession of one bigha of land out of total land of two bighas and fourteen biswa (2.14 bigha) situated in Khasra No. 34/23/1 at village Tikri Kalan, Delhi. It is averred by the plaintiff that he had purchased the aforementioned property from the defendant Digitally signed by VIKAS VIKAS MADAAN MADAAN Date:
2024.06.03
15 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 17:23:22 +0530 no. 1 vide a registered sale deed dated 07.03.1989. It is further averred that possession of the said land was never delivered to the plaintiff and defendant no. 1 kept on delaying the delivery of the physical possession and demarcation of the land to the plaintiff. It is further averred that plaintiff is entitled to get the possession of the land being a lawful owner.
33.Per contra, it is argued by the defendant no. 3 that the suit of the plaintiff is time barred since the cause of action to file the present suit accrued in the year 1989 only but the present suit was filed in the year 2009, that is after the expiry of prescribed period of twelve years. It is further argued by defendant no. 3 that he has been in the possession of property measuring one bigha and six biswa (1.06 bigha) situated in Khasra No. 34/23/1 at village Tikri Kalan, Delhi which was purchased vide sale deed bearing no. 9872 in book no. 1 volume 5701 at page no. 104 to 106 dated 07.06.1988. It is further argued by defendant no. 3 that sale deed registered in his favour was prior in time and since 27.05.1988, he has been in possession and occupation of the said property and has been paying taxes and other incidental expenses.
COURT'S OBSERVATION
34.Plaintiff is claiming the possession of the land situated in kharsa no. 34/23/1 on the basis of his title. Thus, in order to get the possession, the plaintiff has to prove the following ingredients: Digitally signed by VIKAS VIKAS MADAAN MADAAN Date:
16 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 2024.06.03 17:23:29 +0530 a. The suit property is properly identified and ascertained, and b. Plaintiff is the owner of the suit property.
The suit property is properly identified and ascertained:
35.At this stage, it is relevant to note that plaintiff has averred in the plaint that land sold to him was not demarcated and he became a co-owner of parcel of land along with his sister and defendant no. 1. Moreover, along with the present suit, no site plan or map or aks shijra was filed by the plaintiff in order to ascertain of which parcel of land in Khasra no. 34/23/1, plaintiff is seeking recovery of. In other words, the land of the plaintiff is not earmarked in any property documents filed by him. Similarly, no details qua boundaries of property were filed by the plaintiff. The plaintiff has made absolutely no mention of any identification mark or description sufficient to identify the suit property. Neither is there any mention of the boundaries of the suit property nor is there any description of what areas/properties surround the suit property in all the four directions. In addition, there are no geographical coordinates or any other identification marks mentioned in the plaint on the basis of which the suit property can be identified. All that has been stated is the total area of the land in Khasra no. 34/23/1 is 2.14 bigha but it is conspicuously silent on where exactly within this larger area it is located. Even the dimensions i.e. the length and breadth of the land purchased have not been stated. Thus, Digitally in the absence of any boundaries or any other description signed by VIKAS VIKAS MADAAN MADAAN Date:
2024.06.03 17:23:35 17 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 +0530 on the basis of which the suit property can be identified and located, the mandatory requirement of order VII Rule 3 CPC has not been met.
36.In a suit where the subject matter is immovable property, it is mandatory that the same should be properly identified. This requirement stems from Order VII Rule 3 CPC as per which in such a suit, the plaint must contain a description of the property sufficient to identify it, and in case such property can be identified by boundaries or by numbers in a record of settlement or survey, the plaint should specify the boundaries or the numbers. In case the description of the suit property is not sufficient to identify it or if the same is vague, the suit of the plaintiff is liable to be dismissed. Reference in this regard may be made to Bandhu Das v. Uttam Charan Pattnaik AIR 2007 Ori 24 wherein with respect to Order VII Rule 3 it was held:
"A bare reading of the above provision makes it is crystal clear that what exactly the land or the area over which the dispute exists is a question which goes into the root of the matter relating to subsistence of the case. In absence of such description in the plaint or supply of the map by annexing the same to the plaint and the evidence to the above effect, no Court would pass a decree, as such a decree would be in executable or would be rendered otiose. Even if the Court finds that the plaintiff had title and Digitally signed by VIKAS possession in respect of the suit land, in VIKAS MADAAN MADAAN Date:
2024.06.03 17:23:44 +0530 18 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 absence of proper description, as mentioned in Order 7 Rule 3, C.P.C., the decree cannot be executed."
