Delhi District Court
Sh. Babu Singh vs Sh. Pradeep Kumar on 10 July, 2018
New RCA No. 141/18 dated 10.07.2018
Old RCA No. 07/17
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IN THE COURT OF MS. VANDANA,
SCJ CUM RC (NORTH), ROHINI COURTS, DELHI.
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In the matter of :-
1. SH. BABU SINGH
S/o Sh. Ghisa Singh
2. SH. JAI SINGH MEENA
S/o late Sh. Hanuman Sahai
Both R/o Village Narayanpur
Tehsil-Thana Gazi
District: Alwar (Rajasthan) ........Appellants
Versus
SH. PRADEEP KUMAR
S/o Sh. Manohar Lal
R/o D-321, Jahangir Puri,
Delhi-110042
........Respondent
ORDER /JUDGMENT
1. New RCA No. : 141/18
2. Under section : RCA
3. Date of Institution : 14.12.2016
4. Date of final order : 10.07.2018
5. Final order : Dismissed _______________________________________________________________________________________________________________________ Babu Singh V Pradeep Kumar page no. 1/6 New RCA No. 141/18 dated 10.07.2018 Old RCA No. 07/17 This is an appeal against the judgment 28.11.2016 passed by Ms. Sonam Singh, Ld. Civil Judge, 05, Central District, Tis Hazari, courts Delhi, whereby the suit no. 997349/16 for permanent injunction filed by Plaintiff Sh.
Pradeep Kumar / respondent herein was decreed.
1. BRIEF FACTS 1.1 The respondent herein (plaintiff in CS No. 97349/16) filed a suit for permanent injunction against the appellant herein (Defendant in CS No. 97349/16) for restraining the appellant from taking forceful possession of the suit property bearing no. J-65, Jahangir Puri, Delhi-110033 claiming to be the rightful owner and in possession of the suit property having purchased the same from Sh. Arvind. The defence of the appellant that after the death of original allottee namely Sh. Jagdish (brother of appellant no. 1), died unmarried leaving behind the appellant no. 1 and other legal heirs. It was further submitted that the other LRs have relinquished their rights in favour of appellant no. 1. The appellant no. 1 has already filed the suit for declaration and permanent injunction in the year 2006 with respect to the suit property against the respondent herein and Sh. Arvind Kumar (erstwhile owner as alleged by the respondent) which is still pending. It was also submitted by the appellant that the respondent is not in the possession of the suit property.
2. Ground of appeal:-
a) The Ld. Trial court has failed to consider the admission of the respondent that he is not in possession of the suit property ;
b) The Ld. Trial court did not appreciate the fact that appellant has already filed a suit for declaration and permanent injunction which is still _______________________________________________________________________________________________________________________ Babu Singh V Pradeep Kumar page no. 2/6 New RCA No. 141/18 dated 10.07.2018 Old RCA No. 07/17 pending ;
c) The Ld. Trial court has wrongly considered the local commissioner report ;
3. On the basis of the above objections, the prayer has been made to set aside / dismiss the judgment dated 28.11.2016 passed by the Ld. Civil Judge, Central, Tis Hazari.
4. Vide detailed reply, the grounds mentioned for filing the present appeal were refuted. It was submitted that the respondent herein has purchased the property i.e. suit property bearing no. J-65, Jahangir Puri, Delhi- 110033 for consideration through legally executed documents dated 24.02.2004 from Sh. Arvind Kumar. It was submitted that the, Ld. Trial court has rightly made her observations on all the issues, hence the present appeal deserves dismissal.
5. Arguments heard. Trial court record perused.
6. The appellant has vehemently argued regarding the local commissioner's report submitting that it was the report which was prepared in connivance with the respondent. Now the important point here is that no objections were filed by the appellant herein regarding the said local commissioner's report at any point of time during the trial. The Ld. Trial court has rightly observed that, "it is pertinent to note that as per the report of Ld. Local Commissioner, it was concluded by him that "the plaintif has the possession of the premises. Though the Ld. Local Commissioner was not examined as a witness, yet in view of the settled law that in a case, where no objections have been filed to the report of the local commissioner, it can be read in evidence without examination of the Local Commissioner (same was held by the Hon'ble Delhi High Court in the case of Kenneth Loyal @ Manmohan Singh _______________________________________________________________________________________________________________________ Babu Singh V Pradeep Kumar page no. 3/6 New RCA No. 141/18 dated 10.07.2018 Old RCA No. 07/17 Loyal v. Sh. Vipin Vinod Diwan 2011 (123) DRJ 368). The deposition of DW1, the defendant no. 1 in his cross-examination is relevant, wherein he has stated that : "It is correct that I have not filed any objections to the LC report." In view of the settled law, the position is the same even in the present case, since no objections have been filed by the defendants to the report of the Ld. Local Commissioner, the report is read in evidence and the same has gone unrebutted and stands proved. Also, considering the fact that a local commissioner is an officer of the court, his report cannot be said to be unbelievable".
7. It was further argued that the Ld. Trial court did not appreciate the fact that appellant has already filed a suit for declaration and permanent injunction which is still pending. The suit against which the appeal has been preferred is a suit only for permanent injunction restraining the appellant / defendant from taking the forceful possession of the suit property. Respondent relied upon the GPA (registered), will, receipt, agreement to sell and purchase. He also filed the will and receipt along with possession slip executed by late Sh. Jagidish in favour of Sh. Arvind Kumar from whom the respondent has purchased the suit property. On the other hand, the appellant relied upon one relinquishment deed executed by his brothers Makhtul Singh and Bodhu Singh on 16.05.2006 but reliability of the said document is questionable as admittedly (admitted by DW-3) the suit property was not mutated in the name of Makhtul Singh and Bodhu Singh on 16.05.2006 when the relinquishment deed Ex. DW-2/1 was executed. The suit for declaration as submitted by the appellant was filed in the year 2006, though the appellant never moved any application for transferring of both the cases in one court. He also did not mention about any interim order in that very suit in favour of the appellant herein. Moreover, the suit filed by the appellant is for declaration and for injunction though, by way of the present suit the respondent had only sought the protection of possession of the suit property.
_______________________________________________________________________________________________________________________ Babu Singh V Pradeep Kumar page no. 4/6 New RCA No. 141/18 dated 10.07.2018 Old RCA No. 07/17
8. No doubt, in view of the observations made in Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana 2012(1) SCC 656 , the documents relied upon by the respondent do not convey valid title of the property, but, it is also relevant to note that the suit is interse between a person who derives his rights from the person who got his rights from the original allottee vis a vis a person without having any document with respect to his rights interest in the suit property. Definitely after payment of consideration and execution of the said documents atleast an interest is transferred in favour of the respondent, which can be made the cause of action for seeking the relief of possession or upon which respondent can seek ejectment. Needless to say that the adversary of the respondent is not the original allottee or the DDA.
9. A suit for possession can be based on better possessory rights and not absolute possessory rights i.e. title. In all possibilities respondent has a better case than the appellant.
10. It was further argued by the counsel for the appellant that the respondent has himself admitted that he is not in possession of the suit property which has been overlooked by the Ld. Trial court. In response to this, counsel for the respondent submits that nowhere in the trial court record the respondent has admitted that he has not been residing in the suit premises. On the contrary, perusal of the trial court record makes it evident that the appellant / DW-3 has categorically admitted in his cross-examination that he used to visit the suit property after the death of his brother namely Sh. Jagdish but he never resided in the same. Apart from the above, not even a single document was filed by the appellant to show his possession over the suit premises. The local commissioner's report also falls in favour of the respondent _______________________________________________________________________________________________________________________ Babu Singh V Pradeep Kumar page no. 5/6 New RCA No. 141/18 dated 10.07.2018 Old RCA No. 07/17
11. In view of the above, the appeal stands dismissed.
12. One copy of this order be kept in the TCR, which be sent back to the Trial Court.
13. The appeal file be consigned to record room after due compliance.
Announced in the Open Court on 10.07.2018 (VANDANA) SCJ-cum-RC (North) Rohini Courts, Delhi/10.07.2018 _______________________________________________________________________________________________________________________ Babu Singh V Pradeep Kumar page no. 6/6