37.The requirement that property forming the subject matter of suit should be properly identifiable is based both in law and logic. The Court cannot give a decree with respect to an unidentifiable property as the same would make it uncertain and ambiguous, which is not permissible in law and is also against common logic. A decree of the court must be absolutely clear and unequivocal so that it fixes rights and liabilities of parties without any ambiguity and so that it can be executed. A vague decree or a decree which does not exactly and clear state the subject matter is not capable of execution at all.
38.Considering the aforementioned discussion, this court is of the firm opinion that the suit property is not identifiable on the basis of the pleadings or the evidence and since the property is unidentifiable, the decree of possession cannot be passed in favour of the plaintiff.
Plaintiff is the owner of the suit property
39.In order to prove his ownership, plaintiff has relied upon the sale deed vide Ex. PW1/1. It is pertinent to note that it is averred by the plaintiff that he along with his sister had purchased the suit land from defendant no. 1 and both of them purchased 1 bigha land each out of the total land of 2.14 bigha situated in Khasra no. 34/23/1 vide sale deeds dated 07.03.1989. On the other hand, defendant no. 3 had Digitally signed by VIKAS VIKAS MADAAN MADAAN Date:
19 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 2024.06.03 17:23:49 +0530 also argued that he had purchased land measuring 1.06 bigha from defendant no. 1 vide sale deed Ex. D3W1/1 and his sale deed was prior in time i.e. it was executed on 27.05.1988.
40.In addition, plaintiff has also challenged the genuineness of the sale deed executed in favour of defendant no. 3 on the ground that (a) no consideration was paid by him to defendant no. 1, (b) defendant no. 1 stated in his written statement stated that he never sold his land situated in khasra no. 34/23/1 to anyone except the plaintiff and his sister namely Ameeta Aggarwal, (c) defendant no. 3 after acting in connivance with defendant no. 1 and 2, fraudulently got transferred the land in khasra no. 34/23/1 in his favour in order to defraud the plaintiff and his sister as the agreement to sell between plaintiff and his sister on one hand and defendant no. 1 on the other hand, was executed prior in time i.e before the execution of sale deed in favour of the defendant no. 3 in respect of land situated in khasra no. 34/23/1 and (d) there were no signatures of defendant no. 3 upon sale deed vide Ex. D3W1/1 (OSR).
41.This Court does not find any force in the said arguments of the plaintiff. As defendant no. 1 has never stepped into witness box and never participated in the trial, thus, in absentia of any cogent evidence and by merely referring to his W.S, conclusion cannot be drawn that he never sold any property to defendant no. 3 and that no consideration Digitally was paid by defendant no. 3 to defendant no. 1. Moreover, signed by VIKAS VIKAS MADAAN section 50 of the Registration Act, 1908 gives preference MADAAN Date:
2024.06.03 17:23:56 +0530 20 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 to registered documents over unregistered documents. As the sale deed of defendant no. 3 was registered prior in time vis-à-vis that of plaintiff, therefore, it would get preference not only over the unregistered agreement to sell of the plaintiff qua property in khasra no. 34/23/1 but also over the sale deed in favour of plaintiff. Similalrly, section 48 of the Transfer of Property Act, 1882 (hereinafter referred to as 'TPA', for brevity) gives preference to the sale deed executed in favour defendant no. 3 and thus, protecting his title by virtue of his sale deed over the right of the plaintiff. This Section is based on the maxim, qui prior est tempore potior est jure, which means that one who is first in time is better in law. The transferor cannot prejudice the right of the transferee by any subsequent dealing with the property. Defendant no. 3 has proved that sale deed in his favour vide Ex. D3W1/1 was registered prior in time to that of the plaintiff and its registration has been proved by defence witness D3W2. Thus, defendant no. 3 has the protection of section 48 of the TPA in his favour and his right in the suit land has priority over the rights of the plaintiff.
42.Since the total land in Khasra number 34/23/1 was 2.14 bigha and defendant number 3 has already proved that out of the total area, 1.06 bigha belongs to him, the claim of the plaintiff and her brother that they have title over 1 bigha land each cannot be sustained as otherwise, the total area would exceed to more than 2.14 bigha of land.
Defendant no.1 could not have transferred 2 bigha land to plaintiff and his sister because the total area left for VIKAS MADAAN Digitally signed by 21 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 VIKAS MADAAN Date: 2024.06.03 17:24:05 +0530 transfer was less than 2 bigha (after removing the share of defendant no. 3 in khasra no. 34/23/1). Moreover, both the sale deed in favour of plaintiff and his sister were executed on the same date. Since, no evidence was led by the plaintiff to prove that his title is in precedence as against his sister in respect of one bigha land, the perfect title of the plaintiff over one bigha land out of remaining land in khasra no. 34/23/1 cannot be ascertained. Consequently, as plaintiff has failed to prove his perfect title over the suit land and since the suit land is unidentifiable, the decree of possession in respect of one bigha land in khasra no. 34/23/1 cannot be passed in favour of the plaintiff.
Whether the suit is barred by limitation
43.It is averred by the defendant no. 3 that plaintiff was not in possession since the date of purchase of the land in khasra no. 34/23/1 and the land was purchased in the year 1988, and as the present suit was filed in the year 2009, it is barred by law of limitation.
44.On the other hand, it is averred by the plaintiff that defendant no.1 did not place them in the possession of the suit property since the date of purchase of one bigha land.
45.It is apposite to mention that the sale deed was executed in favour of the plaintiff on 07.03.1989. It is averred by the plaintiff that the copy of the sale deed was provided to them in the year 1992 only. It is interesting to note that Digitally signed by plaintiff has mentioned in para 3 of his amended plaint that VIKAS VIKAS MADAAN MADAAN Date:
2024.06.03 17:24:13 22 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 +0530 defendant no. 1 never gave the possession of the land and he kept on delaying to give the physical possession and demarcation of the land to the plaintiff on one pretext to another. This averment made by the plaintiff in the amended plaint itself implies that the possession of defendant no. 1 upon one bigha land had become adverse as against the interest of plaintiff since the date of purchase of one bigha land. It is averred by the plaintiff that they came to know in the year 2005 that the land situated in khasra No. 34/23/1 was in dispute. However, perusal of the aforementioned averments shows that the dispute with regard to the possession of land has been existing from the date it was purchased by the plaintiff. Article 65 to Schedule I of Limitation Act, 1963 (hereinafter referred to as 'The Act', for brevity) provides that a suit for recovery of possession shall be filed within twelve years from the date when the possession of the defendant become adverse to the plaintiff. In the instant case, in the opinion of this Court, the possession of defendant no. 1 became adverse against the plaintiff when the land was purchased by the plaintiff on 07.03.1989. It is nowhere mentioned in the plaint and evidence affidavit of PW-1 and PW-2 that possession of defendant no.1 was permissive possession from 1989 rather it is mentioned by the plaintiff that despite request made by the plaintiff, defendant no. 1 has failed to deliver the possession to the plaintiff. Similarly, plaint is conspicuously silent about the nature of possession of land from 1992 to 2005. Similarly, the conduct of the plaintiff in not carrying out the mutation of Digitally signed by VIKAS land in his name also shows the lax attitude adopted by the VIKAS MADAAN MADAAN Date:
2024.06.03 17:24:20 +0530 23 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 plaintiff. Law must assist those who are vigilant of their rights and not to whom who slumber upon their right.
Since the possession of the defendants has been hostile to the interest of the plaintiff and as plaintiff himself stated that they were trying to get the possession of the land, this Court is of the opinion that cause of action had been accrued in favour of the plaintiff and against the defendants from 08.03.1989 itself. Therefore, period of limitation of twelve years had started reckoning from 08.03.1989. The present suit was filed by the plaintiff in the year 2009 that is almost after the expiry of 19 years and therefore, the present suit of the plaintiff is hopelessly barred by the law of limitation. It is also averred by the plaintiff that they came to know about the sale deed in the year 1992. Even if it would be assumed that plaintiff came to know about the contents of sale deed in the year 1992, still the limitation period for filing the same has expired and the present suit of the plaintiff is barred. Section 3 of the Act provides that any suit filed beyond the period prescribed period is liable to be dismissed.
46.Keeping in view the aforesaid discussion, Issue no. I and IV stands decided against the plaintiff and in favour of the defendant no. 3.
47.ISSUE NO. II, III & V Digitally II. Whether the plaintiff is entitled for decree, declaring the signed by VIKAS VIKAS MADAAN sale deed dated 27.05.1988, executed by defendant no. 1 in MADAAN Date:
2024.06.03 17:24:27 +0530 24 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 favour of defendant no. 3 in respect of suit property in Khasra No. 34/23/1 at village Tikri Kalan, Delhi as null and void? OPP III. Whether the plaintiff is entitled for decree, declaring the sale deed dated 26.09.1990, executed by defendant no. 1 in favour of defendant no. 4 in respect of suit property in Khasra No. 34/23/1 at village Tikri Kalan, Delhi as null and void? OPP V. Whether the plaintiff is entitled to declaration that mutation carried out in revenue records in favour of defendant no. 3 and 4 on the basis of alleged sale deeds is not binding on the plaintiff. OPP All the aforementioned issues are taken up together since common question of law and facts are involved.
48.The Hon'ble Apex Court in one of its latest judgments titled as S. Shivraj Reddy (died) through his LRs and anr Vs. Raghuraj Reddy and anr, 2024 Livelaw (SC) 411, has, interalia, observed that:
"Thus, it is a settled law that even if the plea of limitation is not set up as a defence, the Court has to dismiss the suit if it is barred by limitation."
49.As per Article 58 of the Schedule I of The Act, the limitation period for filing the suit seeking any other declaration is three years from the date when the right to sue first accrues. Digitally signed by VIKAS VIKAS MADAAN MADAAN Date:
2024.06.03 17:24:34 +0530 25 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16
50.In his cross-examination dated 10.01.2018, it was admitted by the PW-1 that he was aware that name of Sh. Sanjay Goyal (defendant no. 4) was recorded as owner of the suit land in the record at the time of filing of the present suit. Here, it is also pertinent to refer to order dated 16.12.2015, passed by the Ld. Predecessor of this Court, whereby the application seeking amendment in the plaint was allowed and in the said order, it was also observed that the relief of the declaration sought by the plaintiff was barred by law of limitation. Since, PW-1 has categorically admitted in his deposition that he was aware about the fact that Sh. Sanjay Goyal was recorded as owner in the record at the time of filing of the suit and the plaint was originally filed by the plaintiff in the year 2009 but despite having such knowledge, the plaintiff did not bother to incorporate the said fact at the time of filing of the original plaint and therefore, it cast a shadow of doubt over the conduct of the plaintiff and it can be stated that plaintiff has deliberately concealed the said fact at the time of filing the present suit and has not approached the Court with clean hands. Moreover, the relief of declaration sought by the plaintiff against the defendant no. is time barred since the plaintiff already knew about his ownership at the time of filing of the suit but still he incorporated the relief of declaration in the original suit in the by moving an application on 01.06.2015 only and as discussed above, as per Article 58 of Schedule I of The Act, the time period of filing the suit was 3 years and the present prayer was incorporated after the passing of limitation period and thus, it is time barred Digitally signed by 26 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 VIKAS VIKAS MADAAN MADAAN Date:
2024.06.03 17:24:40 +0530 and therefore, this relief cannot be granted to the plaintiff as against defendant no. 4.
51.Relief of declaration sought by the plaintiff against defendant no. 3 is also time barred since the plaintiff came to know about the said sale deed in favour of the defendant in the year 22.11.2011 but still he incorporated the relief of declaration in the original suit in the by moving an application on 01.06.2015 and as discussed above, as per Article 58 of Schedule I of The Act, the time period of filing the suit was 3 years and the present prayer was incorporated after the passing of limitation period and thus, it is time barred. therefore, this relief cannot be granted to the plaintiff as against defendant no. 3.
52.And for the similar reasons as mentioned in the aforementioned paras, issue no. V also stands decided against the plaintiff as it is time barred.
53.Thus, on the basis of above discussion, the aforesaid issues stand decided against the plaintiff and in favour of the defendant.
54.ISSUE NO. VI VI. Whether the present suit is barred by Section 81, 83 and 85 of Delhi Land Reforms Act? OPD The onus to prove the aforesaid issue is upon the defendants.
55.It is himself admitted by DW-3 during his cross-
Digitally signed by 27 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16 VIKAS VIKAS MADAAN MADAAN Date:
2024.06.03 17:24:46 +0530 examination that suit property existed in the abadi area and the property is partly constructed, therefore, the property situated in the abadi cannot be referred to as a vacant land and thus, provisions of Delhi Land Reforms Act, 1954 shall not apply.
Consequently, this issue stands decided against the defendants RELIEF.
56.In view of the findings and observations given on Issue no.
I to VI, suit of the plaintiff stands dismissed. No order as to costs.
Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Digitally
signed by
VIKAS
VIKAS MADAAN
MADAAN Date:
2024.06.03
PRONOUNCED IN THE OPEN 17:24:55
+0530
COURT TODAY 03.06.2024
Note: This judgment contains 28 (VIKAS MADAAN)
CIVIL JUDGE-01,
pages and each page is signed by WEST, TIS HAZARI
the under signed. COURTS, DELHI
28 of 28 Arun Agarwala Vs. Rawat Singh CS SCJ No. 611725/16